Opinion of Mr Advocate General Van Gerven delivered on 29 June 1993. - Commission of the European Communities v BASF AG, Limburgse Vinyl Maatschappij NV, DSM NV, DSM Kunststoffen BV, Hüls AG, Elf Atochem SA, Société Artésienne de Vinyle SA, Wacker Chemie GmbH, Enichem SpA, Hoechst AG, Imperial Chemical Industries plc, Shell International Chemical Company Ltd and Montedison SpA. - Appeal - Competition - Commission decision - Non-existence. - Case C-137/92 P.



European Court reports 1994 Page I-02555

Swedish special edition Page I-00201

Finnish special edition Page I-00239



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The case before the Court is an appeal brought by the Commission under Article 49 of the Statute of the Court of Justice of the EEC against the judgment of 27 February 1992 of the Court of First Instance in the PVC cases (hereinafter referred to as "the PVC judgment" (1)). In that judgment the Court of First Instance declared that the measure notified to the respondents before this court, Commission Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC) (hereinafter referred to as "the Decision" (2)), was non-existent. The Commission claims that the Court should set aside the PVC judgment, with all the necessary legal consequences of such annulment and in particular refer the cases back to the Court of First Instance for a decision on the other issues raised by the applicants but not dealt with by the PVC judgment.

I shall divide up my arguments as follows. First, I shall discuss the objection raised by the respondents to the effect that the appeal is inadmissible as being out of time and, in general, the question as to the inadmissibility of the appeal on account of new facts raised by the Commission. Next I shall consider the complaints raised by the Commission against the PVC judgment and the arguments developed by the respondents. The complaints relate to (i) the assessment by the Court of First Instance of the changes made to the Decision, (ii) the conditions laid down in the EEC Treaty with regard to the adoption of measures by the Commission, more specifically with regard to the adoption of authentic language versions of a decision, (iii) the purpose and interpretation of Article 12 of the Commission' s Rules of Procedure, and (iv) the application of the theory of non-existent administrative acts. Before that, I shall briefly set out the background to the proceedings.

I - Background to the proceedings

2. As a result of investigations which it carried out on undertakings in the polypropylene sector in October 1983 pursuant to Article 14 of Council Regulation No 17 of 6 February 1962, (3) the Commission opened a file concerning polyvinylchloride (PVC). It undertook various investigations at the premises of the undertakings concerned and sent them several requests for information. On 24 March 1988 the Commission instituted a proceeding under Article 3(1) of Regulation No 17 against fourteen PVC producers. (4) By letter of 5 April 1988, the Commission gave the parties the opportunity of being heard on the matters to which the Commission took objection. (5) On 1 December 1988 the Advisory Committee on Restrictive Practices and Dominant Positions delivered its opinion on the Commission' s draft decision. Following this, the Commission adopted the Decision. It officially bears the date of 21 December 1988 and was notified to the parties concerned in February 1989. The text of the Decision is authentic in Dutch, English, French, German and Italian.

In the Decision, the fourteen PVC producers were found to have infringed Article 85(1) of the EEC Treaty by participating (for the periods identified in the Decision) in an agreement and/or concerted practices originating in about August 1980. It was alleged that under that agreement and/or concerted practice the producers supplying PVC in the Community took part in regular meetings in order to fix target prices and target quotas, to plan concerted initiatives to raise price levels and to monitor the operation of the said collusive arrangements (Article 1). Secondly, the Decision ordered the undertakings to bring the said infringement to an end forthwith and to refrain from the practices in question in the future (Article 2), and imposed an individual fine on each of the fourteen producers (Article 3).

3. Virtually all the undertakings concerned (6) brought actions before the Court of Justice, which, on 15 November 1989, referred the cases to the Court of First Instance. (7) They all claimed primarily that the Decision should be annulled and, in the alternative, that the Court should cancel or reduce the fines imposed by Article 3 of the Decision. (8)

Reference may be made to the Report for the Hearing for the reasoning of the Court of First Instance in the PVC judgment. It is sufficient for present purposes to state that the Court of First Instance decided to declare the Commission' s Decision non-existent in law, on the ground that (i) there had been "a manifest breach of the principle of the inalterability of the measure adopted", (9) (ii) the Member of the Commission responsible for matters of competition, who signed the measure, lacked the competence ratione materiae and ratione temporis to do so, (10) and (iii) the measure in question was not authenticated.

II - Objection of inadmissibility on account of failure to meet time-limits

4. All the appellants, with the exception of Shell ICC and Montedison, object that the appeal is inadmissible as being out of time. They contend that, since the PVC judgment was notified to the Commission on 28 February 1992, the appeal should have been brought within a period of two months of notification, pursuant to the first paragraph of Article 49 of the Statute of the Court of Justice of the EEC, that is to say, having regard to Article 80(1)(b) of the Rules of Procedure, (11) on 28 April 1992 at the latest. The Commission lodged its appeal at the Registry of the Court only on 29 April 1992.

In addition, according to the respondents, the Commission was not entitled to rely on the decision on extension of time-limits on account of distance. (12) Article 1 of that decision provides that extension of procedural time-limits on account of distance does not apply to parties habitually resident in the Grand Duchy of Luxembourg. Pending a final decision on the seat of the institutions, their provisional place of work must be taken as their habitual residence. Since the Commission performs a considerable proportion of its day-to-day work in Luxembourg and has a number of departments there employing a considerable number of officials, it likewise is habitually resident in that country.

5. I cannot share that view. It is true that, as the Court has consistently held, "the strict interpretation of Community rules on procedural time-limits serves the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice". (13) The Court also treats the question of the habitual residence of a party to proceedings - for the purposes of the application of procedural time-limits on account of distance - as a question of fact: as long ago as the judgments in the Fonzi cases the Court held that "The extension on account of distance is dependent solely on the facts, that is to say, on where the applicant has his place of residence". (14) However, in the case of legal persons or institutions it is usual to take as the criterion for determining the place of habitual residence the place where they have their registered office or seat. The Court has expressly held as regards the time-limit for a company' s bringing an action against a decision addressed to it that time starts to run as from the date of notification to the registered office of the company in question. (15) The determining factor for the purposes of calculating the procedural time-limit to which an institution such as the Commission is entitled is therefore - and this is how the word "seat" is to be understood - the place from which that institution is actually run, that is to say where the most important decisions concerning the institution' s activity are made and from which that activity is set in motion. (16)

6. It cannot be denied that this nerve centre is, as far as the Commission is concerned, located in Brussels. Admittedly, at the time when the Commission brought the appeal the seat of the Community institutions had not yet been definitively fixed (17) and the Decision of 8 April 1965 of the Representatives of the Governments of the Member States on the provisional location of certain institutions and departments of the Communities (18) was still in force. However, to my mind it cannot be inferred from that decision that the Commission has its "habitual residence" in Luxembourg. Articles 7, 8 and 9 of that decision merely list a number of Commission departments which are to be based in Luxembourg. For the rest, Article 12 of the decision provides that it does not affect "the provisional places of work of the institutions and departments of the European Communities", which, according to Article 1, are Luxembourg, Brussels and Strasbourg. Although it is not expressly stated in the decision, it is sufficiently known that the Commission as a decision-making body already had its place of establishment at Brussels under the provisional arrangements (19) and the establishment of a number of its departments in Luxembourg was to be compensation for the Grand Duchy for the transfer, under the Merger Treaty, (20) of the High Authority of the ECSC (which was previously in Luxembourg) to Brussels. (21) In any event, that arrangement was definitively confirmed by the Decision of 12 December 1992 taken by common agreement between the Representatives of the Governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities. (22) According to Article 1(c) of that decision, the Commission is to have its seat in Brussels and the departments listed in the above-mentioned provisions of the 1965 decision are to be established in Luxembourg.

7. I conclude from the foregoing that, even under the provisional arrangements, the Commission has its habitual residence in Brussels for the purposes of the application of the Court' s procedural time-limits and that it therefore, under Article 1 of the Decision on extension of time-limits on account of distance, is entitled to a two-day extension. As a result, its appeal was lodged in time and the objection of inadmissibility on account of failure to meet time-limits fails.

III - Objection of inadmissibility on account of new facts raised by the Commission

8. Most of the respondents also contend that the appeal is inadmissible on the ground that the Commission sets out therein a new statement of facts, with which the judgment of the Court of First Instance was not concerned. Since appeals before the Court of Justice are confined to points of law, the Commission should have confined itself to stating all the essential facts as set out in the judgment at first instance. However, it is claimed that the Commission omitted certain essential findings of the Court of First Instance, set forth some new matters and left out of account the majority of the findings resulting from the preparatory inquiries undertaken at first instance. In addition, it is claimed that in its appeal the Commission presents some essential aspects of the procedure before the Court of First Instance incorrectly.

