61991C0195

++++

Mr President,

Members of the Court,

1. Bayer AG has appealed against the judgment in Case T-12/90 delivered by the Court of First Instance on 29 May 1991. That judgment dismissed, on the ground that it had been brought out of time, an application by Bayer for the annulment of a decision adopted by the Commission under Article 85 of the EEC Treaty.

Bayer has argued that the judgment should be set aside and that the company' s submissions before the Court of First Instance should be upheld or, in the alternative, that the case should be referred back to the Court of First Instance.

The company claimed during the oral procedure that the Commission decision is a nullity, that is to say, that it does not exist. I shall begin by examining whether the Court can and ought to address that question on the basis of the information available.

The non-existence of the Commission decision

2. Bayer claims that:

(1) in adopting the decision, the Commission failed to comply with Article 12 of its own Rules of Procedure, which provides that its decisions must be signed by both its President and its Executive Secretary (the authentication procedure); and

(2) that failure is sufficiently serious to result in the decision being treated as non-existent.

Bayer bases itself on information provided by the Commission during the oral procedure in the PVC cases. That information was to the effect that Article 12 of the Rules of Procedure had fallen into desuetude.

Bayer bases its views regarding the legal consequences of that situation on the judgment of the Court of First Instance in the PVC cases, which was delivered on 27 February 1992. (1) At paragraphs 71 to 76 of its judgment, the Court of First Instance stressed the importance of authentication of the Commission' s decisions, which in its opinion constitutes an essential guarantee of legal certainty. The Court based its judgment on the finding that the decision in question had not been authenticated, and that factor was one of several by reason of which the Court, at paragraphs 84 to 96, reached the conclusion that the Commission decision had to be regarded as non-existent and that the applications in question had for that reason to be dismissed.

By application of 29 April 1992, the Commission appealed against that judgment on the ground, inter alia, that the Court' s legal assessment of the significance attaching to the authentication procedure was incorrect.

3. In its judgments of 10 March 1992 in seven of the Polypropylene cases, (2) the Court of First Instance examined, inter alia, a number of requests by the applicant undertakings that the oral procedure be reopened. The ostensible purpose of this was to adduce evidence which might show that the contested Commission decision suffered from defects which, according to the legal views expressed in the PVC judgment, would result in a finding that the decision was non-existent. The Court of First Instance rejected those requests for what are essentially identical reasons, from which it may be profitable to quote: (3)

"Finally, the argument put forward by the applicant ... must be interpreted as asserting ... that an original of the contested Decision, authenticated by the signatures of the President of the Commission and the Executive Secretary, is lacking. That allegation, if true, would not in itself entail the non-existence of the Decision. In the present case, unlike in the PVC cases, ... the applicant has not put forward any concrete evidence to suggest that any infringement of the principle of the inalterability of the adopted measure took place after the adoption of the contested Decision and that the Decision thus lost, to the benefit of the applicant, the presumption of legality arising from its apparent existence. In such a case, the mere fact that there is no duly authenticated original does not in itself entail the non-existence of the contested measure. Therefore, in this respect too, there was no reason to reopen the oral procedure in order to carry out further measures of inquiry. Since the applicant' s arguments could not justify an application for revision, its suggestion that the oral procedure be reopened should not be upheld."

Appeals to the Court of Justice have been brought against six of those judgments on the ground that the decision in question ought to have been declared to be non -existent. (4) It is claimed, inter alia, that the absence of authentication is in itself such a manifest and serious fault as to justify a declaration of non-existence and that the Court of Justice is entitled in the appeals to address that argument after having reviewed the relevant evidence in each case. It is submitted that an issue of non-existence can be examined by any court at any stage whatever, and the judgment of the Court in Case 15/85 Consorzio Cooperative d' Abruzzo v Commission [1987] ECR 1005 is cited in support of that contention. (5)

So far as concerns those Polypropylene cases in which judgment was delivered before that in the PVC cases, appeals to the Court of Justice have been brought in two cases ° one by the Commission and the other by the undertaking concerned. (6) In both appeals, the issue of non-existence, which was not dealt with in the judgments of the Court of First Instance, has been raised in the light of that Court' s judgment in the PVC cases.

Finally, applications have been made in two of the Polypropylene cases for revision with a view to securing a declaration that the Commission decision is non-existent on grounds corresponding to those set out in the PVC judgment. One of the cases involving an application for revision is still pending before the Court of First Instance, (7) while the second was dealt with in that Court' s order of 26 March 1992 dismissing the application for revision. That order has now been appealed to the Court of Justice. (8)

4. It can thus now be assumed that the Court of Justice will have an opportunity to rule on whether failure to comply with Article 12 of the Commission' s Rules of Procedure constitutes a ground for non-existence and to determine the procedural requirements applicable to the adjudication of that issue on appeal. It is more likely than not that these questions will be decided by the Full Court.

