Opinion of Mr Advocate General Cosmas delivered on 15 July 1997. - Imperial Chemical Industries plc (ICI) v Commission of the European Communities. - Appeal - Rules of Procedure of the Court of First Instance - Reopening of the oral procedure - Commission's Rules of Procedure - Procedure for the adoption of a decision by the College of Members of the Commission. - Case C-200/92 P.



European Court reports 1999 Page I-04399



Opinion of the Advocate-General

In this case the Court of Justice is called upon to deliver judgment on the appeal of Imperial Chemical Industries PLC (hereinafter `ICI') brought pursuant to Article 49 of the EEC Statute of the Court of Justice against the judgment of the Court of First Instance of 10 March 1992. (1) The judgment under appeal dismissed the action brought by the appellant company pursuant to Article 173 of the EEC Treaty (hereinafter `the Treaty') against the Commission's decision of 23 April 1986 (hereinafter the `Polypropylene decision'). (2) That decision concerned the application of Article 85 of the Treaty in the polypropylene production sector.

I - Facts and course of the procedure before the Court of First Instance

1 As regards the facts of the dispute and the course of the procedure before the Court of First Instance, the judgment under appeal relates as follows: Before 1977 the west European polypropylene market was supplied almost exclusively by ten producers, one of which (and also one of `the big four') was ICI, with a market share fluctuating between approximately 10.6 and 11.4%. After 1977 and following the expiry of the controlling patents held by Montedison, seven new producers appeared with substantial production capacity. This was not accompanied by a corresponding increase in demand, with the consequence that demand did not match supply, at least until 1982. More generally, for the greater part of 1977-1983, the polypropylene market was characterized by low profits or even significant losses.

2 On 13 and 14 October 1983 Commission officials, acting under the powers conferred by Article 14(3) of Council Regulation No 17 of 6 February 1962 (3) (hereinafter `Regulation No 17'), carried out simultaneous investigations in a number of undertakings operating in the polypropylene production sector. Following those investigations, the Commission addressed requests for information, under Article 11 of Regulation No 17, to the above companies, and also to other related undertakings. From the evidence obtained during the course of those investigations and from the requests for information, the Commission concluded that, between 1977 and 1983, certain polypropylene producers, including ICI, had been acting in contravention of Article 85 of the Treaty. On 30 April 1984 the Commission decided to open the proceedings provided for by Article 3(1) of Regulation No 17 and sent a written statement of objections to the undertakings in contravention.

3 At the end of that procedure, the Commission adopted the abovementioned decision of 23 April 1986, which has the following operative part:

`Article 1

(The Companies) ... ICI PLC ... have infringed Article 85(1) of the EEC Treaty, by participating: ... in the case of Hoechst, ICI, Montepolimeri and Shell from about mid-1977 until at least November 1983 ... in an agreement and concerted practice originating in mid-1977 by which the producers supplying polypropylene in the territory of the EEC:

(a) contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meetings so as to discuss and determine their commercial policies;

(b) set "target" (or minimum) prices from time to time for the sale of the product in each Member State of the EEC;

(c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of "account management" designed to implement price rises to individual customers;

(d) introduced simultaneous price increases implementing the said targets;

(e) shared the market by allocating to each producer an annual sales target or "quota" (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period (1981, 1982).

...

Article 3

The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

...

(xiii) ICI PLC, a fine of 10 000 000 ECU, or £ 6 447 970 ... .'

4 Fourteen of the fifteen companies which were the addressees of the Commission decision, including the appellant, brought an action for its annulment. At the hearing before the Court of First Instance, which took place from 10 to 15 December 1990, the parties presented oral argument and answered questions from the Court.

5 By letter lodged at the Registry of the Court of First Instance on 4 March 1992, when the written and oral procedure had, as stated above, been completed, but nevertheless before judgment had been delivered, ICI asked the Court of First Instance to reopen the oral procedure. In support of that request it relied on certain factual evidence of which, it maintained, it had only become aware after the conclusion of the oral procedure and, in particular, after delivery of the judgment of 27 February 1992 of the Court of First Instance in the related cases BASF and Others v Commission (hereinafter `the "PVC" cases'). (4) ICI alleged that that evidence had brought to light serious procedural defects in the contested decision, the investigation of which required further measures of inquiry.