9. In this respect it is sufficient for me to observe that the Court of First Instance has the last word when it comes to findings of fact. (23) Since the review carried out by the Court of Justice in appeals against judgments of the Court of First Instance is confined to points of law (Article 168a(1) of the EEC Treaty and Article 51 of the Statute of the Court of Justice of the EEC), the Court of Justice cannot rule on new facts which have been raised. That would necessitate a fresh assessment of the facts, which, as the Court of Justice has consistently held, is precluded:

"The appeal can be based only on pleas claiming infringement of rules of law, to the exclusion of any assessment of the facts, and is therefore admissible only in so far as it is claimed in the appeal that the decision of the Court of First Instance disregarded rules of law which it had to ensure were respected." (Unofficial translation) (24)

My starting point, therefore, is that in assessing the complaints set out by the Commission in its appeal - and the respondents' arguments likewise (25) - the findings of fact of the Court of First Instance only can be taken into account. Legally, therefore, the description of the factual background to the PVC case set out in the Commission' s appeal has no probative value and can be regarded only as a unilateral declaration. Consequently I do not have to consider that description more closely.

In contrast, I would stress forthwith that where the Commission in the part of its appeal concerning the law contests the grounds of the PVC judgment in so far as a legal inference made therein is connected with facts which the Court of First Instance has not duly established, an infringement of the law is invoked which must be declared in principle an admissible complaint. The plea "infringement of Community law", on which, under Article 51 of the Statute of the Court of Justice of the EEC, an appeal can be based, has a broad meaning: (26) according to the judgment in Vidrányi' s case, it includes not only the written rules of Community law but also the (unwritten) general principles which form part of the Community legal order. In that judgment, the Court accepted as a plea in law on appeal the infringement of the general principle of compliance with the rights of the defence and of the obligation for courts to give reasons for their decisions. (27) Drawing legal inferences from facts which have not been established or have not been duly established undoubtedly constitutes an infringement of the duty to state reasons, hence a complaint to that effect relates to an infringement of Community law and must therefore in principle be accepted by the Court as admissible. (28) I shall assess when discussing the relevant point (section 24 below) whether the pleas raised by the Commission to which the objection of inadmissibility relates satisfy those requirements.

IV - The assessment by the Court of First Instance of the changes made to the Decision

10. The Commission' s first plea for setting aside the PVC judgment claims error in law and defect of reasoning as regards the assessment by the Court of First Instance of the changes made to the Decision between the time when the meeting of the full Commission adopted it and the time when it was notified to the addressees. The Commission' s complaints relate to (i) the changes made to the German version of the Decision and (ii) the amendment made to all the language versions, namely the addition of a paragraph to point 27 of the Decision and the change made to the operative part of the Decision.

In order to understand the purport of the plea and the following discussion properly, it is appropriate first to quote paragraph 35 of the PVC judgment. That paragraph sets out the ground on which the Court of First Instance' s analysis of the changes made to the Decision is based. On the basis of the judgment of the Court of Justice in Case 131/86 United Kingdom v Council (29) - which I shall be discussing further in sections 13 and 14 - the Court of First Instance set forth the following considerations:

"The principle that a measure may not be altered once it has been adopted by the competent authority constitutes an essential factor contributing to legal certainty and stability of legal situations in the Community legal order both for Community institutions and for persons whose legal or factual situation is affected by a decision adopted by those institutions. Only rigorous and absolute observance of that principle can guarantee that, subsequent to its adoption, a measure may be amended only in accordance with the rules on competence and procedure and, consequently, that the notified or published measure constitutes an exact copy of the measure adopted, thus reflecting faithfully the intention of the competent authority."

A. The changes made to the German version of the Decision

1. The judgment of the Court of First Instance and the views of the parties

11. The Commission claims that the Court of First Instance erred in law in holding (i) that it was not necessary to consider whether the changes made to the German version were substantial and (ii) that those changes affected the lawfulness of the Decision as a whole in relation to all the applicants. I shall begin with the first point, but would initially call to mind the relevant passage of the PVC judgment.

The Court made the finding that the German version of the decision adopted by the full Commission at its meeting on 21 Decision 1998 exhibited "significant differences" compared to the English and French versions, on the one hand, - those three versions were all adopted at the meeting - and compared to the German version notified and published in the Official Journal on 17 March 1989, on the other hand, which "could not be regarded as mere corrections to spelling or grammar". (30) After listing the relevant differences (see section 14 below), the Court of First Instance held as follows in paragraph 42:

"Since those changes were made after the adoption of the measure on 21 December 1988 and do not merely relate to spelling or grammar, they must have been made by a person who was not empowered to do so and are therefore contrary to the principle that the measure adopted by the Commission may not be altered, there being no need to consider the scope, importance or substantial nature of those changes, as is apparent from the judgment of the Court of Justice in United Kingdom v Council, supra."

12. The Commission considers that, in its reading of the judgment in United Kingdom v Council, the Court of First Instance applied an erroneous interpretation of Article 190 of the EEC Treaty, the provision on which that judgment is based. According to that article "[r]egulations, directives and decisions of the Council and of the Commission shall state the reasons on which they are based and shall refer to the proposals or opinions which were required to be obtained pursuant to this Treaty". The Commission argues that, for there to be an infringement of Article 190, it must be proved that the changes made to the measure after its adoption are of a substantial nature. However, in the case at issue the changes consisted simply of linguistic improvements which affected neither the prerogatives of Members of the Commission nor, a fortiori, the rights of the addressees of the Decision. Finally, the Commission argues that it must retain the faculty of correcting a language version, even an authentic text, to bring it exactly into line with the version on which the measure is based.

For their part, the respondents argue that the differences between the version submitted to the full Commission and the German version notified go far beyond mere spelling and grammatical corrections, the only kind which, according to the judgment in United Kingdom v Council, may be accepted after the adoption of the measure. The distinction made by the Commission between substantial and non-substantial changes is not supported by the case-law and cannot be established by reference to objective criteria.

2. The judgment in Case 131/86 United Kingdom v Council

13. This brings me to a closer analysis of the judgment in United Kingdom v Council. In that case the Court was asked by the United Kingdom to annul Council Directive 86/113/EEC of 25 March 1986 laying down minimum standards for the protection of laying hens kept in battery cages. (31) The second plea was that the text of the directive differed in its preamble in three respects from the draft which had been submitted to the Council for adoption. The Court held that that plea was well founded and based its reasoning on the Council' s Rules of Procedure and on Article 190 of the EEC Treaty. After recapitulating the relevant provisions of the Council' s Rules of Procedure, the Court held - and I cite in extenso - as follows:

"However, the Council' s Rules of Procedure do not authorize the Secretary-General or the staff of the General Secretariat to make alterations or corrections to texts adopted by the Council. Although it is clearly part of the duties of the Council' s General Secretariat to correct spelling and grammar, that discretion cannot extend to the content of the measure in question.

(...) the alterations made by the Council' s General Secretariat concern only the statement of the reasons on which the directive is based and do not affect the body of the measure itself. However, that statement of reasons was prepared pursuant to Article 190 of the Treaty, which requires that regulations, directives and decisions of the Council and the Commission should contain a statement of the reasons which led the institution to adopt them, so as to make possible a review by the Court and so that the Member States and the nationals concerned may be aware of the conditions under which the Community institutions have applied the Treaty (see the judgment of 7 July 1981 in Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR 1805).

It follows that the statement of reasons is an essential part of a measure. Consequently, neither the Secretary-General of the Council nor the staff of its General Secretariat has the power to alter the statement of reasons for a measure adopted by the Council." (32)

Since it was established that the alterations made to the directive went far beyond simple corrections of spelling and grammar, the Court declared the directive void. (33)

3. Differences between the present case and Case 131/86

14. It appears to me that the Court of First Instance dealt rather lightly with some substantial points of difference between the circumstances at issue in United Kingdom v Council and the circumstances of the present case (see later in this section), together with the question (see sections 15, 16 and 17 below) as to what, in the light of the case-law of the Court of Justice on Article 190 of the EEC Treaty, is the precise test to be applied in order to assess whether or not particular changes made to an individual decision in a competition case after it has been officially adopted are unlawful.

As far as the first point is concerned, namely the considerable points of difference with regard to the circumstances, the two cases are different first of all in respect of the nature of the changes found. To my mind, it follows that it certainly cannot be inferred from United Kingdom v Council that "the scope, importance or substantial nature" of the changes can remain undiscussed. In contrast, in that judgment the Court of Justice drew a distinction between changes in the content of a measure, including the statement of reasons, and corrections of a purely linguistic nature. (34) The changes in the preamble which the Court had to consider in that case clearly fell into the first category: they concerned in particular the legal basis of the directive at issue (an added reference was made in the preamble to an article of the Treaty) and the deletion of a whole recital in the preamble. (35) Although the changes to the German version of the Decision which are mentioned by the Court of First Instance were not merely corrections of "spelling and grammar" within the meaning of the judgment in United Kingdom v Council, I consider that neither do they alter the content, that is to say the purport, of the statement of reasons of the Decision. The changes were manifestly made only in order to bring the German version of the Decision into line with the English and French versions (the amendments mentioned in the first and second indents of paragraph 41 of the judgment of the Court of First Instance (36)) or to remove a clerical error originating in the English version (change mentioned in the third indent (37)). The changes are, in any event, so minor and limited in coverage as to have no impact at all on the legal assessment of the infringement of Article 85 of the EEC Treaty or on the right of the addressees of the Decision to the fullest possible legal protection (see section 17 below).

