EUR-Lex -  61993CC0005 - EN - Opinion of Mr Advocate General Cosmas delivered on 15 July 1997. - DSM NV v Commission of the European Communities. - Appeal - Application for revision - Admissibility. - Case C-5/93 P.

Opinion of the Advocate-General

In this case the Court of Justice is called upon to deliver judgment on the appeal of DSM NV (hereinafter `DSM') brought pursuant to Article 49 of the EEC Statute of the Court of Justice against an order of the Court of First Instance of 4 November 1992 (1) and against a judgment of that Court of 17 December 1991. (2) The order of 4 November 1992 dismissed the application for revision brought by the appellant company, pursuant to Article 41 of the EEC Statute of the Court of Justice and Article 125 of the Rules of Procedure of the Court of First Instance, against the aforementioned judgment of 17 December 1991 dismissing the action brought by the appellant pursuant to Article 173 of the EEC Treaty (hereinafter `the Treaty') against the Commission's decision of 23 April 1986 (hereinafter the `Polypropylene' decision). (3) That decision concerned the application of Article 85 of the Treaty in the polypropylene production sector.

I - Facts and course of the procedure before the Court of First Instance

1 As regards the facts of the dispute and the course of the procedure before the Court of First Instance, the judgment under appeal relates as follows:

Before 1977 the west European polypropylene market was supplied almost exclusively by ten producers. After 1977 and following the expiry of the controlling patents held by Montedison, seven new producers appeared with substantial production capacity. This was not accompanied by a corresponding increase in demand, with the consequence that demand did not match supply, at least until 1982. More generally, for the greater part of 1977-1983, the polypropylene market was characterised by low profits or even significant losses.

2 On 13 and 14 October 1983 Commission officials, acting under the powers conferred by Article 14(3) of Council Regulation No 17 of 6 February 1962 (4) (hereinafter `Regulation No 17'), carried out simultaneous investigations in a number of undertakings operating in the polypropylene production sector. Following those investigations, the Commission addressed requests for information, under Article 11 of Regulation No 17, to the above companies, and also to other related undertakings. From the evidence obtained during the course of those investigations the Commission concluded that, between 1977 and 1983, certain polypropylene producers, including DSM, had been acting in contravention of Article 85 of the Treaty. On 30 April 1984 the Commission decided to open the proceedings provided for by Article 3(1) of Regulation No 17 and sent a written statement of objections to the undertakings in contravention.

3 At the end of that procedure, the Commission adopted the abovementioned decision of 23 April 1986, which has the following operative part:

`Article 1

(The Companies) ... DSM NV ... have infringed Article 85(1) of the EEC Treaty, by participating:

...

- in the case of BASF, DSM and Hüls, from about mid-1977 until at least November 1983 ...

in an agreement and concerted practice originating in mid-1977 by which the producers supplying polypropylene in the territory of the EEC:

(a) contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meetings so as to discuss and determine their commercial policies;

(b) set "target" (or minimum) prices from time to time for the sale of the product in each Member State of the EEC;

(c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of "account management" designed to implement price rises to individual customers;

(d) introduced simultaneous price increases implementing the said targets;

(e) shared the market by allocating to each producer an annual sales target or "quota" (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period (1981, 1982).

...

Article 3

The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

...

(iv) DSM NV, a fine of 2 750 000 ECU, or 5 898 447,50 German marks

(...)'.

4 Fourteen of the fifteen companies which were the addressees of the decision, including the appellant, brought an action for its annulment. At the hearing which took place from 10 to 15 December 1990, the parties presented oral argument and answered questions from the Court. After hearing the views of the Advocate General, the Court of First Instance dismissed the action by its abovementioned judgment of 17 December 1991.