By its abovementioned decision of 10 March 1992, the Court of First Instance, after hearing the views of the Advocate General once again, rejected the request to reopen the oral procedure. At the same time it reduced the fine imposed and rejected the remainder of the application.

6 ICI lodged an appeal against that decision, requesting the Court to set it aside and to recognize the non-existence or invalidity of the Commission's Polypropylene decision, or, in the alternative, to refer the appeal back to the Court of First Instance. At the same time it asked for an order that the respondent pay the costs. In its observations on the appeal, ICI stated that, following the judgment of the Court of Justice in PVC, (5) it was no longer claiming that the Polypropylene decision was non-existent but maintained its pleas regarding the invalidity of the decision.

The Commission requests that the Court dismiss the appeal and order the appellant to pay the costs.

DSM NV intervened in the appeal in support of ICI.

II - Admissibility of the intervention

7 With regard to the admissibility of the intervention of DSM in the present case, in principle the same considerations apply as are set out in the corresponding points of my Opinion in the related case Hüls. (6) From that analysis the following conclusions may be drawn:

DSM's intervention in the present case could be held partially admissible as regards the part in which the intervener lends support to the appellant's request that the Court, after setting aside the judgment of the Court of First Instance, hold the Polypropylene decision non-existent. The remaining claims in the intervention or the arguments upon which it relies in order to support other claims in the appeal need not, in any case, be considered as to their substance since they are not admissible.

However, in the present case, the appellant withdrew, in its reply, its arguments concerning the non-existence of the Polypropylene decision; that is to say, it has reduced its claims and now seeks annulment of the decision, not a declaration that the decision in question is non-existent. In consequence, DSM's intervention is rendered inadmissible, in the absence of a legal interest.

III - The provisions in question and the Court's PVC judgment

I would refer to points 19 to 23 of my Opinion in Hüls.

IV - The judgment under appeal

8 The Court of First Instance dismissed the claims contained in the applicant's request of 4 March 1992 on the following grounds, which are set out in paragraph 401 of the judgment under appeal:

`It must be stated that the judgment delivered in the abovementioned cases (judgment of 27 February 1992 in Cases T-79/89, T-84/89 to T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR II-315) does not in itself justify the reopening of the oral procedure in this case. The Court observes that a measure which has been notified and published must be presumed to be valid. It is thus for a person who seeks to allege the lack of formal validity or the inexistence of a measure to provide the Court with grounds enabling it to look behind the apparent validity of the measure which has been formally notified and published. In this case the applicants have not put forward any evidence to suggest that the measure notified and published had not been approved or adopted by the members of the Commission acting as a college. In particular, in contrast to the PVC cases (judgment in Cases T-79/89, T-84/89 to T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89, cited above, paragraphs 32 et seq.), the applicants have not put forward any evidence that the principle of the inalterability of the adopted measure was infringed by a change to the text of the Decision after the meeting of the college of Commissioners at which it was adopted.'

V - Grounds of appeal A - Arguments of the parties

(a) Pleas submitted by the applicant

9 ICI relies in its pleadings, first, on defects in the procedure followed before the Court of First Instance and, secondly, on infringements of Community law which it alleges the Court of First Instance committed in deciding its case. In particular, it maintains that in refusing to reopen the oral procedure and to order new measures of organization of the procedure as it had requested, the Court of First Instance acted in infringement of substantive and procedural rules of Community law, adversely affecting the applicant's rights of defence. ICI considers that the judgment under appeal, as regards the rejection of the request that the oral procedure be reopened, is based on reasoning that is wrong in law. At all events, the Court of First Instance was bound, maintains the appellant, to accede to the requests it had submitted in its letter of 4 March 1992, since they were based on facts and arguments of crucial significance for the resolution of the dispute, which it was not possible to put forward at an earlier stage in the proceedings; in giving a negative response to that letter, the Court of First Instance did not fulfil its obligation properly to use the powers conferred upon it by the Rules of Procedure.