A second major difference between the judgment in United Kingdom v Council and the present case, at least as regards this part of the first plea, is that only changes in one language version, the German, are involved, whilst in United Kingdom v Council changes were found to have been made in all the language versions. This seems to confirm that, as the Commission argues, the changes in the German version of the Decision were intended chiefly to render that version identical to the other language versions.

Finally, I would refer to a last - to my mind, essential - difference between the situation in United Kingdom v Council and the present case. In the former case, a Member State, which sits as a member of the Community institution concerned, the Council (see Article 2 of the Merger Treaty), rightly considered that its rights had been impaired on the ground that, after the directive at issue had been adopted by the Council, changes were made to it for which the appropriate decision-taking process had not been followed, so that it had been unable to take part in that process. The fact that the Member State concerned could rely on the rules of procedure of the Community institution of which it was a member in order to claim that the General Secretariat had no power to make alterations to an adopted text, was beyond dispute. (38) Likewise, the question whether the United Kingdom suffered any damage as a result of the infringement in question was irrelevant to the Court' s assessment: as the Court observed in the same judgment, (39) the first paragraph of Article 173 of the EEC Treaty gives each Member State the right to contest the legality of a directive without making the exercise of that right conditional on proof of an interest in bringing proceedings. The situation in the present case appears completely different, since it is concerned with a Commission decision in which the Commission, under Article 3(1) of Regulation No 17, held that there had been an infringement of Article 85 of the EEC Treaty: individuals - who, of course, can assert no rights as members of the relevant Community institution to the correct decision-taking procedure being followed (40) - may under the second paragraph of Article 173 of the EEC Treaty contest the legality of such a decision only in so far as the decision was addressed to them or is of direct and individual concern to them. (41)

4. The requirement laid down by Article 190 of the EEC Treaty to state reasons in individual decisions in competition cases

15. This leads me to my second point of criticism. The judgment in United Kingdom v Council, in which, as I have already mentioned, a directive was at issue, does not provide guidance exclusively about the question whether the requirement to state reasons, as laid down in Article 190 of the EEC Treaty, has been fulfilled. More specifically it does not provide guidance in a case such as the present one concerning an individual decision in a competition case. In fact, in that area the Court has developed extensive case-law with regard to the requirement to state reasons, which the PVC judgment wrongly ignores. This point of criticism, moreover, goes beyond the plea presently under discussion since the Court of First Instance has, in other respects, too, based its reasoning on the abovementioned interpretation of Article 190 of the EEC Treaty and of the judgment in United Kingdom v Council. (42)

16. As the Court of Justice has consistently held, the purpose of the requirement to state the reasons on which an individual decision is based is

"to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by a defect which will allow its legality to be contested". (43)

The statement of grounds required by Article 190 of the EEC Treaty must therefore disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question. (44) The precise extent of the duty to provide a statement of grounds depends, however, on the type of measure involved and on the circumstances in which the measure was adopted: (45) in that connection, account should be taken in particular of the context in which the decision was taken, the practicalities and the time and technical facilities available for making such a decision, (46) and the possible interest which the addressees or the other parties to whom it is of direct and individual concern within the meaning of the second paragraph of Article 173 of the EEC Treaty may have in the decision. (47)

More specifically with regard to competition cases, the Court has held that the requirement laid down in Article 190 to state the grounds on which a decision is based is satisfied where the Commission decision refers to the matters of fact and law on which the legal justification for the measure is based. (48) The Commission does not have to discuss all the matters of fact and of law which may have been dealt with during the administrative procedure. (49) In contrast, it is enough that it sufficiently set out the considerations of fact and of law on which it relied in arriving at the operative part of its decision, or in other words that it provided the persons concerned with the information necessary to enable them to decide whether or not the decision was well founded. (50) In particular, in the case of decisions imposing a fine, the Court has held that

"the statement of reasons is to be considered sufficient if it indicates clearly and coherently the considerations of fact and of law on the basis of which the fine has been imposed on the parties concerned, in such a way as to acquaint both the latter and the Court with the essential factors of the Commission' s reasoning". (51)

According to the Court there is no infringement of the requirement to state reasons laid down in Article 190 where "[t]he decision, considered as a whole, sets out clearly and coherently the essential elements of fact and law on which it is based". (52) Neither is there such an infringement where the Commission omitted factors from its decision which it considered, rightly or wrongly, to be irrelevant. (53) Even if certain passages were not drawn up with the accuracy to be desired, there is no infringement of essential procedural requirements within the meaning of Article 173 if that fact has prevented neither the applicants nor the Court from grasping the extent of the complaint made by the Commission and from determining whether it is well founded. (54) However, where the statement of reasons is given in too summary a manner, there will be such an infringement in particular where the Commission goes appreciably further than previous decisions. (55)

17. In my view, the following guiding principles can be derived from that case-law of the Court with regard to the significance of Article 190 of the EEC Treaty in competition cases. The requirement to state grounds laid down in that provision is not of an absolute but of a relative nature, in the sense that it is intended to enable the addressees of a decision to know and to defend their rights as well as possible. (56) They must therefore be informed in a sufficiently clear and coherent way of the main points of the Commission' s reasoning, that is to say, with regard to the considerations of fact and of law which are necessary in order for them to appreciate the well-foundedness of the decision taken against them.

Secondly, the statement of reasons must put the Court in a position to carry out the review of legality with which it is charged by Article 173 of the EEC Treaty in proceedings brought by the addressees of a decision in a competition case. That principle, too, serves the need to provide the addressees of the measure concerned with the fullest possible legal protection.

If, however, the shortcomings complained of by the parties are not of such a kind as to affect the legal situation of the undertakings concerned, (57) or, in other words, to affect their right to the fullest possible legal protection, an infringement of Article 190 of the EEC Treaty is not involved.

5. The aforementioned case-law seen in relation to the contested changes

18. More specifically as regards the question at issue, namely the status under Article 190 of the EEC Treaty of (limited) changes made between the time when a decision in a competition case was adopted and the time when it was notified and published, I consider that the judgments in particular in the Suiker Unie and Hasselblad cases are relevant. (58)

In the Suiker Unie case, one of the parties relied on a mistake which occurred only in the French version of the decision notified to the parties, namely 1969/70 was stated as being the year in which the infringement of the competition rules commenced rather than 1968/69. The Court ruled against that party, which sought to abide by the French text notified to it: the notification of objections indicated clearly the marketing year from which the Commission intended to find that the applicant had engaged in the relevant concerted practice and it also appeared from the pleadings that the party in question had plainly understood the decision in that sense. In those circumstances, the Court decided that the decision had to be interpreted as finding that there had been an infringement of competition law from 1968/69 onwards. (59)

In the Hasselblad case, the point at issue was an error in all the language versions of the notified and published text of a decision in indicating the clauses of a dealer agreement which was found to conflict with Article 85(1) of the EEC Treaty. One of the contested clauses occurred only in a later, amended version of the dealer agreement, whilst two other clauses were numbered differently in the original version of the agreement. Nevertheless the Court considered that this was not an insuperable barrier and held that the decision had to be deemed to refer to the clauses intended (but wrongly indicated) by the Commission:

"If in that respect a clerical error was made in the decision, that error cannot have had any material effect on the applicant' s understanding of the Commission' s objections." (60)

19. The judgments in the Suiker Unie and Hasselblad cases strengthen me in the conclusion which I arrived at earlier (in section 17), namely that, in assessing whether the requirement laid down in Article 190 of the EEC Treaty to state reasons is satisfied, the Court is guided in the first place by the question as to whether the addressees of the decision were sufficiently, that is to say, sufficiently clearly and coherently, apprised of the complaints made against them. In both those cases that condition was fulfilled. If the Court could reach the conclusion that isolated discrepancies between the various language versions of the notified version of a decision or, as the case may be, clerical errors in all the language versions of the notified text were not such as to call in question the validity of the relevant decision on the ground that they did not have any material effect on the understanding of the Commission' s objections, I cannot see how it can be decided, on the basis of Article 190 of the EEC Treaty, that a decision containing limited linguistic or minor substantive corrections in the German version which were made before the decision was notified to the parties, that is to say before the parties could officially have become apprised of the Commission' s decision, is unlawful. (61) In so far as a problem does arise in that regard, it arises exclusively in connection with the powers of the person who made the relevant changes (see section 44 below).

20. In the light of the foregoing, I can take the following view of the Commission' s first complaint. In so far as it paid no attention to the "the scope, importance or substantial nature" of the changes made to the Decision after its adoption, the Court of First Instance, to my mind, gave too absolute an interpretation to the judgment in United Kingdom v Council. It appears from the case-law of the Court of Justice on the requirement to state reasons as laid down in Article 190 of the EEC Treaty with regard to decisions in competition matters, that the test for ascertaining whether that requirement has been fulfilled is not so much whether such changes go further than corrections to "grammar or spelling", but whether they materially affected the respondents' understanding of the Commission' s complaints and thereby impaired their right to the fullest possible legal protection. Contrary to the respondents' view, that test seems to me to be completely objective and sufficiently manageable to permit effective judicial review. Since the Court of First Instance did not apply that test, Community law has been infringed.