5 By separate document lodged at the Registry of the Court of First Instance on 26 May 1992, DSM applied for revision of that judgment of the Court of First Instance. In support of that request, it relied on certain factual evidence of which, it maintained, it had only become aware after delivery of the judgment of the Court of First Instance of 17 December 1991 and, in particular, of the judgment of 27 February 1992 in the related cases BASF and Others v Commission (hereinafter `the PVC cases'). (5) From that evidence it can be concluded, according to DSM, that the contested decision was vitiated by serious procedural defects which justified revision of the judgment of 17 December 1991. In its abovementioned decision of 4 November 1992, the Court of First Instance dismissed the application for revision.

6 DSM lodged an appeal against that decision, requesting the Court to:

(i) Declare the present appeal to have been brought within the time-limits;

(ii) Set aside the order of the Court of First Instance of 4 November 1992 in Case T-8/89 REV;

(iii) Set aside the judgment of the Court of First Instance of 17 December 1991 in Case T-8/89;

(iv) Declare the Commission's Polypropylene decision non-existent or at least invalid, in so far as it concerns the appellant and, consequently, annul or at least reduce the fine imposed on it;

(v) Order the Commission forthwith to repay the fine collected from the appellant on 19 February 1992, pursuant to the decision of the Court of First Instance of 17 December 1991, together with interest as provided for by law and the costs incurred by DSM;

(vi) In the alternative, annul the order of 4 November 1992 made by the Court of First Instance in Case T-8/89 REV, and refer the case back to the Court of First Instance for judgment;

(vii) Order the respondent to pay the costs.

The Commission contends that the Court should dismiss the appeal as inadmissible, in whole or in part, or, in the alternative, as unfounded, and order the appellant to pay the costs.

II - Arguments of the parties

A - Grounds of appeal put forward by DSM

7 (a) The appellant refers to paragraphs 14 and 15 of the contested order and maintains that the Court of First Instance misconstrued Article 41 of the EEC Statute of the Court of Justice which lays down the conditions under which it may avail an applicant to make an application for revision. Under the interpretation favoured by the appellant, for a judgment to be revised it is sufficient simply for a fact of such a nature as to be a decisive factor to be discovered, without there being any need for that fact to precede in time delivery of the judgment of which revision is sought. According to DSM, there was no legal basis for the imposition of that additional condition by the Court of First Instance. DSM also emphasises that the Court of First Instance focused its examination on the moment in time when the facts relied on by DSM became known to it, without first examining to what extent the factual elements in question constituted facts within the meaning of Article 41 of the EEC Statute of the Court of Justice. DSM takes the view that the factual elements relied on by it could not be regarded as facts but merely as suppositions from which after examination certain facts could possibly be inferred which would be relevant to a determination of the dispute. It was for that reason, moreover, that the appellant had submitted to the Commission, on 5 May 1992, a request for the communication of certain important items of evidence. Accordingly, the appellant concludes that the Court of First Instance misapplied Article 41 of the EEC Statute of the Court of Justice.

8 (b) According to the appellant, the order appealed against is inadequately reasoned because the Court of First Instance limited its examination to certain only of the factual matters relied on by DSM in its application. Those are the matters referred to in paragraphs 6 to 15 of the order appealed against and put forward at point 2.3 of the application for revision. The appellant considers that the Court of First Instance ignored the factual submissions contained in points 2.1 and 2.2 of the application for revision. Those submissions concerned the following matters:

First, DSM had raised the hypothetical question whether the Dutch text of the Polypropylene decision had been before the College of Commissioners.

Secondly, DSM had pointed to the likelihood that the Polypropylene decision was vitiated by `particularly serious and manifest defects' analogous to those accepted by the Court of First Instance in the PVC cases. (6) In particular, the following procedural defects are alleged:

(i) Non-submission to the College of Commissioners of the authentic text in Dutch of the contested decision.

(ii) Unlawful delegation of authority to the Commissioner for Competition to issue the text of the contested decision in Dutch.

(iii) Failure to authenticate the decision in accordance with Article 12 of the Commission's Rules of Procedure.

