Keywords

Summary



Keywords

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1. Measures adopted by the institutions - Inalterability after their adoption - Amendment of the statement of reasons or the operative part - Infringement of the principle of legal certainty - Illegality

(EEC Treaty, Arts 189 and 190)

2. Competition - Administrative procedure - Decision establishing an infringement - Adoption under delegated authority in an authentic language - Infringement of the principle of collegiate responsibility - Illegality

(EEC Treaty, Art. 85; Commission' s Rules of Procedure, Art. 27)

3. Competition - Administrative procedure - Decision establishing an infringement - Decision unsigned and drawn up after the expiry of the mandate of the Member of the Commission who signed the accompanying letters - Illegality

(EEC Treaty, Art. 85; Commission' s Rules of Procedure, Art. 12(3) )

4. Action for annulment - Pleas in law - Infringement of essential procedural requirements - Infringement by an institution of its Rules of Procedure - Provisions relating to the preparation, adoption and authentication of measures adopted by the institution - Plea put forward by a natural or legal person - Admissibility

(EEC Treaty, Art. 173; Commission' s Rules of Procedure, Arts 10 and 12)

5. Measures adopted by the institutions - Non-existent measure - Concept

(EEC Treaty, Arts 189, 190 and 192, second paragraph)

Summary

1. 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 can 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.

Amendments other than those relating to spelling or syntax made to the statement of reasons for a decision constitute a defect of such a nature as to affect the legality of the amended decision in its entirety because, first, such amendments undermine the effectiveness of Article 190 of the Treaty and, secondly, substantively alter the reasoning which forms the necessary foundation for the operative part of a decision. The same applies with even greater force to any amendment to the operative part of such a measure. Such an amendment directly affects 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.

2. 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 property of those undertakings. The adoption in the authentic language of such a decision cannot therefore 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 of the Commission' s Rules of Procedure.

3. A Member of the Commission may sign the covering letters accompanying a decision establishing an infringement of Article 85 of the Treaty adopted by the Commission with a view to its notification to its addressees and its publication in the Official Journal of the European Communities, in accordance with Article 12, third paragraph, of the Commission' s Rules of Procedure. However, such a signature, placed on the documents the day on which the mandate of the Member of the Commission expired, does not remedy the defect of lack of competence vitiating the measure if it is established that it is drawn up after the date on which the mandate of the Member of the Commission expires. Consequently, a measure which does not bear the written signature of any authority and which appears to have been definitively drawn up at the earliest after the expiry of the mandate of the Member of the Commission is vitiated by illegality owing to the lack of competence ratione temporis of its issuer.

4. It is admissible for natural and legal persons to plead an infringement of the Rules of Procedure of a Community institution in support of an action for annulment directed against a measure adopted by that institution, where the provisions whose infringement is pleaded create rights and are a factor contributing to legal certainty for such persons. That applies to the provisions relating to the preparation, adoption and authentication of Community measures laid down by Articles 10 and 12 of the Commission' s Rules of Procedure.

5. Where it is impossible, in respect of a measure, to determine with sufficient certainty the precise date from which it was capable of producing legal effects and hence of being incorporated into the Community legal order or, owing to amendments made to it, to ascertain with certainty the precise terms of the statement of reasons which it must contain under Article 190 of the Treaty, or to define and verify clearly the extent of the obligations which it imposes on its addressees or the description of those addressees or to identify with certainty the authority which issued the definitive version, and in respect of which it is established that the authentication procedure provided for by the Community rules was completely disregarded and that the procedure laid down by the second paragraph of Article 192 of the Treaty cannot be implemented, such a measure cannot be regarded as a decision for the purposes of Article 189 of the Treaty.

A measure vitiated by particularly serious and manifest defects of such a kind forfeits the presumption of validity attaching to any administrative measure in Community law and is to be considered non-existent. Such a measure produces no legal effects and may be challenged outside the limitation periods.