It is for that reason clear in my opinion that the Sixth Chamber of the Court ought not in the present case, on the information available, to rule in its examination of the substance on the issue of whether the decision is non-existent.

It is less clear whether the Chamber in the present case should decide not to address the submission of non-existence or whether it ought to stay the proceedings until the procedural questions to which this submission gives rise have been resolved in one of the appeals referred to.

In my view, it might be argued that an examination of the submission of non-existence would constitute, both formally and substantively, an amendment to the subject-matter of the proceedings, contrary to Articles 113(2) and 116(2) of the Rules of Procedure of the Court of Justice, which provide that the subject-matter of the proceedings before the Court of First Instance may not be changed in the appeal.

It might be pointed out that the case before the Court of First Instance concerned an application for the annulment of the Commission decision, whereas an examination of the submission of non-existence could result in confirmation of the decision' s non-existence and the consequent dismissal of the case. It might also be pointed out in that regard that a necessary consequence of the division of jurisdiction between the Court of First Instance and the Court of Justice is that appellants and respondents cannot rely on facts which were not raised in the proceedings before the Court of First Instance.

However, it would in my opinion be wrong for the Court of Justice in the present case and on the information available to rule on the particularly problematic and important question of principle concerning the procedural requirements governing the introduction on appeal of a submission of non-existence.

I propose for those reasons that the Court stay the proceedings in this case under Article 82a of the Rules of Procedure.

In case the Court should rule that it cannot uphold Bayer' s contention that the decision is non-existent, or if it should decide to refrain from ruling on the submission of non-existence, I shall briefly examine whether the Court should uphold Bayer' s contention that it ought to set aside the judgment delivered against the company by the Court of First Instance.

The appeal against the judgment dismissing Bayer' s application

5. The facts of the case and the pleas in law of the parties are to be found in the judgment appealed against and in the Report for the Hearing.

I would refer to these and intend in the following to concentrate on what in my opinion constitutes the essential problem in this case, namely the legal evaluation of what Bayer considers to be a lack of transparency in the Commission' s method of service.

A fundamental strand in Bayer' s argument is that the requirement that periods within which proceedings may be brought must be strictly adhered to necessarily implies correspondingly stringent requirements in respect of the service procedure.

That is a view with which I would concur.

Moreover, the central point in Bayer' s argument is that the method of service chosen by the Commission failed to satisfy the requirements as to transparency of service and that the Court of First Instance failed to draw the proper conclusions from that fact.

Bayer attaches particular importance to the fact that the Commission chose to combine notification of the decision by way of registered letter with acknowledgement of receipt (Einschreiben mit Rueckschein) with dispatch of a form headed "Acknowledgement of Receipt/Accusé de réception" to be completed and returned with a record of the date of receipt.

Bayer also points out that:

(a) previous correspondence sent by the Commission in connection with the case had been addressed to the company' s legal department and the front of the envelopes in question bore the words "Einschreiben mit Rueckschein" (registered letter with acknowledgement of receipt); and

(b) when sending the contested decision, the Commission had altered this procedure, in so far as the decision was addressed to the company in general and the covering letter featured at its top the words "EINSCHREIBEN MIT EMPFANGSBESTAETIGUNG" (registered letter with confirmation of receipt), accompanied by enclosure of the standard form mentioned above.

Bayer' s principal contention is that service was not effected in the proper manner and that consequently the period within which proceedings had to be brought did not start to run until 3 January 1990. In the alternative, Bayer argues that the conditions for the suspension of time-limits laid down in the second paragraph of Article 42 of the Statute of the Court of Justice have been satisfied and that the failure to comply with the time-limit must be treated as excusable.

6. That argument strikes me as plausible. The only possible explanation for the failure to comply with the time-limit is that the persons responsible in the legal department were under the impression that the Commission had changed its method of service and that the Commission decision had not been received until 3 January 1990. They prepared for the proceedings on that basis and were undoubtedly satisfied that the action before the Court of First Instance had been brought in good time. It may, in my opinion, be assumed that the immediate cause of the failure to comply with the time-limit was the misconstruction by the persons responsible of the method of service and that this was attributable to a misunderstanding of the significance of the form sent by the Commission concerning acknowledgement of receipt. It may with some justice be argued that the Commission ought to have drawn attention in the covering letter, which bore the words "Einschreiben mit Empfangsbestaetigung", to the fact that the decision was to be treated as having been served on arrival of the registered letter and signature of receipt from the postal authorities.

On the face of it, to preclude Bayer from requesting the Court to examine the legality of a Commission decision significantly affecting the company would appear in those circumstances to be an unreasonably severe penalty for being three days outside the time-limit.

Even if it can be accepted in objective terms that the immediate cause of the failure to comply with the time-limit was a misunderstanding attributable to the method of service chosen by the Commission, the question still remains as to whether that failure to comply with the time-limit could have or ought to have been avoided, that is to say, whether Bayer must not itself bear responsibility for the misunderstanding which arose in its legal department.