6. Alternatively: has the legality of the Decision as a whole been affected in relation to all the addressees?

21. In view of the decision which I have reached above, strictly speaking I do not need to consider the second infringement of the law raised by the Commission, namely the question whether the changes made to the German version of the Decision were capable of affecting the entire Decision in relation to all the addressees. However, in the alternative, in case the Court, contrary to what I have argued above, should decide to regard the contested changes as constituting an infringement of Article 190 of the EEC Treaty, I shall consider this argument.

In that connection, it should first be stated that, as the respondents have observed, the Court of First Instance did not say in so many words that the legality of a decision is affected as a whole by changes made in a particular language version after its adoption by the meeting of the full Commission. Yet, in my view, this appears to be necessarily implied by paragraph 42 of the PVC judgment, more specifically in the following clause: "[the changes] are therefore contrary to the principle that the measure adopted by the Commission may not be altered". It is even plainer if that passage is read in conjunction with paragraph 49 of the PVC judgment, in which the Court of First Instance held that "amendments made to the statement of reasons for a decision constitute, as the Court of Justice has held, a defect of such a nature as to affect the legality of the amended decision in its entirety because they undermine the effectiveness of Article 190 of the Treaty ...". (62) The starting point must therefore be that the Court of First Instance did associate the relevant changes in the German version of the Decision with the invalidity of the entire Decision, that is to say, in all the other language versions and in relation to all the other addressees.

I take the view that that conclusion is manifestly disproportionate. To my mind, the infringement of Article 190 (assuming there is one) can affect the validity of only the authentic German version of the Decision. According to the fourth paragraph of Article 189 of the EEC Treaty, one of the essential characteristics of a decision is that it is an individual legal measure. (63) A decision is intended to apply a general rule (in this case Article 85 of the EEC Treaty) in a specific case: therefore it will be binding only on the persons to whom it is expressly addressed and, by virtue of Article 3 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic

Community, (64) only in the language of the Member State under whose jurisdiction the addressee comes. Defects in statements of reasons occurring in only one language version of a decision therefore affect only the legal position of the addressees to whom that language applies.

Contrary to what Huels AG, Société artésienne de vinyle (hereinafter referred to as "SAV") and Shell ICC argue, that position cannot be altered by the fact that, in this case, the Commission adopted only one decision, albeit in various authentic versions. Indeed, in the judgment in Suiker Unie the Court held as follows:

"There is no reason at all why the Commission should not make a single decision covering several infringements, even if some of the undertakings to which it is addressed are unconnected with some of these infringements, provided that the decision permits each addressee to obtain a clear picture of the complaints made against it". (65)

Changes in the German version of a decision affect in no respect whatsoever the ability of addressees to whom the decision is notified in another authentic language, namely theirs, to obtain a clear picture of the complaints made against them. Changes made in one authentic language therefore have no effect on the legality of the decision in the other authentic languages.

Consequently, I consider that there has been an infringement of Community law in respect of this point in so far as a disproportionate sanction was imposed.

B. The changes made to all the language versions of the Decision

1. The judgment of the Court of First Instance and the views of the parties

22. In addition to the changes made in the German version of the Decision, the Court of First Instance found, in the context of the measures of investigation which it ordered, two changes made to all the language versions of the Decision between the time when it was adopted by the full Commission and the time when it was notified: (i) the incorporation of a completely new fourth paragraph in point 27 of the Decision (see section 27 below for its wording) and (ii) the omission from Article 1 of the operative part of the words "(EMC Group)" after the name of the undertaking SAV.

The Commission contests the Court of First Instance' s assessment of the two changes, in each case by two pleas, which I may summarize as follows. As regards the first change, it argues that the Court of First Instance (i) erred in point of reasoning, in considering that the paragraph added in all the language versions to point 27 of the Decision was not approved by the full Commission and that the substantial nature of the changes made was undeniable; (ii) erred in law, in holding that it was unnecessary to consider whether the paragraph in question was substantial in nature; and (iii) erred in law by stating that its inclusion affected the legality of the Decision in its entirety. As far as the second change is concerned, the Commission claims that the Court of First Instance was mistaken (i) in point of reasoning, in holding that the deletion of the addition "(EMC Group)" was of a kind to alter the scope of the Decision and (ii) in point of law, in holding that that omission affected the legality of the Decision in its entirety and in relation to all the applicants.

2. Objection of inadmissibility on account of new facts raised?

23. Before I consider all those complaints, I must examine the objection of inadmissibility raised by most of the respondents in so far as the Commission raises new facts therein which were not dealt with by the Court of First Instance. It is claimed that, notably in paragraphs 5 and 38 of its appeal, the Commission has raised new facts, in particular with regard to the discussions at the special meeting of the Chefs de Cabinet held in the morning of 19 December 1988, to that which the Chefs de Cabinet decided that day at their ordinary weekly meeting to recommend to the Commission and to that which the full Commission discussed at its meeting on 21 December 1988.

24. As I mentioned earlier (in section 9), the Court of Justice is in principle bound by findings of fact made by the Court of First Instance. Consequently, the Court of Justice cannot be influenced by new factual data adduced by the parties. In fact, in paragraphs 5 and 38 of its appeal the Commission mentions three factual particulars not found by the Court of First Instance in its judgment which it may therefore not rely on before the Court of Justice:

- In paragraph 5 it quotes the conclusion of the minutes of the special meeting of the Chefs de Cabinet held in the morning of 19 December 1988 from which, it is claimed, it appears that it was agreed to propose, following a suggestion from the Cabinet of the Member of the Commission responsible for competition, that a paragraph be added to point 27 of the draft decision, the French and English versions of which were set out in Annex III to those minutes. However, that conclusion does not appear in that part of those minutes (a document bearing the number SEC (88) 2033), which was produced by the Commission at the hearing on 21 November 1991. (66)

- Still in paragraph 5 of its appeal, the Commission states that at their ordinary meeting, held in the afternoon of 19 December 1988, the Chefs de Cabinet recommended the Commission to adopt the proposal from the Member of the Commission responsible for competition matters on the terms set out in the minutes of the special meeting held that morning. However, the Court of First Instance did not make such a finding of fact in its judgment.

- Lastly, the Commission states in paragraph 38 of its appeal that, at its 945th meeting, held on 21 December 1988, the full Commission, after "some discussion of general matters such as the level of the fines ... fully endorsed the recommendations of the Chefs de Cabinet". This is not confirmed by the findings of fact made by the Court of First Instance either. On the contrary, the Court of First Instance considered that, in view of the wording of the minutes of the relevant meeting of the full Commission held on 21 December 1988, it is merely established that the Commission took note of the examination of the matter by the Chefs de Cabinet of the Members of the Commission at their special meeting and weekly meeting on 19 December 1988 (but see section 25 below). (67)

In so far as the Commission' s argument is based on those factual data it must be declared inadmissible. In concrete terms, in my view, the inadmissibility means only that the Court of Justice, in assessing the complaint set out by the Commission in paragraph 38 of its appeal - which I have referred to in section 22 concerning the first change under (i) -, should leave those newly raised facts out of account. However, this does not mean that the whole of the complaint is inadmissible: the aim of the (whole of the) complaint is essentially that the Court of First Instance did not fulfil its duty to state reasons in so far as it concluded that the paragraph in question was not approved by the full Commission on the ground of inadequate findings of fact. To that extent, the complaint must be declared admissible and considered (see section 9 above).

3. Consideration of the complaints in connection with the addition of a new paragraph

25. According to the Commission, the Court of First Instance failed to fulfil the duty to state reasons by failing to make sufficient findings of fact with a view to its decision that the newly added paragraph (see section 27 below for its wording) was not approved by the full Commission. If the complaint is understood to that effect, closer appraisal shows, in my view, that the Commission' s complaint must be held to be well founded. The interpretation given by the Court of First Instance to the minutes of the relevant Commission meeting is an essential part of its reasoning in reaching the decision that the paragraph in question was not approved by the full Commission. On the basis of that document, the Court of First Instance held in paragraph 46 that it is merely established that the Commission took note of the examination of the case by the Chefs de Cabinet at their special meeting on 19 December 1988. (68) Moreover, in paragraph 47 the Court of First Instance held that "it is apparent from the minutes of the meeting themselves (as described above at paragraph 37) that the Commission, in adopting the drafts of 14 December 1988 which did not contain that paragraph, by implication intended not to adopt the amendment". However, if reference is made to the text of the minutes themselves - and not to the summary of those minutes contained in paragraph 37 of the PVC judgment - one finds that the following is expressly stated in section 2 thereof:

"La Commission prend connaissance du résultat de l' examen de cette question par les Chefs de Cabinet lors de leur réunion spéciale (cf. doc. SEC (88) 2033, point 11) et lors de leur réunion hebdomadaire (cf. doc. SEC (88) 1958, point 16)." [The Commission took note of the results of the examination of that matter by the Chefs de Cabinet at their special meeting (cf. doc. SEC (88) 2033, point 11) and at their weekly meeting (cf. doc. SEC (88) 1958, point 16).]