10 In the alternative, the appellant maintains that the Court of First Instance should, of its own motion, have annulled the contested decision on the grounds of infringement of an essential procedural requirement. In addition, inasmuch as those substantial procedural defects fall within the category of grounds of annulment to be reviewed of the Court's own motion, the Court is bound to examine them of its own motion and to take the appropriate steps to enable it to reach a decision on them. In particular, the appellant maintains that the reasoning contained in paragraph 401 of the judgment under appeal, rejecting its claims that the oral procedure should be reopened and measures of organization of procedure ordered, is wrong in law.

11 ICI observes, first, that the Court of First Instance was mistaken when it considered that ICI was relying on the PVC judgment of the Court of First Instance (7) to support its claims. The crucial point raised in its letter was not the PVC judgment but the statements of the Commission's agents at the hearing in those cases. The inference to be drawn from those statements was that the Commission had deliberately failed to comply with a number of procedural rules when adopting both the PVC decision and other related decisions, including the Polypropylene decision.

12 Further, ICI considers the reasoning of the Court of First Instance, according to which the applicant had not put forward any evidence to suggest that the contested decision had not been adopted by the Members of the Commission acting as a college, to be unfounded in so far as the said statements of the Commission's agents at the hearing of the PVC cases before the Court of First Instance made it quite clear that the procedure laid down in Article 12 of the Commission's Rules of Procedure was no longer complied with when decisions were adopted. The same Commission agents defended the Commission's practice of subsequently altering the content of decisions after their adoption and empowering one of the Members of the Commission to draw up the text of its decisions in certain of the authentic languages. In ICI's view, therefore, there was sufficient evidence to suggest that such irregularities also took place when the Polypropylene decision at issue was adopted.

13 According to the appellant, the reasoning of the contested judgment is defective in stating that a party who relies on the lack of procedural validity or the non-existence of a decision is bound to put forward grounds enabling the Court to look behind the `apparent validity' of the decision owing solely to its notification and publication. ICI considers that that reasoning is wrong in law. Since the evidence from which the existence of procedural defects in the Polypropylene decision can be inferred is exclusively in the possession of the Commission, and ICI has no access thereto, it is contrary to the principles of fairness, equal treatment of the parties and legal certainty to prevent a challenge to the validity of a decision because the applicants were not in a position to be aware of the relevant evidence to challenge it in time. At all events the appellant considers that the evidence it included with its letter of 4 March 1992 was sufficient to cast doubt on the `apparent validity' of that decision.

14 With regard to the statement in the judgment under appeal according to which the applicant had not put forward any evidence before the Court of First Instance that `the principle of the inalterability of the adopted measure was infringed', ICI observes that it is true that it had not produced evidence to show that the content of the decision had been altered after its adoption. However, that failure can be explained by the fact that, contrary to the situation in the PVC cases, the text of the Polypropylene decision notified to it did not reveal obvious changes and alterations. Nevertheless it can be inferred that there were alterations both from the admissions of the Commission's agents in the PVC cases and from the fact that a long period elapsed between the date on which the decision was adopted (23 April 1986) and its notification (22 May 1986). At all events, however, ICI points out that, on the basis of what was accepted by the Court of Justice in the PVC judgment, the absence of evidence of alteration of the content of the decision at issue could not justify rejection of its request to reopen the procedure, inasmuch as the crucial question was whether Article 12 of the Commission's Rules of Procedure had been complied with; since there were no longer any doubts on that score after the statements of the Commission's agents in the PVC cases, the Court of First Instance should have reopened the procedure.

15 In particular, the appellant observes that, according to the PVC judgment of the Court of Justice, authentication of the Commission's decisions constitutes an essential procedural requirement under Article 12 of the Commission's Rules of Procedure and failure to comply with that requirement alone constitutes a sufficient ground to annul the invalid decision, without there being any need to adduce further evidence to rebut the presumption of the legality of that decision or to show that its content had been altered after its adoption. Consequently, the decision reached in the judgment under appeal, according to which infringement of Article 12 of the Commission's Rules of Procedure does not automatically entail the invalidity of the decision vitiated by that infringement, is wrong in law and accordingly should be set aside.