(iv) Failure to annex the authentic text of the original of the decision to the minutes of the Commission meeting at which the decision in that regard was adopted.

(v) Existence of changes in the content of the Polypropylene decision after its adoption which are not merely `spelling or grammatical corrections.'

(vi) The non-existence of an authentic Dutch text of the Polypropylene decision also means that there was no enforcement order for the levying of the fine, as required under Article 192 of the Treaty.

9 According to DSM, those submissions are particularly serious in view of the Commission's refusal to produce relevant evidence, in spite of a request in that regard from the appellant. The latter maintains that the submissions in question were not duly examined by the Court of First Instance with the result that the order appealed against does not contain an adequate statement of the reasons on which it is based.

10 (c) The appellant further considers that the rules concerning statements of reasons for judgments of the Community judicature were broken because, in paragraph 16 of the order appealed against, the Court of First Instance described as a `new fact' the `amendments and additions' to the decision adopted by the College of Commissioners contained in the text communicated to DSM. However, in the application for revision there is no mention of `facts' within the meaning of Article 41 of the EEC Statute of the Court of Justice, but merely of suppositions concerning possible alterations and additions to the content of the decision adopted by the College of Commissioners. The actual facts remain unknown to both DSM and the Court of First Instance.

11 (d) According to the appellant, the Court of First Instance incorrectly took the view in paragraph 18 of the order appealed against that the amendments and additions subsequently made to the content of the contested Polypropylene decision were known to the applicant for revision prior to delivery of the judgment of which revision is sought. The Court placed reliance on the fact that, at the hearing before it in the PVC case, which took place on 10 December 1991, the applicant for revision was present and was represented by the same lawyer who also represented it in the polypropylene case. At that hearing the Commission's representatives gave adequate explanations concerning the content of the supposed amendments and additions alleged above. Consequently, the applicant for revision had knowledge of those matters and was in a position to invoke them in due time, before delivery on 17 December 1991 of the order of the Court, in the context of an application for the reopening of the oral procedure.

12 DSM counters that reasoning in the contested order with the following arguments: the fact that its lawyer was present at the hearing in the PVC cases is legally irrelevant. He was present there as the representative of another undertaking in the context of a different case which concerned the lawfulness of a different Commission decision. Nor did the Commission representative refer to subsequent amendments to the content of the Commission's already adopted decisions but to the issue of their authentication under Article 12 of the Commission's Rules of Procedure. Finally, DSM relies on paragraph 92 of the PVC judgment of the Court of First Instance in which it was, it says, acknowledged that the contentions made by the Commission's representatives concerning the general practice followed in the adoption of Commission decisions in breach of the written rules in force, were of no legal weight.

13 As regards the viewpoint of the Court of First Instance to the effect that DSM was in a position, prior to delivery of the decision of which revision is sought, to submit in due time an application for the reopening of the oral procedure under Article 62 of the Rules of Procedure, the appellant makes the following observations: first, it did not have knowledge of `facts' on which it could have based its application. In any event, it was not obliged to implement the procedure under Article 62 of the Rules of Procedure which is optional and not compulsory. Moreover, the relevant procedural defects referred to in the application for revision fall within the category of those which are to be reviewed by the Court of its own motion; accordingly, the Court of First Instance ought itself to have ordered the reopening of the oral procedure. Finally, it puts forward a practical argument: since the judgment of the Court on DSM's action was delivered on 17 December 1991, it is certain that the text of the judgment must have been settled definitively before 10 December 1991 and merely the text thereof was in translation. Consequently, there was not on the facts any possibility of reopening the oral procedure.