I find that the way in which the Court of First Instance reproduces that point in paragraph 37 of the PVC judgment is not entirely accurate: (i) the Court does not state that the point in question expressly refers to the minutes of the special meeting of the Chefs de Cabinet (reference number SEC (88) 2033, which, according to the documents and declaration produced by the Commission on 21 November 1991, had appended to it Annex III containing the added paragraph (69)); and (ii) the Court merely finds that the full Commission took note of the examination of the matter by the Chefs de Cabinet, whereas the relevant section of the minutes states that the full Commission took note of the results of the examination by the Chefs de Cabinet at their special meeting and - contrary to the assertion by the Court of First Instance in paragraph 46 of the PVC judgment - at their ordinary meeting.

It follows in my view that the conclusion to which the Court of First Instance comes, namely that the full Commission implicitly indicated that it did not wish to take over the proposed addition, is based on an inaccurate description of the facts. On the contrary, it appears to me from the facts set out above that if the full Commission had not wished to take over the proposed addition - of which, in view of section 2 of the minutes, to which I referred earlier, it was manifestly aware - this would in all probability have been recorded in the minutes. In other words, it appears from the factual information that the full Commission implicitly accepted, rather than implicitly rejected, the addition suggested by the Chefs de Cabinet. That point in itself constitutes an infringement by the Court of First Instance of its duty to state reasons, since it based legal consequences on insufficiently established facts.

26. In addition in connection with the above, I also consider that the Commission' s second complaint with regard to the added paragraph - see section 22 above concerning the first change under (ii) - is well founded, as I will demonstrate next. The complaint consists of the charge that the Court of First Instance was in breach of its duty to state reasons in so far as it held that the substantial nature of the contested paragraph did not have to be considered and moreover could not be denied. In contrast, according to the Commission the non-substantial nature of the paragraph is obvious: it forms part of the considerations relating to a procedural question which arose in the course of the administrative procedure under Regulation No 17 and does not form part of the reasoning constituting the necessary basis for the operative part of the Decision.

Before examining this second complaint, allow me to quote the contested passage of the PVC judgment:

"That addition to the statement of reasons for the decision, which relates neither to syntax nor grammar, therefore affects the validity of all the measures notified and of the measure published in the Official Journal of the European Communities, by virtue of the judgment of the Court of Justice in United Kingdom v Council, supra, and it is unnecessary to examine whether the amendment is of a substantial nature - a point which in any event is not in doubt." (70)

27. The added paragraph reads as follows:

"It should be pointed out that any waiver by the undertakings of confidentiality for their internal business documents is subject to the overriding interest in ensuring that competitors are not informed of each other' s commercial activities and intentions in such a way that competition between them is restricted."

To my mind, it is clear that the principles set out above (in sections 17, 19 and 20) must also be applied to this question: the test for establishing whether changes made to a decision infringe the requirement to state reasons which is laid down in Article 190 of the EEC Treaty is whether they had a material effect on the respondents' understanding of the Commission' s complaints and consequently impaired their right to the fullest possible legal protection.

In my view, in assuming that "it is unnecessary to examine whether the amendment is of a substantial nature - a point which in any event is not in doubt"- the Court of First Instance wrongly neglected to consider whether the addition in question had had a material effect on the respondents' understanding of the criticism levelled at them with regard to the infringement of Article 85 of the EEC Treaty and, as a result, on their right to full legal protection. To my mind, however, no such material effect was present. The added paragraph is concerned with the question - described by the Court of First Instance as difficult and controversial - whether, in a case where a proceeding instituted under Article 85 concerns a number of undertakings, the Commission may accept the waiver by one of the undertakings of confidentiality for information concerning it or whether overriding considerations - such as safeguarding the Community rules on competition - prevent it from doing so. (71) In other words, the paragraph is not concerned with the reasons for the Decision in so far as they are important to the undertakings concerned from the point of view of their proper understanding of the Commission' s complaints concerning agreements contrary to Article 85 of the EEC Treaty, but merely relates to a procedural issue (as appears, moreover, from its location within the Decision in the part headed "Procedural issues"), namely whether the Commission complied with rights of defence in the course of the administrative procedure.

On a closer reading of the whole of point 27 of the Decision - where the key question is whether the Commission infringed rights of defence of a number of the respondents by rejecting their demands for full access to its administrative files - it further becomes clear that the new paragraph has only limited significance: it merely clarifies why the Commission decided not to accede to the demands of the majority of the undertakings that each of them might be allowed to inspect, on the basis of reciprocal waivers of confidentiality, all the documents which the Commission had obtained from the other undertakings. Strictly speaking, the new paragraph was not even necessary for that purpose, first because it is stated in the preceding paragraph that de facto the Commission would have no objection to the undertakings' exchanging copies of documents amongst themselves and secondly because de jure in the next paragraph (which appeared in full in the draft decision) the Commission justifies its refusal to divulge the contents of documents on the basis of the established case-law of the Court of Justice, such as the judgment in VBVB and VBBB v Commission. In that case, the Court held as follows:

"although regard for the rights of the defence requires that the undertaking concerned shall have been enabled to make known effectively its point of view on the documents relied upon by the Commission in making the findings on which its decision is based, there are no provisions which require the Commission to divulge the contents of its files to the parties concerned." (72)

28. This leads me to reach the following conclusion. Even accepting that the full Commission did not take over the paragraph added to point 27 (see, with regard to that issue, section 25 above), the assessment made by the Court of First Instance of this amendment on the basis of the judgment in United Kingdom v Council to a large extent comes up against the same objections as I raised earlier with regard to its assessment of the changes made in the German version: seen from the point of view of Article 190 of the EEC Treaty, the test is not whether the discrepancies between the version of a decision adopted by the Commission and the version notified to the addressees relate to "grammar or syntax", but whether the changes had a material effect on the respondents' understanding of the Commission' s complaints and, consequently, had an adverse impact on their legal position in point of legal protection. By ignoring that test - and also by neglecting to consider the importance of the contested addition sufficiently in the light of that test -, the Court of First Instance failed to comply with Community law and to fulfil its duty to state reasons, respectively.

In view of the foregoing, I take the view that it is unnecessary to consider the Commission' s third complaint - set out in section 22 above, first change, under (iii) -, namely that the sanction imposed by the Court of First Instance was excessive.

4. Examination of the complaints relating to the omission of the words "(EMC Group)" from the operative part of the Decision

29. The Commission objects that the reference in question was purely descriptive and had no legal significance. The reference, which was hardly used at all in the various phases of the procedure, was, it is claimed, deleted when the lawyer-linguists revised the Decision, in order to avoid any ambiguity. The Commission further argues that no explanation whatsoever was given by the Court of First Instance for its statement that the removal of the reference to the EMC Group may alter the manner in which the alleged infringement is attributed and even shift the financial burden of the fine imposed.

In contrast, SAV argues that the omission from the operative part of the Decision of the reference to the EMC Group - an omission which affects it particularly - may influence the manner in which the alleged infringement is attributed and shift the financial burden of the fine imposed.

30. My I briefly recapitulate what the Court of First Instance decided in this respect. After finding that the reference in question was included in the drafts submitted to the full Commission but was omitted from the version notified to the respondents and published in the Official Journal, the Court of First Instance held that such an amendment conflicts with Article 190 of the EEC Treaty:

"Amendments to the operative part of a decision directly affect the scope of the obligations which may be imposed on individuals by the amended measure or the scope of the rights which it confers upon them. In this case such an amendment may alter the manner in which the alleged infringement is attributed, and even shift the financial burden of the fine imposed." (73)

The Court of First Instance then held that there were even stronger grounds for applying the principles laid down in United Kingdom v Council,

"where, as in this case, the amended measure imposes fines and obligations on the addressees of the measure and where the amendment in question may alter the description of the legal person upon whom the obligations are imposed. That is the necessary consequence of the amendment to Article 1 of the operative part of the decisions, in which the Commission, on the basis of the considerations set out in the statement of reasons, forms a legal definition of the facts in terms of Article 85 of the EEC Treaty and designates the undertakings guilty of infringements. Consequently, such an amendment necessarily has a direct effect on the other articles of the operative part which, by issuing orders to the applicants and imposing fines on them and by determining the method by which the addressees of the measures may release themselves from their obligations, merely set out the consequences necessarily flowing from Article 1 of the operative part, the very article to which an amendment was made." (74)

31. Could the amendment in question alter the manner in which the alleged infringement is attributed to SAV and therefore have a material effect on the respondent' s understanding of the Decision and on its right to legal protection, which was taken as the decisive test above (section 17)? It follows without doubt from the case-law of the Court of Justice that where an undertaking is integrated into a group in a such a way that it loses all autonomy, the parent company must, where appropriate, bear (part) responsibility for conduct by its subsidiary which conflicts with the competition rules. Since the "dyestuffs" case, the Court has consistently held that "the fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company" and that "such may be the case in particular where the subsidiary, although having separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company". (75)

However, in this case I am by no means convinced that the reference to or the omission of the words "(EMC Group)" from Article 1 of the operative part of the Decision (76) had or could have had any effect on the imputability of the infringement found in the Decision. In the first place, it is clear that neither the draft decision nor the version notified to the addressees and published in the Official Journal contained in Articles 3 and 4 of the operative part any reference to SAV' s being part of the "EMC Group". Furthermore, contrary to the view taken by the Court of First Instance in paragraph 50 of its judgment, I consider that the Decision is absolutely unambiguous in imposing a specific fine on SAV and only on that undertaking (Article 3) and in prescribing how the fine is to be paid (Article 4). Lastly, the preamble to the Decision refers consistently only to SAV as such, without describing it as a subsidiary of any parent company. (77)

32. It follows from the whole of the above that, regard being had to the text of the Decision as a whole, (78) the contested amendment had, and could have had, no effect at all on the imputability of the alleged infringement to SAV or therefore on that undertaking' s understanding of the Decision and its right to legal protection. In so far as it ignored that test and failed to apply it to the contested amendment, the Court of First Instance failed to comply with Community law and to fulfil its duty to state reasons, respectively.