There are a number of matters of potential significance in that regard.

Importance attaches to the fact that it may be argued (as mentioned at paragraph 20 of the judgment of the Court of First Instance) that:

(a) the personal completion and return by the recipient of a form for acknowledgement of receipt is not an obvious and normal method of service when a Commission decision is sent by registered post; and

(b) that fact ought to have caused the persons dealing with the preparation of the case to examine whether this "method of service" was the one actually chosen by the Commission.

A certain, albeit limited, significance may perhaps also be attached to the fact that the persons dealing with the case in Bayer' s legal department would have realized that the decision had not been received on 3 January if they had examined the envelope, from which it was reasonably obvious that the company must have received the document in the post prior to 3 January.

Finally and most importantly, it is clear ° as the Court of First Instance stressed at paragraphs 33 and 34 of its judgment ° that there would have been no misunderstanding in the legal department if the handling of the document by Bayer' s mail office had not been marked by a number of errors of crucial significance to the case.

After a full consideration of these matters, I have come to the conclusion that the Court of First Instance was entitled not to take into account the possibility that the lack of transparency associated with the Commission' s chosen method of service was a contributory factor in Bayer' s failure to comply with the time-limit.

7. I also share the views which led the Court of First Instance to refuse to lend weight to the fact that the Commission, after receiving the acknowledgement of receipt and Bayer' s letter of 15 January 1990 addressed to the Commissioner responsible, did not point out to the company that the date of receipt mentioned in its letter was incorrect.

In my opinion, there is here insufficient reason to address in any greater depth Bayer' s argument that mistakes by company employees which are not attributable to mistakes on the part of the company management cannot be attributed to the company as such. That argument is not supported by the case-law of the Court of Justice (9) and would in any event have unreasonable consequences.

As appears from the Report for the Hearing, Bayer also raises a number of objections relating to the interpretation by the Court of First Instance of the second paragraph of Article 42 of the Statute of the Court of Justice and to the meaning attached by the Court of First Instance to the case-law of the Court of Justice on "excusable errors".

There is no basis on which Bayer' s objections in this regard can be upheld. The above assessment of the circumstances resulting in the failure to comply with the time-limit also, in my opinion, determines matters in this regard. Bayer' s argument, to the effect that the failure to comply with the time-limit was excusable by virtue of the existence of unforeseeable circumstances or of force majeure, cannot for that reason be accepted. This also means that the failure to comply with the time-limit cannot be treated as an instance of "excusable error".

Opinion

8. I propose for the above reasons that the proceedings in the case should be stayed.

Should the Court find that it is in a position to rule on the appellant' s submission that the judgment dismissing its application be set aside, I propose that the Court should dismiss the appeal and order the appellant to pay the costs of the proceedings.

(*) Original language: Danish.

(1) ° Judgment in Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, 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.

(2) ° Judgments in Case T-9/89 Huels v Commission [1992] ECR II-499, Case T-10/89 Hoechst v Commission [1992] ECR II-629, Case T-11/89 Shell v Commission [1992] ECR II-757, Case T-12/89 Solvay v Commission [1992] ECR II-907, Case T-13/89 ICI v Commission [1992] ECR II-1021, Case T-14/89 Montedipe v Commission [1992] ECR II-1155 and Case T-15/89 Chemie Linz v Commission [1992] ECR II-1275.

(3) ° Quotation from paragraph 385 of the judgment of the Court of First Instance in Case T-9/89 Huels v Commission [1992] ECR II-499.

(4) ° The cases in question are C-199/92 P, C-200/92 P, C-227/92 P, C-234/92 P, C-235/92 P and C-245/92 P.

(5) ° Paragraph 10 of that judgment reads as follows:

With regard to the argument that the decision ... is non-existent, it is necessary to point out that under Community law, as under the national laws of the various Member States, an administrative measure, even though it may be irregular, is presumed to be valid until it has been properly repealed or withdrawn by the institution which adopted it. If a measure is deemed to be non-existent, the finding may be made, even after the period for instituting proceedings has expired, that the measure has not produced any legal effects. For reasons of legal certainty which are evident, that classification must consequently be restricted under Community law, as under the national legal systems which provide for it, to measures which exhibit particularly serious and manifest defects.

(6) ° These are respectively Case C-49/92 P Commission v Enichem Anic and Case C-51/92 P Hercules v Commission.

(7) ° Case T-8/89 Rev. DSM v Commission.

(8) ° Case C-255/92 P BASF v Commission.

(9) ° In support of its view, Bayer refers to the Court' s judgment in Case 284/82 Busseni v Commission [1984] ECR 557. However, that case did not involve a situation in which a mistake had been made by an employee, but rather one in which the company management had failed to make arrangements to ensure that company mail would be opened.