14 (e) The appellant challenges paragraph 19 of the contested order in which it was held that `the various amendments and additions mentioned by the applicant for revision and their significance were sufficiently obvious ...'. DSM reiterates first of all that its relevant factual submissions did not constitute facts within the meaning of Article 41 of the EEC Statute of the Court of Justice. It also points out that the term `sufficiently obvious' is without practical significance and imprecise. The appellant considers that that term is essentially a paraphrase of wording appearing in a judgment of 26 February 1987 (7) which spoke of `particularly serious and manifest defects.' In the appellant's view the reasoning in that case cannot be transposed to the present case. The defects in the Polypropylene decision are not obvious. A reading of the text notified to the undertakings concerned does not reveal any defect apart from the fact that in certain places in the text it is apparent that a different typeface has been used. To what extent the contested decision contains substantial procedural defects remains to be investigated and is not known, and is certainly not obvious, to DSM or to the Court. Moreover, unlike in Consorzio Cooperative d'Abruzzo, (8) the contested decision in the present case imposes an obligation and does not give rise to any right. Accordingly, in the appellant's view, it should be possible for it to be declared non-existent, even if its defects are not obvious.

15 (f) The appellant challenges paragraph 20 of the order appealed against on the ground that it runs counter to Community rules on the duty to provide a statement of the grounds on which a judgment is given. In that paragraph the Court held that `the PVC judgment as such as well as the letter sent by the applicant for revision to the Commission on 5 May 1992 and the fact that it remained unanswered are not material (...).'

16 According to the appellant, the abovementioned letter which it sent to the Commission on 5 May 1992, as well as the fact that it remained unanswered, are of particular significance for the determination of the present case. Moreover, as may be inferred from the Court's PVC judgment, in such cases the parties are not required to adduce conclusive evidence of defects but merely the evidential items which may be available to them. Nor does Community law preclude, the appellant submits, applications for revision from being made by parties who merely suspect that there may be unknown facts within the meaning of Article 41 of the EEC Statute of the Court of Justice which may be of decisive significance for the determination of the dispute. That is, according to DSM, the purpose of Article 41 of the EEC Statute of the Court of Justice. In the appellant's view, that interpretative approach should be followed, a fortiori in cases where the new `facts' are not yet known, on account of a refusal by the Commission to make available the evidence which it has in its possession.

17 (g) In the appellant's view, the obligation to provide a statement of the grounds underpinning judicial decisions is also breached by the fact that the Court of First Instance declined to examine its application for revision on its merits. This stance runs counter to settled case-law, as interpreted by DSM. In that connection it points to the Court's other polypropylene judgments, in particular those delivered on 10 March 1992. (9)

18 (h) The appellant takes the view that there was a breach of the principle of equality owing to the fact that the Court of First Instance, unlike the position it took in the PVC cases, refused to examine the application for revision on its merits, on the basis of the evidence relied on by DSM. In the PVC cases the Court adopted measures of organisation of procedure whereby it requested the Commission to produce a series of relevant evidential items in connection with the possible existence of substantial procedural defects in the contested decision. Basing themselves on the material which the Commission finally submitted to the Court of First Instance, the applicants were able to identify and invoke the substantial procedural defects in the Commission's PVC decision which led to its being declared void. DSM maintains that, in connection with the application for revision, it advanced suppositions of the same seriousness as those put forward by the applicant undertakings in the PVC cases. None the less, in the present case the Court of First Instance did not order any measures of organisation of procedure, without giving reasons for its refusal to do so.

19 In the appellant's view, there is also a breach of the principle of equality on account of the fact that the Court of First Instance accorded different treatment in law to the undertakings which challenged the Commission's Polypropylene decision. It is well known that the Court delivered its judgments in the polypropylene cases on three different occasions: for three undertakings on 24 October 1991; for four other undertakings, including DSM, on 17 December 1991; and for the remaining undertakings on 10 March 1992. DSM observes that only the latter undertakings were in fact able to apprise themselves of the Court's judgment in the PVC cases, delivered on 27 February 1992, prior to appealing against the judgment concerning them. That fact carries much weight, in the appellant's view, for it amounts to unfavourable treatment of the undertakings in respect of which the judgments in their actions were delivered on 24 October 1991 and 17 December 1991.