33. This brings me to the Commission' s last complaint, namely that the Court of Justice wrongly held that the omission of that reference affected the legality of the entire Decision in relation to all the respondents. I can link this to what I have said (in section 21) about the changes made in the German version: the omission of the reference "(EMC Group)" after SAV could have had no impact on the ability of the other undertakings to which the Decision is addressed accurately to read in the Decision what complaints were made against them, and certainly could have had no effect on the imputability of the infringement of Article 85 of the EEC Treaty with which they themselves were charged.

V - The requirements of the EEC Treaty as to the coming into being of acts of the Commission, more specifically with regard to the adoption of authentic language versions of a decision

34. The Commission takes the view that the PVC judgment is based on a manifestly excessively formalistic interpretation of the requirements of the EEC Treaty with regard to the action of the full Commission in adopting measures. It argues that the judgment is based on a legal misconception in so far as it requires the full Commission to be involved in the adoption of all the authentic language versions of its measures. The requirements of the EEC Treaty and of the Rules of Procedure as regards the action of the full Commission were, it maintains, fully complied with with respect to the adoption of the Decision.

1. The judgment of the Court of First Instance and the views of the parties

35. I shall turn to the parties' specific arguments forthwith. I would, however, first state precisely what was decided on this point at first instance. The contested paragraphs are located in the part of the PVC judgment in which the Court of First Instance considers the powers of the authority which adopted the Decision and, more specifically, examines whether the Member of the Commission responsible for competition matters was empowered to adopt the Dutch and Italian versions of the Decision which were notified and published in the Official Journal. A number of applicants before the Court of First Instance claimed that the authority which adopted the Decision lacked the necessary competence on the ground that it appeared from the minutes of the 945th meeting of the full Commission that the full Commission adopted the Decision only in its English, French and German versions and authorized the Member of the Commission responsible for competition matters, at that time Mr P. Sutherland, to adopt the other official language versions, namely the Dutch and Italian. Moreover, it appears that those language versions were not submitted to the General Secretariat of the Commission until 16 January 1989, whilst Mr Sutherland' s mandate expired on 5 January 1989.

In the first place, in paragraph 55 of its judgment, the Court of First Instance infers the following from Article 3 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (79) read together with the first paragraph of Article 12 of the Commission' s Rules of Procedure: (80)

"It follows from those provisions taken together that, where as in this case the Commission intends to adopt by a single measure a decision which is binding on a number of legal persons for whom different languages must be used, the decision must be adopted in each of the languages in which it is binding in order to avoid making authentication impossible."

The Court of First Instance subsequently rejects the Commission' s argument that the mandate conferred upon the Member of the Commission responsible for competition matters by the full Commission in order to adopt the Dutch and Italian versions of the Decision complied with Article 27 of the Rules of Procedure. (81) In its view, the adoption of a decision applying Article 85(1) of the EEC Treaty does not constitute a measure of management or administration within the meaning of Article 27 of the Rules of Procedure. (82) It is, according to the Court, "apparent from the aforesaid first paragraph of Article 27 ..., in conjunction with the second paragraph thereof," that the full Commission may delegate authority to one of its members to adopt such a decision solely in those official languages of the Community in which the text is not authentic, since the decisions adopted in those languages do not produce any legal effect and are not enforceable against one or more of the undertakings mentioned in the operative part of the decision. (83) The Court of First Instance eventually decides on the ground set out in the following paragraph of its judgment that the Member of the Commission responsible for competition matters lacked competence ratione materiae to adopt the Decision in Dutch and Italian:

"The effects flowing from the adoption of a decision in its authentic language version are entirely different. A decision which establishes an infringement of Article 85 of the Treaty, issues orders to a number of undertakings, imposes large fines upon them and is directly enforceable for these purposes clearly affects the rights and obligations and the property of those undertakings. It cannot be regarded merely as a measure of management or administration whose adoption falls within the powers of a single Member of the Commission since this would be directly contrary to the principle of collegiate responsibility expressly referred to in Article 27." (84)

36. The Commission concedes that decisions taken against undertakings in relation to Article 85 et seq. of the EEC Treaty always need to be taken collectively. Where, however, such as in case of the decision at issue, the full Commission has adopted a decision the text of which is drawn up in one, two or three official Community languages, it has correctly carried out its duties. In taking a decision, a distinction has to be made between the intellectual and formal components. The intellectual element is situated at an internal stage of the decision-taking, in the formation, after examining and discussing the file, of a collective view; in contrast, the formal component consists of all the measures of execution which definitively give the measure its effect in law (drafting, translation, finalization, notification and publication). Only the first component involves the exercise of any discretionary powers and it is therefore only in that connection that action by the full Commission makes any sense. Since the translation of a decision, including the adoption of the authentic language versions, is a purely administrative executive measure, it must be possible for such steps to be taken without express specific habilitation by the full Commission, on the authority of the appropriate Member of the Commission. In that connection, the Commission further observes that the habilitation which was given to the Member of the Commission responsible for competition matters according to the minutes of the 945th meeting was not a habilitation in the strict sense of Article 27 of the Rules of Procedure: it was not even an administrative or management measure but a task admitting of no room for manoeuvre and no exercise of discretion. The Commission maintains that should the Court nevertheless hold that a habilitation within the meaning of that provision was involved, the habilitation would a fortiori be in accordance therewith.

For their part, the respondents argue chiefly that the distinction made by the Commission between the intellectual and formal components of a decision is completely artificial and has no basis in the EEC Treaty, the Rules of Procedure or the Court' s case-law. At the hearing, they further submitted that if the Commission is right, that would preclude the authentication procedure laid down in Article 12 of the Rules of Procedure from being used for language versions which had not been submitted to the full Commission for adoption. As a result, Article 12 would lose its binding nature.

37. In the next sections I shall address the central issue here, namely whether or to what extent the Commission, after adopting a decision relating to competition matters addressed to undertakings in one or more language versions, may proceed, under Article 27 of its Rules of Procedure, to delegate the adoption of (other) authentic language versions of the decision to the Member of the Commission responsible for competition matters. I shall not now examine whether the Court of First Instance gave, in paragraph 55 of its judgment (cited in section 35 above), a correct interpretation of Article 12 of the Rules of Procedure: this will become clear from the analysis of that provision set out in the next part of my opinion.

2. The principle of collegiate responsibility and the criteria for delegation set out in the case-law of the Court of Justice

38. A short sketch of the legal background appears to me to be necessary. It is well known that the principle of collegiate responsibility underlies the Commission' s decision-taking process. (85) At treaty level, that principle is reflected in the first paragraph of Article 17 of the Merger Treaty, which states that "The Commission shall act by a majority of the number of [its] members". (86) This is elaborated on by the Rules of Procedure, which provide, inter alia, that the Commission is to act collectively in accordance with the Rules of Procedure (Article 1) and that acts of the Commission are, as a general rule, to be adopted at meetings (Article 2). The Court of Justice itself appositely set out the rationale for the principle of collegiate responsibility in its judgment of 23 September 1986 in AKZO v Commission:

"The principle of collegiate responsibility thus laid down [that is to say, in Article 17 of the Merger Treaty] is founded on the equal participation of the members of the Commission in the adoption of decisions and it follows from that principle, in particular, that decisions should be the subject of a collective deliberation and that all the members of the college of Commissioners bear collective responsibility on the political level for all decisions adopted." (87)

However, the Rules of Procedure themselves contain a number of exceptions to this collegiate method of decision-taking, in particular the so-called written procedure under Article 11 (by which the approval of the Members of the Commission is obtained by written means) and, particularly, the delegation of powers under the first paragraph of Article 27. Since its amendment in 1975 (88) that provision reads as follows:

"Subject to the principle of collegiate responsibility being respected in full the Commission may empower its members to take, in its name and subject to its control, clearly defined measures of management or administration." (89)

39. Is the Commission entitled, in the context of and in particular on the basis of the first paragraph of Article 27 of its Rules of Procedure (quoted above), to entrust the Member of the Commission responsible for competition matters with the adoption of a decision in one or more of the authentic languages, other than the one in which the draft decision was submitted to the Commission and approved by it collegiately?