16 In addition, the appellant points out that the Court of First Instance was wrong in law in holding that ICI had not produced the `evidence' required in order for its request for reopening of the oral procedure to be upheld. On the issue of the evidence which it was required to produce in support of the requests contained in its letter, the appellant points out as follows: first, in its view, it was not necessary to produce any evidence; both the Court of First Instance, originally, and the Court of Justice at the appeal stage, may marshall on their own initiative the necessary evidence and annul the Polypropylene decision of their own motion for infringement of an essential procedural requirement. At all events, however, ICI considers that it complied with the rules on the burden of proof and submitted both the documents and evidence required under those rules. On that point the appellant considers it useful to review the solutions accepted by the Court of First Instance in recent judgments where it was confronted with exactly the same question of law as that raised in the case before the Court. (8)

17 The appellant also considers it useful to emphasize that its allegation concerning the above procedural defects in the Polypropylene decision was not made out of time; consequently the alleged defects should have been assessed by the Court of First Instance. The appellant relies on the abovementioned provisions of Article 48(2) of the Rules of Procedure of the Court of First Instance which, according to the interpretation which it considers correct, allow the submission of new pleas at any stage of the proceedings if they are based on matters which come to light in the course of the procedure. ICI maintains that the procedure terminated only when the judgment at issue was delivered by the Court of First Instance and consequently reliance on evidence which only became known after the oral procedure had been concluded and the submission of new pleas was generally possible on 4 March 1992, the date on which it submitted its letter to the Court of First Instance. The possibility of supplementing pleas until the judgment of the Court of First Instance has been delivered also follows from Articles 49 and 62 of the Rules of Procedure. Moreover, ICI observes that in the similar cases PVC, LdPE, (9) AAC, (10) and Soda Ash (11) the Court of First Instance agreed to examine exactly the same pleas raised by the applicant companies in those cases, although they had not been put forward at the proper time. Moreover, the Court of Justice, in the PVC cases, did not question the finding of fact by the Court of First Instance that one of the companies involved (Montedison, to be exact) had not raised procedural defects in the contested decision in its pleadings but first relied on them at the hearing. The appellant concludes from the view taken by the Court of Justice in its PVC judgment that it is procedurally possible to raise the plea of procedural defects in the contested decision even after the conclusion of the written procedure. Lastly, the appellant adds that, at all events, the question whether its letter and the pleas raised therein were out of time does not have any practical significance inasmuch as the Court of First Instance should have examined those pleas of its own motion.

18 As regards the duty to investigate of its own motion procedural defects in contested decisions outside the procedural time-limits, the appellant points out that it relies on the principles of procedural economy and proper administration of justice as recognized in the case-law. (12)

(b) Respondent's contentions

19 For its part, the Commission sets out a different approach to the interpretation of the provisions of Community law at issue and to the conclusions that should be drawn from the judgment of the Court of Justice in the PVC cases. According to the Commission, there is no doubt that parties who have a lawful interest are bound to plead the procedural defects in the decision that they have challenged and to produce the relevant evidence in due time. From the procedural point of view, if reliance is placed on such defects, they should be pleaded with the application initiating proceedings, unless the pleas in question are based on evidence which became known in the course of the procedure. Particularly in a case where failure to observe the procedural requirement of authentication of the Commission's decisions, pursuant to Article 12 of the latter's Rules of Procedure, is alleged, it is essential to question compliance with that requirement with cogent evidence which must be submitted in proper time by the party with the burden of proof, and that evidence must raise doubts as to the existence of an authenticated copy of the Commission's decision. The respondent draws that conclusion from paragraphs 73 to 76 of the Court's PVC judgment. In the case of the actions brought against the Commission's Polypropylene decision, the Commission contends that the applicants did not produce the cogent evidence required and, at all events, did not do so at the proper time. (13)

20 On this appeal in particular, the Commission points out as follows: the rejection by the Court of First Instance of ICI's request that the oral procedure be reopened, against which the present appeal is brought, is based on two grounds contained in paragraph 401 of the judgment under appeal. First it mentions that the PVC judgment of the Court of First Instance does not in itself justify the reopening of the oral procedure. Secondly, it held that ICI had not put forward any evidence to suggest that the Polypropylene decision had not been adopted lawfully by the Commission, acting as a college, or that there had been a change to the text after its adoption.