20 The appellant goes on to point out that to deliver the judgments on different dates was unjustified because the cases had been joined. It also maintains that the Court acknowledges at paragraph 18 of the contested order that it treated DSM differently in contrast to the treatment accorded to the undertakings in respect of which it delivered judgment on 10 March 1992, but that the Court considered that difference in treatment to be unimportant since DSM was already aware of the relevant facts before judgment was delivered in the PVC case. The appellant refers to its previous analysis in order to maintain that that reasoning is erroneous. Finally, the appellant points out that the First Chamber of the Court, which adjudicated on the application for revision, was aware of the matters that had been revealed during the course of the procedure in the PVC cases, in particular after the Second Chamber ordered the measures of organisation of procedure mentioned above whereby the Commission was requested to produce certain material evidence.

21 (i) The appellant maintains, finally, that the Court infringed Community law because, unlike in the reasoning which it followed in the PVC judgment, in the present case it did not accept that every plea or submission going to the non-existence of the contested decision may be raised by the parties outside the procedural time-limits and be examined by the Court of its own motion. In that connection the appellant relies on paragraph 68 of the PVC judgment from which it believes the following matters may be inferred: every plea based on the non-existence of the contested decision is a matter of public interest and may be raised by the parties even outside the procedural time-limits and must be examined by the Community judicature of its own motion. In light of the foregoing, when new measures of organisation of procedure are required in order to enable those pleas to be examined, the Court of First Instance is required to order such measures, contrary to what may be inferred from the literal interpretation of Articles 64 to 67 of the Rules of Procedure of the Court of First Instance. Justification for departing from the letter of the provisions is to be found, the applicant submits, in paragraphs 71 to 77 of the PVC judgment of the Court of First Instance in which reference is made to the importance of guaranteeing `the stability of the legal order and legal certainty for those subject to measures adopted by Community institutions.' In light of the foregoing, by declining to review, in the context of an examination of the application for revision - ordering, if need be, new measures of organisation of procedure - whether the Polypropylene decision was vitiated by substantial procedural defects, the Court of First Instance did not correctly perform, the appellant submits, its adjudicating role. In any event, DSM maintains that the Court of First Instance ought to have examined of its own motion the issue whether the decision at issue is non-existent.

B - Respondent's submissions

(a) Admissibility

22 In its reply the Commission requests the Court to dismiss the appeal as inadmissible in its entirety. The respondent contends that the appeal concerns the question whether a `new fact' has emerged in the present case or simply a `fact' capable of justifying revision of the judgment. However, that question, according to the Commission, is a question of fact and not a point of law. Accordingly, it is not admissible under Article 51 of the EEC Statute of the Court of Justice for it to be raised at the appeal stage.

23 In the alternative, the Commission contends that that part of the head of claim on appeal in which the Court is asked to order the Commission to reimburse the fine paid is inadmissible since it is contrary to Article 176 of the Treaty.

(b) Substance

24 The Commission contends that the appeal brought by DSM is in any event unfounded.

(i) The Commission starts by analysing the issues raised by the appellant in its second ground of appeal, and makes the following observations:

25 As regards the submission that the Polypropylene decision was not submitted to the College of Commissioners in its authentic Dutch version, the respondent counters by contending that that is of no practical significance. The relevant factor is whether that decision was none the less adopted by the College of Commissioners in one of the five authentic languages; it is not essential for that decision to be taken separately in each of the authentic language versions. Accordingly, since the French draft of the Polypropylene decision was presented to and approved by the College of Commissioners, no procedural irregularity occurred.

26 As to the submission that power was improperly delegated to the Commissioner for Competition to draw up the Dutch text of the Polypropylene decision, the Commission points out that, in its view, there cannot, in the present case, be deemed to have been a delegation of power to adopt the decision because it had already been adopted in one of the authentic languages. But even if this does constitute a delegation of power that is in any event permissible because it concerns a purely executory act. The Commission adds, in the alternative, that it has not been proven in the present case that the Dutch text of the Polypropylene decision was drawn up by the Commissioner for Competition pursuant to a delegation of authority.