In order to answer that question I shall consult the case-law of the Court of Justice, where to my mind the aforementioned judgment of 23 September 1986 in the AKZO case is of decisive importance. I would mention that, before both the Court of First Instance and the Court of Justice, the Commission has relied upon that judgment in support of its view that the procedure followed in this case was consistent with the principle of collegiate responsibility. (90) The Court of First Instance was evidently not convinced thereby, since it treated the AKZO judgment as a precedent only as regards the possibility afforded by Article 27 of the Commission' s Rules of Procedure of adopting measures of inquiry and procedure during the Commission' s preparatory administrative phase, that is to say, measures adopted under the general powers of investigation conferred upon the Commission by Regulation No 17. (91)

40. The AKZO case was concerned with an action for a declaration of nullity brought by two undertakings in the AKZO Group against a decision taken by the Member of the Commission responsible for competition matters ordering those undertakings to submit to investigations pursuant to Article 14(3) of Regulation No 17. The undertakings argued, inter alia, that the delegation of authority under which the contested decision was adopted was not in accordance with the principle of collegiate responsibility laid down in Article 17 of the Merger Treaty.

The Court of Justice rejected that plea in strong terms. In order to assess the compatibility with the principle of collegiate responsibility of the authorization procedure as provided for in particular in Article 27 of the Commission' s Rules of Procedure, it first recalled its settled case-law, according to which

"the Commission could, within certain limits and subject to certain conditions, authorize its members to adopt certain decisions in its name without the principle of collegiate responsibility which governed its functioning being impaired by such authorization". (92)

Next, the Court explained that two considerations underlay that settled case-law:

"On the one hand, such a system of delegation of authority does not have the effect of divesting the Commission of powers by conferring on the member to whom authority is delegated powers to act in his own right. Decisions adopted under a delegation of authority are adopted in the name of the Commission, which is fully responsible for them, and may be the subject of an application for annulment under the same conditions as if they had been considered by the full Commission. Moreover, the Commission has set up machinery making it possible to reserve for the full Commission certain measures which could be adopted under a delegation of authority. Finally, it has retained the right to reconsider the decisions granting delegations of authority.

On the other hand, limited to specific categories of measures of management or administration, and thus excluding by definition decisions of principle, such a system of delegations of authority appears necessary, having regard to the considerable increase in the number of decisions which the Commission is required to adopt, to enable it to perform its duties. The need to ensure that the decision-making body is able to function corresponds to a principle inherent in all institutional systems and which is set out in particular in Article 16 of the Merger Treaty, according to which 'the Commission shall adopt its rules of procedure so as to ensure that both it and its departments operate ...' ." (93)

41. I infer the following from that passage. In the first place, it appears to me that the scope of those paragraphs of the judgment go far beyond the dispute in AKZO, all the more since the wording used by the Court sets out principles - and does not merely address the measures of procedure taken pursuant to Regulation No 17 which preceded the decision at issue - and only proceeded in subsequent paragraphs to apply those principles to the actual position under discussion in the AKZO case. (94)

Next, it seems to me that the idea underlying the Court' s argument approving the Commission' s delegation and authorization procedure is that the principle of collegiate responsibility must be rendered consonant with, and therefore limited by, the principle of the proper functioning of the decision-making body, an institutional principle which, according to the Court (and this statement too is important: see section 55 below), is the hallmark of the Commission' s Rules of Procedure. In view of the increasing number of decisions having to be taken by the Commission, the Court even considers the authorization procedure to be necessary in the light of that principle for the due performance of the Commission' s tasks, at least as far as certain categories of measures of management and administration are concerned.

Lastly, the Court develops two criteria which the authorization procedure should fulfil if it is to be compatible with the principle of collegiate responsibility. In the first place, the authorization should comply with certain limits as regards powers, which means (i) that the Commission may not let the power out of its hands - in other words, the delegated power may not be transformed into an actual power transferred to a Member of the Commission - in order that there may be no doubt as to "the identity and powers of the decision-making body, namely the Commission"; (95) (ii) that the Commission must continue to bear full responsibility (an essential element of the principle of collegiate responsibility); and (iii) that it should retain the power to reserve a delegated matter to itself as the full Commission and to reconsider decisions granting delegations of authority. In the second place, actions must be able to lie against decisions taken pursuant to authorization under the same conditions as if they had been taken by the full Commission. In other words, the legal protection afforded to the addressees may not be affected: they may not be deprived of the opportunity of contesting the legality of the decision delegating authority or of the decision adopted under the delegation of authority. (96)

3. The various levels of decision-making powers

42. In my view, the criteria elaborated by the Court in the AKZO judgment are completely compatible with the other judgments in which the Court considered the question of the delegation of authority in relation to Community institutions. If those judgments are read together, a distinction can be drawn as regards the exercise by the Commission of its powers in the sphere of competition policy grosso modo between three levels.

In the first place, there is the exercise of power at the political level. This is at the heart of the policy-making power which the EEC Treaty confers on the Commission in the sphere of competition, whereby the Commission gives shape to its competition policy by means of general administrative measures or individual decisions. (97) To use the words of the test set out in the judgment in the AKZO case, what is involved here is "decisions of principle" which must be reserved to the full Commission. It is clear that, as the Court of First Instance emphasized in the PVC judgment (98) in common with the Commission in its appeal, the adoption of decisions against undertakings under Article 85 et seq. of the EEC Treaty belongs in this category: such decisions are subject to broad policy-making powers and powers of assessment and necessitate the Commission' s taking a view on complex economic and legal situations. In that context, the principle of collegiate responsibility must be strictly adhered to, with the result that to delegate the taking of such decisions is strictly prohibited. (99)

So-called measures of management and administration in the narrow sense of the expression are on a second level. In competition cases, such measures include above all measures of investigation, which are measures which the Commission proceeds to take during the preparatory decision-making phase with a view to establishing the existence of practices contrary to the competition rules. There is a certain margin of discretion associated with the taking of such measures - albeit (also because of the preparatory nature of the measures in question) a limited one. This category includes, for example, decisions which the Commission may take under Article 14(3) of Regulation No 17 ordering undertakings to submit to investigations. In the AKZO judgment, the Court held that, in so far as the criteria set out above (in section 41) are met, the exercise of that power may be delegated to the Member of the Commission responsible for competition matters:

"... a decision ordering an undertaking to submit to an investigation is a form of preparatory inquiry and as such, must be regarded as a straightforward measure of management ... even if the undertakings are opposed to the investigation". (100)

Finally, there is the level of practical execution, including measures relating purely to internal organization. Strictly speaking, no delegation of power is involved: the measures in question are for the practical execution of decisions which have already been taken, such as the communication or transmission of decisions to the addressees and other practical implementation measures. (101) Such practical implementing measures include no discretion. A well-known example is the power conferred on the Director-General for Competition to notify objections within the meaning of Article 2 of Commission Regulation No 99/63/EEC. The Court has repeatedly endorsed the lawfulness of that practice in the light of Article 27 of the Commission' s Rules of Procedure: the official in question "acted not under a delegation of powers, but merely under an authorization to sign which he had received from the Member of the Commission". (102) Such conferral of authorization to sign, according to the Court, constitutes "a measure relating to the internal organization of the departments of the Commission" (103) and is "the normal method by which the Commission exercises its powers". (104)

4. Application of the difference in levels of decision-taking to the questions at issue in this case

43. Before considering this distinction in connection with the questions at issue in this case, I would like to make the following remark concerning the use of languages in the internal functioning of a Community institution such as the Commission. In common with all the Community institutions, the Commission works officially in all official languages of the Community. (105) This does not, however, prevent it from using one or more Community languages as its official working language, provided that in its external action it fully complies with the principle of the equality before the law of all official Community languages, as laid down in Regulation No 1. (106) The choice of such working language or languages may, in the terms of the judgment in AKZO (see section 41 above), appear necessary for the proper functioning of the Commission as a body with decision-taking power, that is to say, for the purposes of effective deliberation and decision-making. In that respect, I consider that the full Commission may, in competition cases, too, take a decision on the basis of a draft decision drawn up in one or more of the Commission' s working languages: what is important is that, in the light of the principle of collegiate responsibility, all Members of the Commission should be in a position to participate, on the basis of a language of which they have a command, in the discussion and decision-making (see section 38 above). (107)

The respondents' argument that providing a draft decision in all authentic language versions to the full Commission constitutes a guarantee for the purposes of supervising those versions (since at least one Member of the Commission whose mother tongue is one of those languages concerned can check the relevant language version) cannot be taken seriously: Members of the Commission act at the level of deliberation and decision-making - which, as I have already stated, can take place for practical reasons in one or more of the Commission' s working languages - and not at the level of the linguistic supervision of a text.