21 With regard to the first ground, the Commission agrees with the position of the Court of First Instance and points out that the PVC judgment of the Court of First Instance was properly not regarded as cogent evidence justifying the reopening of the oral procedure. It adds that the appellant has no basis for maintaining that its request for reopening of the oral procedure was not founded on the PVC judgment of the Court of First Instance but on facts of a different kind. For that purpose it refers to the terms of ICI's request submitted to the Court of First Instance on 4 March 1992; the Commission observes that in that request there is an express reference to the PVC judgment of the Court of First Instance. Moreover, if ICI had in fact intended to base its request not on that judgment but on the disclosures of the Commission's agents at the hearing in the PVC cases, it would not have awaited delivery of that judgment but would have submitted its request immediately after the said disclosures, that is to say, immediately after 10 December 1991.

22 As regards ICI's arguments in respect of the second ground contained in paragraph 401 of the judgment under appeal, the Commission contends that these are inadmissible. In particular that ground is based on the finding by the Court of First Instance that ICI had not, in its letter of 4 March 1992, put forward any evidence to suggest that the Polypropylene decision had not been adopted by the Members of the Commission acting as a college or that that decision had been altered after its adoption. The Commission observes that the failure to produce specific evidence in respect of the alleged unlawful alteration of the content of the Polypropylene decision after its adoption can be deduced from simply reading the letter submitted by ICI on 4 March 1992; the appellant does not, moreover, dispute that point. Furthermore, the question whether or not it had produced sufficient evidence to suggest defects in the decision at issue constitutes a question of fact, not of law. Consequently it cannot form the subject-matter of review on appeal.

Lastly, the respondent contends that, in any case, the Court of First Instance did not infringe any procedural or substantive rule of Community law in refusing, despite ICI's request, to reopen the oral procedure and to order further measures of enquiry. The appellant's pleas on that point should, accordingly, be dismissed as unfounded. According to the Commission's contention, the Court of First Instance properly disregarded ICI's request, inasmuch as it was not based on pleas of fact or law sufficient to cast doubt on the presumed validity of the Polypropylene decision following from its notification and publication. The Commission cites the PVC judgment of the Court of Justice, from which it considers that a principle of interpretation can be deduced to the effect that the presumed validity of a decision of a Community body may be called into question only by a party having a lawful interest and raising substantiated and serious doubts as regards compliance with the procedural rules in the adoption of that decision. In addition those doubts must be raised at the appropriate time. (14) The respondent applies that rule of interpretation to the facts of the present case and points out that the Court of First Instance was right in not reopening the oral procedure, not simply because ICI had not relied in support of its request on sufficiently weighty evidence to suggest the alleged procedural defects in the Polypropylene decision, but also because that evidence was submitted out of time. The Commission considers that that ground underlies the Court's rejection of ICI's request that the procedure be reopened. It draws that conclusion from the formulation of the judgments of the Court of First Instance in the other actions challenging the same decision which were published on the same date as the judgment under appeal, and adds, in conclusion, that the appellant's plea that the Court of First Instance required it, in order to succeed in its request that the procedure be reopened, to adduce full evidence, is unfounded, since it does not explain why that request and the related arguments were submitted late; from that point of view the criteria applied by the Court of First Instance in the case were correct in law.

B - Examination of the grounds of appeal

23 (a) I will take as my starting point the lawfulness of the first ground contained in paragraph 401 of the judgment under appeal. The Court of First Instance dismissed ICI's request that the oral procedure be reopened because it considered that the sole evidence put forward to suggest procedural defects in the Polypropylene decision was the content of the PVC judgment of the Court of First Instance of 27 February 1992. (15) According to the appellant, the Court of First Instance was wrong in its assessment of the content of its request of 4 March; in that request it was not putting forward the PVC judgment of the Court of First Instance as the crucial evidence giving rise to doubts in respect of the formal validity of the Polypropylene decision, but the abovementioned disclosures by the Commission's agents at the oral hearing of the PVC cases, which took place on 10 December 1991. (16)

24 From a reading of paragraph 401 of the judgment under appeal it follows that the Court of First Instance based its rejection of the request on the fact that ICI had not put forward `... any evidence to suggest that the measure notified and published had not been approved or adopted by the members of the Commission acting as a college. ...' Consequently, when the Court of First Instance delivered its judgment, it did not confine itself to stating that reliance on the PVC judgment of the Court of First Instance did not in itself justify the reopening of the oral procedure, but took into account all the arguments of fact and law contained in ICI's request of 4 March 1992. That ground of appeal is consequently unfounded.

