Opinion of the Advocate-General

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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 pointe