27 As regards the failure to authenticate the decision in accordance with Article 12 of the Commission's Rules of Procedure, the respondent contends that that provision does not confer rights on third parties. The addressee of a Commission decision cannot plead non-compliance with the abovementioned provision, or with the Rules of Procedure in general, in order to obtain annulment of the decision concerning him. Nor can he plead a failure to adjust the original authenticated text in line with the minutes of the meeting at which it was adopted.

28 As regards the absence of an enforcement order, as provided for in Article 192 of the Treaty, as a consequence of there being no authentic Dutch version of the Polypropylene decision, the Commission observes that that is a misinterpretation of Article 192. In any event the decision notified to DSM constitutes an enforceable order.

29 Finally, as to the alterations alleged to have been made to the contested decision after its adoption, the Commission cites the existing case-law of the Court, (10) from which it infers that it is relevant in each case to determine whether the amendments at issue are in conflict with the intention of the framer of the act. In any event, the need for homogenisation of the different language versions of the decision requires alterations to be made ex post facto to the text.

30 Finally, the Commission observes that none of the abovementioned issues come within the subject-matter of the decision on revision. The investigation by the Community judicature is limited in such cases to an appraisal of the claim in light of the requirements of Article 41 of the EEC Statute of the Court of Justice. Moreover, none of the abovementioned procedural failings and irregularities, on the supposition that they exist, affect the validity of the Commission's Polypropylene decision because they are in connection with procedural rules which govern the internal action of the Commission and do not confer rights on third parties affected by the decisions adopted. The addressees of the decisions at issue are bound by the text communicated to them which produces effects for as long as it is not revoked or amended.

(ii) Secondly, the Commission replies to the grounds of appeal raised by DSM

31 As regards the first and second grounds of appeal, the appellant, according to the Commission, was wrong to accuse the Court that it first examined at what point in time the facts which it submitted with its application for revision became known to the applicant for revision before examining whether the relevant `factual' submissions constituted facts within the meaning of Article 41 of the EEC Statute of the Court of Justice. That provision cumulatively requires, first, the submission of `facts of decisive significance' which, secondly, were `unknown' to the applicant and to the Community judicature prior to delivery of the decision. Accordingly, the Court was right to focus its examination on the question whether the factual submissions made by the appellant in its application for revision were unknown to it prior to 17 December 1991, the date on which the decision in respect of which revision was sought was delivered. The Court was entitled to examine first whether the factual matters in respect of which submissions were made were unknown to the party and to the Court before examining, if necessary, whether those submissions amounted to `facts of decisive significance'.

32 As regards the third, fourth and fifth grounds of appeal, the respondent contends as follows: in raising those grounds of appeal, the appellant is falling into contradictions by reversing its original submissions, as contained in the application for revision. In the third and fifth grounds of appeal, DSM maintains that the factual submissions which had been originally put forward in the application for revision do not constitute `facts' but simply matters which do not relate to particularly obvious procedural defects in the Polypropylene decision but to defects which in the end were not obvious but simply hypothetical. Also, in the fourth ground of appeal, the appellant is challenging the assessment made by the Court of matters of fact. That ground of appeal, according to the respondent, is inadmissible. In one way or another the Commission considers that the appellant acquired knowledge of the factual matters relied on in the application for revision prior to delivery of the judgment of the Court on the action, that is to say before 17 December 1991. Since the appellant's legal representative took part in the written procedure and hearing in the PVC cases he was in a position to apprise himself of those matters of fact already with effect from 19 July 1989, that is to say when the grounds of annulment relied on by the applicants in the PVC cases were published in the Official Journal or, in any event, on 10 December 1991, the date on which the hearing in those cases was concluded.