25 (b) The second ground contained in paragraph 401 of the judgment under appeal must now be examined. First of all, a reply must be given to the objection of inadmissibility advanced by the Commission against ICI's pleas contesting the finding of the Court of First Instance that there was no evidence to suggest that the Polypropylene decision was vitiated by the alleged procedural defects. The Commission maintains that that finding by the Court of First Instance is a finding of fact, that is to say it does not constitute a question of law which may be reviewed on appeal. That view is not, in my opinion, correct. The appellant is not challenging the findings and assessments of the facts by the Court of First Instance, but raising the question of a wrong interpretation of law. In particular, it maintains that the Court of First Instance required it to produce excessively complete evidence in corroboration, going beyond that which the rules on the burden of proof normally require. It also argues that the Court of First Instance, in holding that in its request of 4 March 1992 it had not put forward `... any evidence to suggest that the measure notified and published had not been approved or adopted by the members of the Commission acting as a college. ...', misapplied the rules on the burden of proof to the facts. Consequently those pleas in the appeal are admissible.

26 As regards whether the said pleas are founded, I would refer to the analysis contained in points 50 to 57 of my Opinion in Hüls. From that analysis it follows that the Court of First Instance could not require ICI to produce the fullest possible proof or, to be precise, `evidence' as to the existence of possible procedural defects in the Polypropylene decision. In finding simply that that company had not put forward any evidence to suggest such defects, the Court of First Instance made an error of law, infringing the rules on the burden of proof, so that that reasoning in the judgment under appeal is not correct.

27 (c) The next question to be examined is whether the Court of First Instance could reject ICI's request of 4 March 1992 on other grounds. That is to say, there remains the question whether the Court of First Instance should have either granted the request of 4 March 1992 or, of its own motion, reopened the oral procedure and ordered measures of organization, in order that possible procedural defects in the decision at issue could be further investigated.

28 Let me point out first of all that the question raised by the appellant is in the nature of a question of law, and accordingly admissible at the appeal stage, contrary to the Commission's contention. To be more precise, the question whether the correct interpretation and application of the rules on the burden of proof in conjunction with the provisions of Articles 48, 62 and 64 of the Rules of Procedure of the Court of First Instance required the latter to order the reopening of the oral procedure on the sole basis of the evidence relied upon in ICI's request of 4 March 1992 is a question of law, which concerns application to the facts as found of the applicable rules of law, and hence can be reviewed on appeal.

29 My answer to the foregoing is in the negative. I consider that it was correct not to reopen the procedure because the request in question did not fulfil the required conditions, nor was there any obligation to that effect under the rules of Community procedural law on review by the Court of certain questions of law of its own motion. That position is based on the analysis set out at points 58 to 79 of my Opinion in Hüls, to which I would refer in this case.

VI - Conclusion

30 In the light of all the foregoing, I propose that the Court should:

(1) Dismiss the appeal of Imperial Chemical Industries PLC in its entirety;

(2) Dismiss the intervention;

(3) Order the intervener to bear its own costs;

(4) Order the appellant to pay the remaining costs.

(1) - Case T-13/89 ICI v Commission [1992] ECR II-1021.

(2) - IV/31.149 - Polypropylene, OJ 1986 L 230, p. 1.

(3) - OJ, English Special Edition 1959-1962, p. 87.

(4) - Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR II-315.

(5) - Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555.

(6) - See points 10 to 15 of my Opinion of today's date in Case C-199/92 P Hüls v Commission.

(7) - See footnote 4 above.

