Source: EURLEX
Language: en
Format: md

[**Avis juridique important**](../../../editorial/legal_notice.htm)

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# 61992J0137

**Judgment of the Court of 15 June 1994. - 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*

  

[Summary](#SM)  
[Parties](#I1)  
[Grounds](#MO)  
[Decision on costs](#CO)  
[Operative part](#DI)

## Keywords

  
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1. Procedure ° Time-limits ° Extension on account of distance ° Application to the Community institutions ° Rules

(Rules of Procedure of the Court of Justice, Art. 81(2); Annex II, Art. 1)

2. Acts of the institutions ° Presumption of validity ° Non-existent act ° Concept

(EEC Treaty, Art. 189)

3. Commission ° Principle of collegiate responsibility ° Scope

(Merger Treaty, Art. 17)

4. Competition ° Administrative procedure ° Decision establishing an infringement ° Statement of reasons ° Obligation of the college ° Amendment after adoption ° Illegality

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

5. Competition ° Administrative procedure ° Decision establishing an infringement ° Adoption by way of habilitation ° Breach of the principle of collegiality ° Illegality

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

6. Actions for annulment of measures ° Pleas ° Infringement of essential procedural requirements ° Infringement of the provisions of the Commission' s Rules of Procedure relating to the authentication of its measures in the languages which are binding

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

## Summary

  
*1. Whilst procedural time-limits meet requirements of legal certainty, the various extensions of time provided for by the decision of the Court on extensions on account of distance are intended to take account of the difficulties faced by parties owing to the fact that they may be a fairly long way away from the seat of the Court of Justice and thereby to put them on an equal footing. Extensions of time-limits on account of distance must therefore be granted according to the place where parties are habitually established and where the decisions relating to their activities are taken.

As far as the Commission is concerned, it is significant to note that before the decision 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 Communities located the seat of the Commission at Brussels, that institution was already run from there, it being one of the provisional places of work of the institutions. The fact that some of its departments were located and remain located in Luxembourg is irrelevant.

Consequently the Commission must be allowed the extension on account of distance provided for persons having their habitual residence in Belgium.

2. The acts of the Community institutions are in principle presumed to be lawful and produce legal effects, even if they are vitiated by irregularities, until such time as they are annulled or withdrawn; by way of exception to that principle, however, acts vitiated 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 that they must be regarded as legally non-existent. The purpose of that exception is to maintain a balance between two fundamental, but sometimes conflicting, requirements with which a legal order must comply, namely stability of legal relations and respect for legality.

From the gravity of the consequences attaching to a finding that an act of an institution is non-existent, it is self-evident that, for reasons of legal certainty, such a finding is reserved for quite extreme situations.

Such is not the case where, whatever the defects affecting a decision, it is common ground that the Commission did decide to adopt the operative part of the decision and furthermore 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.

3. The functioning of the Commission is governed by the principle of collegiate responsibility laid down in Article 17 of the Merger Treaty, which has been replaced by Article 163 of the EC Treaty. That principle is founded on the equal participation of the members of the Commission in the adoption of decisions and it follows in particular that decisions should be the subject of a collective deliberation and that all the members of the college of Commissioners should bear collective responsibility on the political level for all decisions adopted.

4. Compliance with the principle of collegiate responsibility, and especially the need for decisions to be deliberated upon by the Commissioners together, must be of interest to the individuals concerned by the legal effects which such decisions produce, 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.

This is particularly so in the case of acts which are expressly described as decisions which the Commission finds 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 EEC Treaty which requires the Commission to set out the reasons which prompted it to adopt a decision, so that the Court may exercise its power of review and the Member States and nationals concerned know the basis on which the Treaty has been applied. Since the operative part of, and the statement of reasons for, a decision constitute an indivisible whole it is a matter 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 by the Commission' s departments after its formal adoption by the college of Commissioners, any further alteration being the exclusive province of the college.

5. Commission decisions finding infringement of the competition rules of the Treaty cannot, without offending against the principle of collegiality, be the subject of an habilitation, under Article 27 of the Commission' s Rules of Procedure, given to the Member of the Commission responsible for competition policy.

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 full Commission becomes fixed in the languages which are binding. In the event of a dispute it thus enables the text notified or published to be compared with that adopted by the whole body of Commission members so as to ascertain that they match that text and fully correspond to their framer' s intentions. It follows that authentication constitutes an essential procedural requirement within the meaning of Article 173 of the EEC Treaty against whose infringement an action for annulment lies.*

## Parties

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