33 As regards the sixth ground of appeal, the Commission agrees with the reasoning adopted by the Court of First Instance at paragraph 20 of the order appealed against.

34 The seventh and eighth grounds of appeal are based, according to the contentions of the respondent, on a misinterpretation of the relevant procedural provisions. They are based on the mistaken supposition that the procedure followed by the Community judicature in the context of the adjudication of an application for revision must be analogous to that for the adjudication of an action.

35 The ninth ground of appeal makes reference to the unfair treatment allegedly accorded by the Court to the appellant on account of the fact that it did not deliver judgment in all the joined cases on the same date. The Commission observes that no such obligation on the Court can be inferred from any procedural or substantive rule of Community law. In any event, the appellant acquired knowledge of the factual matters in respect of which he made submissions, at the latest on 10 December 1991, that is to say before the Court gave judgment on its action against the Polypropylene decision.

36 In its tenth ground of appeal the appellant submits that, in accordance with the Court's PVC judgment, the Court ought to have checked of its own motion whether the Polypropylene decision had within it substantial procedural defects which rendered it non-existent. However, according to the Court's PVC decision, as the Commission interprets it, judicial review of the Court's own motion is required only in cases where the parties have produced `concrete evidence' of a likelihood that the contested decision was non-existent.

III - My reply to the grounds and arguments of the parties

A - In regard to the Commission's objection of inadmissibility

37 I think it useful, at the outset, to examine the objection of inadmissibility raised by the Commission. It is appropriate first to recall that, under Article 51 of the EEC Statute of the Court of Justice, an appeal `shall be limited to points of law. It shall lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Court of First Instance.' Moreover, the provisions of Articles 113(2) and 116(2) of the Rules of Procedure of the Court of Justice preclude the appellant from changing in its appeal the subject-matter of the proceedings before the Court of First Instance; nor may the subject-matter be changed in the response. In the Commission's submission, to the extent to which the appeal exclusively concerns the issue whether at first instance a `new fact' was submitted of such a nature as to lead to revision of the judgment in respect of which revision is sought, the appeal is inadmissible in its entirety because it raises not a legal but a factual question.

38 None the less, I do not think that as a matter of principle that issue eludes appellate review. The interpretation of Article 41 of the EEC Statute of the Court of Justice and the definition of a fact as `a fact (...) of such a nature as to be a decisive factor, and which was unknown (...) to the party claiming the revision' call for a view on the law to be formed which may be reviewed on appeal. Conversely, the finding of the facts and their appraisal by the Court of First Instance are not reviewable on appeal and, thus, pleas raised in that connection are inadmissible. Accordingly, it is a matter of interpreting the statement of claim on the appeal and of each of the grounds of appeal put forward in order to determine in each case whether the plea is one of misinterpretation of the legal concept of `a fact (...) of such a nature as to be a decisive factor, and which was unknown (...) to the party claiming the revision', which is, as I have said, a matter reviewable on appeal, (11) or whether the plea is one of mistake or misappraisal of the relevant facts by the Court of First Instance, a matter which is not reviewable (12) by the appellate jurisdiction. (13)

B - The grounds of appeal put forward by DSM

In the present case the following matters may be inferred from DSM's appeal pleading and the grounds of appeal contained therein:

39 In my opinion, the grounds of appeal are founded, in their entirety, on a false premiss, inasmuch as they are based on a misreading and misunderstanding of the decision appealed against and on a misinterpretation of the procedural provisions of Community law which govern the remedies of an application for revision and appeal. (14) In particular, DSM's reasoning is based on an interpretation of Article 41 of the EEC Statute of the Court of Justice, (15) adopted in the first ground of appeal. According to the appellant, the Court of First Instance could not determine the point in time when the appellant acquired knowledge of the facts relied on by it in the application for revision before deciding whether those facts were such as to constitute facts of such a nature as to be `decisive', in the words of the aforementioned article.