44. This leads me to take the following view. The principle of collegiate responsibility is fulfilled where the full Commission, on the basis of one or more (working-)language versions actually deliberated and decided to take a decision finding an infringement of Article 85 of the EEC Treaty and imposing the related sanctions. That this actually happened in this case is disputed by none of the parties and appears moreover from the findings of fact made by the Court of First Instance. (108)

Contrary to the view taken by the Court of First Instance, I consider that authority given to the Member of the Commission responsible for competition matters to adopt the text of a decision which was adopted by the full Commission (in one or more working languages) in the other language versions (whether or not authentic) must be regarded as being a measure of practical execution or of internal organization: essentially, only authority is granted to carry out practical executive measures, namely the preparation of a translation, and, where necessary, coordination with the other language versions, of a decision which has already been taken.

In any event, even if, regard being had to the authentic nature of (some of) the language versions to be adopted, it were to be assumed that the authorization given by the full Commission to the Member responsible for competition matters according to the minutes of its 945th meeting was a measure of administration or management in the narrow sense of the expression, I consider that the Commission was entitled to give that authorization. On close inspection, the requirements laid down in that respect in the AKZO judgment were fulfilled. Thus, in the first place, as regards the limits to authority which have to be complied with, it is clear that, as a result of the authorization, the Commission did not divest itself of the power to take a decision of principle or abdicate its collegiate responsibility for the decision: from reading the minutes it is clear that the Commission itself first adopted the Decision in a working language (actually in several working languages, namely English, French and German) and then asked the Member of the Commission responsible for competition matters to transpose the text of the Decision into the other official languages. Consequently, the authorization cannot reasonably be construed as the grant of authority to adopt a new decision, but only as the conferral of authority to arrange, on the Commission' s behalf, for the Decision to be transposed into the other (authentic and non-authentic) language versions in accordance with the version of the Decision adopted in English, French and German. In addition, the legal protection of the undertakings to which the Decision was addressed in the relevant authentic language versions was in no way affected: they were entitled to bring an action for annulment - as they in fact did - under completely the same conditions as if the Decision in the language versions concerned had been adopted by the full Commission itself. Besides, according to the PVC judgment, none of the respondents to whom the Decision was addressed in Dutch or Italian made any submission on this point at first instance. (109)

45. I therefore conclude that the Court of First Instance infringed Community law by holding that the full Commission was not entitled to authorize the Member of the Commission responsible for competition matters to adopt the text of the Decision in the other authentic language versions, namely Dutch and Italian. I would emphasize, however, that the foregoing assessment of the appraisal made by the Court of First of the lack of competence ratione materiae of the Member of the Commission responsible for competition matters is completely distinct from the question of the competence ratione temporis of the Member in question, Mr Sutherland, to notify the Decision to the addressees. On the basis of the finding of fact made by the Court of First Instance to the effect that the Decision both in the five authentic languages and in the four other official Community languages was not definitively prepared - that is to say, translated and revised by the lawyer-linguists - until the end of January 1989, it cannot be denied that Mr Sutherland, whose mandate expired on 5 January 1989, was not empowered any more to notify the Decision to the addressees in his name but on behalf of the Commission. It is plain that that notification should have been effected by Mr Sutherland' s successor. I shall examine in the last part of my Opinion whether this shortcoming is such as to affect the legality or even the existence of the Decision.

VI - Purpose and interpretation of Article 12 of the Commission' s Rules of Procedure with regard to the authentication of decisions

46. According to the Commission, the PVC judgment is marked by excessive formalism and by a misapprehension in regard to the meaning and scope of the authentication of decisions under Article 12 of the Commission' s Rules of Procedure. The formalities laid down by Articles 10 (relating to the approval of the minutes of Commission meetings) and 12 of the Rules of Procedure (concerning the authentication of decisions adopted by the Commission) (110) serve merely to provide a record for the Commission and, as such, have merely internal effects. According to the Commission, they are not essential to the adoption and existence of such acts and, even less, do they render measures enforceable or ensure that they are fully incorporated into Community law. In contrast, a measure enters the external legal order of the institution only by coming into force or by becoming applicable to those to whom it is addressed, that is, by its publication or notification in accordance with Article 191 of the EEC Treaty.

47. There are, in my view, two closely related key legal questions involved here, namely (i) what legal significance is to be ascribed to the authentication of Commission decisions under Article 12 of the Commission' s Rules of Procedure and (ii) may third parties invoke a failure to comply with that provision. In order to deal with these questions properly, I shall first consider the case-law which the Court of Justice has developed more generally with regard to the legal status and invocability of the rules of procedure of a Community institution or body.

A. Status and invocability of rules of procedure according to the case-law of the Court

1. Treaty provisions and precedents in the case-law

48. All the Community institutions, with the exception of the Court of Justice and the Court of First Instance (which have rules of court - known in English also as "Rules of Procedure" (111)), have rules of procedure, which they had to establish by virtue of the EEC Treaty or the Merger Treaty. (112) As far as the Commission is concerned, the duty arises under Article 16 of the Merger Treaty, which provides as follows:

"The Commission shall adopt its rules of procedure so as to ensure that both it and its departments operate in accordance with the provisions of the Treaties establishing the European Coal and Steel Community, the European Economic Community, and of this Treaty. It shall ensure that these rules are published."

Consequently, Article 16 of the Merger Treaty confers a power on the Commission to organize itself. (113) This institutional autonomy, which, according to the judgment in the AKZO case, reflects a "principle inherent in all institutional systems" (section 39 above) is however - unlike in the case of the other institutions (114) - expressly stated as being subject to the Commission and its departments operating in accordance with the Community Treaties. (115)

49. For the rest, the Treaties do not embody express rules on the legal status of the relevant rules of procedure or on the question of their invocability. The Court of Justice has considered these aspects with reference to the Council' s Rules of Procedure in its judgment of 7 May 1991 in Nakajima v Council. (116) In that judgment the Court was concerned with an anti-dumping case in which Nakajima claimed that a definitive anti-dumping regulation should be declared void. To that end, it argued inter alia that essential procedural requirements had been infringed, on the ground that the Council had acted in breach of two provisions of its Rules of Procedure: it alleged that the period laid down for drawing up the provisional agenda for the Council meeting had not been complied with (infringement of Article 2) and that not all the language versions of the regulation were available on the day when it was adopted (infringement of Article 8). (117) The Court rejected those arguments in strong terms:

"With regard to this point, it should be noted that the purpose of the rules of procedure of a Community institution is to organize the internal functioning of its services in the interests of good administration. The rules laid down, particularly with regard to the organization of deliberations and the adoption of decisions, have therefore as their essential purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the institution.

It follows that natural or legal persons may not rely on an alleged breach of those rules since they are not intended to ensure protection for individuals." (118)

50. There has been a lot of discussion about the value as a precedent for this case of the judgment in Nakajima. The Commission relied upon it already at the hearing at first instance in support of its contention that third parties are not entitled to invoke Article 12 of the Commission' s Rules of Procedure. However, the Court of First Instance emphatically dismissed that approach:

"... that argument cannot be accepted. The Court considers that that judgment must be interpreted as meaning that it is necessary to distinguish between those provisions of an institution' s Rules of Procedure whose infringement may not be relied upon by natural and legal persons because they are concerned solely with the internal working arrangements of the institution and cannot affect their legal situation and those whose infringement may be relied upon because, as is the case with Article 12 of the Commission' s Rules of Procedure, they create rights and are a factor contributing to legal certainty for such persons." (119)

Before the Court of Justice the Commission again invoked the judgment in Nakajima. At the hearing the Commission' s representative argued that, although the Court of First Instance had discussed that judgment - which was delivered after the written procedure at first instance had closed -, the judgment had not been given the attention which it deserved with regard to the questions at issue in this case.

2. The so-called "settled case-law" of the Court of Justice concerning invocability

51. I shall later consider whether the Commission' s criticism is correct. First, I would clear up another criticism voiced by the Commission at the hearing, namely that in paragraph 77 of its judgment the Court of First Instance wrongly reached the conclusion that, according to a consistent line of decisions of the Court of Justice, it is permissible for third parties to plead an infringement of the rules of procedure of a Community institution. Although the judgments cited by the Court of First Instance in that connection do refer to the rules of procedure of a Community institution, in none of those cases was an infringement of the relevant rules of procedure raised by the applicant and reviewed by the Court of Justice.

In paragraph 77 of the PVC judgment, the Court of First Instance refers to a considerable number of judgments of the Court of Justice in staff cases but also in "other areas of Community law" and claims that:

"[according to] a consistent line of decisions of the Court of Justice ... it is admissible for natural and legal persons to plead an infringement of the Rules of Procedure of a Community institution in support of their claims against a measure adopted by that institution (see in that regard the numerous judgments concerning Community staff law, in particular Joined Cases 94 and 96/63 Bernusset v Commission [1964] ECR 297; Case 178/80 Bellardi-Ricci and Others v Commission [1981] ECR 3187; Case 324/85 Bouteiller v Commission [1987] ECR 529, as regards solely the Commission' s Rules of Procedure; also see in other areas of Commu