(8) - According to ICI, the equivalent evidence produced by the applicants in the PVC cases (cited in footnote 4) and LdPE cases (judgments in Joined Cases T-80/89, T-81/89, T-83/89, T-87/89, T-88/89, T-90/89, T-93/89, T-95/89, T-97/89, T-99/89, T-100/89, T-101/89, T-103/89, T-105/89, T-107/89 and T-112/89 BASF and Others v Commission [1995] ECR II-729) was clearly of less weight than that produced in the case now before the Court; the Court of First Instance did not, however, refuse to take it into account and require the Commission to produce the relevant documents to enable it to examine the question whether the applicants' arguments were well founded.

The appellant also considers that the Court of First Instance has already withdrawn from the position it took in the case before the Court: a change of direction in the case-law was apparent in the `Soda Ash' cases (Case T-32/91 Solvay v Commission [1995] ECR II-1825; Case T-36/91 ICI v Commission [1995] ECR II-1847; Case T-37/91 ICI v Commission [1995] ECR II-1901) in which, according to ICI, it was held, first, that the statements of the Commission's agents in the PVC cases could be adduced by the applicants as evidence from which the existence of an infringement in the contested decision of an essential procedural requirement could be inferred and, secondly, that by those statements the Commission admitted that it did not comply with the procedural requirements when adopting decisions produced prior to the end of 1991.

In addition, the appellant points out that in the Parker Pen judgment of 14 July 1994 (Case T-77/92 [1994] ECR II-549), the Court of First Instance had invited the Commission to produce the authenticated copy of the contested decision prior to the hearing.

(9) - See footnote 8.

(10) - Judgment of the Court of First Instance in Case T-442/93 AAC [1995] ECR II-1329.

(11) - See footnote 8. The appellant emphasizes the similarities of those cases with the case before the Court and considers that the reasoning of those cases should have been followed when its application was being heard. According to the appellant, the Court of First Instance held as follows in the Soda Ash cases: the applicant was held to have submitted its new plea, that the existence of procedural defects could be inferred, as expeditiously as possible; it was also held that the appellant could not have been aware of an infringement of Article 12 of the Commission's Rules of Procedure before the statement of the Commission's agents at the hearing of the PVC cases and the applicant was considered to have been justified in waiting for the PVC judgment to be delivered before raising those new pleas.

(12) - The appellant refers to the result reached by the Court of First Instance in the said PVC and Soda Ash cases, cited in footnote 8, and the judgments in Case 18/57 Nold [1959] ECR 41; Case C-291/89 Interhotel [1991] ECR I-2257; and Case C-304/89 Oliveira [1991] ECR I-2283.

(13) - The Commission points out that even if the disclosures made by its agents before the Court of First Instance at the hearing in the PVC cases were considered to be cogent evidence for a decision in the present case, that evidence was properly not taken into account because it was submitted out of time. In particular, the Commission contends, first, that those disclosures took place at the hearing on 20 November 1991 and not on 10 December 1991 as the appellant maintains; secondly, even if the latter date were accepted, the letter seeking the reopening of the oral procedure was submitted late, only at the beginning of March 1992.

(14) - In support of its arguments, the Commission cites the judgments of the Court of First Instance in Case T-34/92 Fiatagri v Ford [1994] ECR II-905 and Case T-35/92 John Deere [1994] ECR II-957.

(15) - The fact that the Court of First Instance properly concluded that the possible defects, even if they had occurred, did not render the decision non-existent is irrelevant (see on that point, the analysis of the PVC judgment of the Court of First Instance set out in my Opinion in Hüls, at point 20 et seq.). The crucial evidence submitted by the appellant in the proceedings before the Court of First Instance does not consist in the probability that the contested decision was non-existent but in the likelihood of procedural defects, viz. failure to authenticate the document, subsequent alteration to its content, and infringement of the language rules. In other words, it is not the legal characterization attributed by the parties to the facts but the facts themselves as relied upon by the parties which are significant. In particular, that is the case if those facts, if shown, although they may not render the decision non-existent, nevertheless constitute infringement of an essential procedural requirement in the adoption of the decision at issue.

(16) - It is worth pointing out that that plea by the appellant is admissible at the appeal stage. While it is true that the Court of First Instance has sole competence to find the facts, it cannot, however, ignore a plea of fact properly put forward by one of the parties.