Keywords



Keywords

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1. Acts of the institutions ° Individual decision ° Notification ° Meaning

(EEC Treaty, Art. 191, second para.)

2. Acts of the institutions ° Unalterable after adoption ° Changes to grounds or operative part ° Breach of the principle of legal certainty ° Unlawful

(EEC Treaty, Arts 189 and 190)

3. Competition ° Administrative procedure ° Decision establishing an infringement ° Statement of reasons ° Obligation of the college of Commissioners ° Amendment after adoption ° Unlawful

(EEC Treaty, Art. 85 et seq. and Art. 190; Merger Treaty, Art. 17; Council Regulation No 17, Arts 3(1) and 15(2)(a))

4. Competition ° Administrative procedure ° Decision establishing an infringement ° Adoption, under delegated powers, in an authentic language ° Breach of the principle of collegiate responsibility ° Unlawful

(EEC Treaty, Art. 85; Merger Treaty, Art. 17; Commission' s Rules of Procedure, Art. 27)

5. Competition ° Administrative procedure ° Decision establishing an infringement ° Decision not signed, and finalized after the end of the term of office of the Member of the Commission who signed the accompanying letters ° Unlawful

(EEC Treaty, Art. 85; Merger Treaty, Art. 17; Commission' s Rules of Procedure, Art. 12, third para.)

6. Actions for annulment ° Pleas in law ° Infringement of essential procedural requirements ° Infringement of the Commission' s Rules of Procedure concerning the authentication of acts in languages which are binding

(EEC Treaty, Art. 173; Merger Treaty, Art. 17; Commission' s Rules of Procedure, Art. 12)

7. Acts of the institutions ° Presumption of validity ° Non-existent act ° Meaning

(EEC Treaty, Art. 189)

1. A decision is duly notified once it has been communicated to the person to whom it is addressed and that person is in a position to take cognizance of it. A registered letter with acknowledgment of receipt is a suitable method of giving notice. Although, when that method is used, the date of notification is normally that appearing on the acknowledgment of receipt, that is not the case where the latter bears no signature and the addressee of the decision proves that he received it on a different date.

2. 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.

The principle of unalterability is breached where an act adopted by the college of Commissioners is the subject of changes or additions which, having been made after its adoption and not merely relating to spelling or syntax, must have been made by a person who was not empowered to do so, there being no need to consider the scope, importance or substantial nature of those changes.

3. Compliance within the Commission with the principle of collegiate responsibility, and especially the need for decisions to be deliberated upon by the Commissioners together, must be of concern to the individuals affected by the legal consequences of such decisions, in the sense that they must be sure that those decisions were actually taken by the college of Commissioners and correspond exactly to its intention.

That is particularly so in the case of acts, expressly described as decisions, which the Commission finds it necessary to adopt with regard to undertakings or associations of undertakings for the purpose of ensuring observance of the competition rules and by which it finds an infringement of those rules, issues directions to those undertakings and imposes pecuniary sanctions upon them.

Such decisions must state the reasons on which they are based, in accordance with Article 190 of the Treaty, which requires the Commission to set out the reasons which prompted it to adopt a decision, so that the Community judicature can exercise its power of review and the Member States and nationals concerned know the basis on which the Treaty has been applied. The operative part of, and the statement of reasons for, a decision constitute an indivisible whole and it is therefore for the college of Commissioners alone to adopt both the operative part and the statement of reasons, in accordance with the principle of collegiate responsibility. That means that only simple corrections of spelling and grammar may be made to the text of an act after its formal adoption by the college of Commissioners, any further alteration being the exclusive province of the college.

4. 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. The adoption of such a decision, in an authentic language, cannot therefore be regarded merely as a measure of management or administration falling within the powers delegated to 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.

5. A Member of the Commission may sign letters accompanying a decision establishing an infringement of Article 85 of the Treaty adopted by the Commission for the purposes of notification of the measure to its addressees and publication in the Official Journal under the third paragraph of Article 12 of the Commission' s Rules of Procedure. However, such a signature, affixed on the last day of the term of office of a Member of the Commission, does not remedy the defect of lack of competence vitiating the decision if it is established that it was affixed after the date on which the term of office of the Member of the Commission expired. Accordingly, an act to which no authority has affixed a manuscript signature and which is shown, on investigation, not to have been finalized until after the expiry of the term of office of the Member of the Commission at the earliest is unlawful by virtue of the lack of temporal competence of its author.

6. The authentication of acts provided for in the first paragraph of Article 12 of the Commission' s Rules of Procedure is intended to guarantee legal certainty by ensuring that the text adopted by the college of Commissioners becomes fixed in the languages which are binding. In the event of a dispute, it can therefore be verified that the texts notified or published correspond precisely to the text adopted by the college and so with the intention of the author. It follows that authentication constitutes an essential procedural requirement within the meaning of Article 173 of the EEC Treaty, breach of which may give rise to an action for annulment.

7. Whilst the acts of Community institutions are in principle presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn, by way of exception to that principle, acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order must be treated as having no legal effect, even provisional, that is to say they must be regarded as legally non-existent.

In view of the gravity of the consequences attaching to a finding that an act of a Community institution is non-existent, such a finding is reserved, for reasons of legal certainty, for quite extreme situations.

Such a situation does not arise where the Commission did decide to adopt the operative part of a decision, whatever defects may have affected it, and the irregularities of competence and form relating to the procedure for the adoption of the decision do not appear to be of such obvious gravity that the decision must be treated as legally non-existent.