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.
Date: 1994-06-15
40 It is to be noted that the procedural time-limits meet requirements of legal certainty whilst the various extensions of time provided for by the Decision 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.
48 It should be remembered that acts of the 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accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn.
49 However, 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 that they must be regarded as legally non-existent. The purpose of this 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.
50 From the gravity of the consequences attaching to a finding that an act of a Community institution is non-existent it is self-evident that, for reasons of legal certainty, such a finding is reserved for quite extreme situations.
51 In this case, the Court of First Instance did not question that at the meeting of 21 December 1988, as is shown by the relevant minutes, the Commission did decide to adopt the operative part of a decision as set out in those minutes, whatever defects may have affected that decision.
52 In any event, whether considered in isolation or even together, the irregularities of competence and form found by the Court of First Instance, which relate to the procedure for the adoption of the Commission' s decision, do not appear to be of such obvious gravity that the decision must be treated as legally non-existent.
53 The Court of First Instance therefore erred in law in declaring Decision 89/190 non-existent.
62 As the Court of Justice held at paragraph 30 of its judgment in the AKZO case, cited above, the functioning of the Commission is governed by the principle of collegiate responsibility laid down in Article 17 of the Treaty of 8 April 1965 establishing a Single Council and a Single Commission of the European Communities (Journal Officiel 1967, 152, p. 2, hereinafter referred to as "the Merger Treaty"), which has now been replaced by Article 163 of the EC Treaty. This provides that: "The Commission shall act by a majority of the number of members provided for in Article 10. A meeting of the Commission shall be valid only if the number of members laid down in its rules of procedure is present".
63 In the same judgment the Court held (in paragraph 30) that the principle of collegiate responsibility so laid down was based on the equal participation of the Commissioners in the adoption of decisions, from which it followed in particular that decisions should be the subject of collective deliberation and that all the members of the college of Commissioners should bear collective responsibility at political level for all decisions adopted.
64 Compliance with that principle, 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.
65 This is particularly so, as here, in the case of acts, expressly described as decisions, which the Commission finds it necessary to adopt under Articles 3(1) and 15(2)(a) of Council Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87) 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.
66 Such decisions must state the reasons on which they are based, in accordance with Article 190 of the EEC Treaty. It is settled law that this requires the Commission to set out the reasons which prompted it to adopt a decision, so that the Court can exercise its power of review and Member States and nationals concerned know the basis on which the Treaty has been applied.
67 The operative part of such a decision can be understood, and its full effect ascertained, only in the light of the statement of reasons. Since the operative part of, and the statement of reasons for, a decision constitute an indivisible whole, it is 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.
68 As the Court held in its judgment in the Battery Hens case, cited above, 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.
70 Since the intellectual component and the formal component form an inseparable whole, reducing the act to writing is the necessary expression of the intention of the adopting authority.
71 It must be added that, unlike decisions ordering undertakings to submit to an investigation, which, as a form of preparatory inquiry, may be regarded as straightforward measures of management (see the judgment in AKZO Chemie v Commission, cited above, at paragraph 38), decisions finding infringement of Article 85 cannot, without offending against the principle of collegiality, be the subject of a delegation of authority, under Article 27 of the Commission' s Rules of Procedure, to the Commissioner responsible for competition policy.
75 Far from being, as the Commission claims, a mere formality for archival purposes, the authentication of acts provided for in the first paragraph of Article 12 of its 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. Thus, in the event of a dispute, it can 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.
76 Authentication of acts referred to in the first paragraph of Article 12 of the Commission' s Rules of Procedure therefore constitutes an essential procedural requirement within the meaning of Article 173 of the EEC Treaty breach of which gives rise to an action for annulment.