40 Yet I believe that the logical approach followed by the Court of First Instance fully accords with both letter and spirit of Article 41 of the EEC Statute of the Court of Justice. For an application for revision to be admissible, it is essential that the facts on which it is based should remain unknown to the applicant and to the Court until delivery of the judgment in respect of which revision is sought. In the present case knowledge of the facts must not have been known before 17 December 1991, the date of delivery of the judgment in Case T-8/89. Irrespective, therefore, of whether the matters on which submissions were made in the application for revision constituted or did not constitute `facts' within the meaning of Article 41 of the EEC Statute of the Court of Justice, it was in any event necessary that they came to DSM's knowledge after 17 December 1991. Upon examining those matters of fact, the Court of First Instance found that they had in fact come to DSM's knowledge at an earlier stage. Consequently, the application for revision was inadmissible and the legal classification of those factual submissions redundant. There was therefore no requirement for there to be an examination of whether those facts constituted or did not constitute `facts' within the meaning of the relevant rule of Community law. (16)

41 In light of the foregoing, the third and fifth grounds of appeal are inadmissible and cannot, in any event, avail the appellants; for in those grounds it is argued that the factual submissions made in the application for revision do not amount to `facts' but to mere suppositions as to defects presumed to be latent in the Commission's Polypropylene decision.

42 Furthermore, the second ground of appeal going to inadequacy of the reasoning underlying the order appealed against appears to me to be unfounded. DSM maintains that the Court of First Instance limited its examination to certain only of the factual matters which had been raised in the application for revision, that is to say to those which concerned amendments to the content of the Commission's Polypropylene decision after its adoption. Yet the reply by the Court of First Instance related to all the factual submissions made by the applicant for revision. More particularly, it is stated at paragraph 18 as follows: `(...) The applicant for revision was at that hearing [in the PVC cases] and was represented there by the same lawyer as in the procedure which led to the judgment of 17 December 1991. Consequently, before the judgment was delivered, it could have lodged an application for the re-opening of the oral procedure, relying on the facts mentioned in paragraph 6 above (...)'. Paragraph 6 of the judgment appealed against, together with the immediately preceding paragraph 5 to which it also refers, sets out the entirety of the factual submissions made by the applicant for revision. Consequently, the inference may be drawn from the combination of the abovementioned places in the order appealed against that the judgment by the Court of First Instance as to the knowledge of the relevant facts gained by DSM by means of the participation of its legal representative at the hearing in the PVC cases relates to the entirety of the factual matters on which DSM had based its application for revision. Accordingly, the ground of appeal in that connection must be dismissed as unfounded.

43 Likewise, the fourth ground of appeal is partly inadmissible and partly unfounded. In that ground DSM denies that it was aware of the relevant facts before delivery of the judgment in respect of which revision was sought. For the most part the appellant's accusations are levelled at the appraisal of the facts by the Court of First Instance in regard to the point in time when and the circumstances in which the facts in question became known to the appellant: appraisal of the facts does not constitute a point of law within the meaning of Article 51 of the EEC Statute of the Court of Justice, but is a matter falling within the competence of the court trying the case on its merits, namely the Court of First Instance. (17)

44 Certainly, that ground of appeal is also indirectly challenging the Court's interpretation of what constitutes a `known' fact, in which respect it is admissible but unfounded. Procedural rules of Community law concerning an application for revision do not lay down conditions or restrictions as to the manner in which knowledge of a fact is acquired or as to how it may be inferred that such knowledge was acquired. Consequently, the Court of First Instance is free in that regard to assess any item of evidence, including participation of the applicant for revision or of its representative in other proceedings, having a different subject-matter, in the course of which the relevant facts on which the application for revision is based were discovered. (18)

45 In its sixth ground of appeal the appellant alleges that the Court of First Instance declined to take into consideration as relevant facts, first, the delivery of the PVC judgment of 27 February 1992 and, secondly, that the Commission did not reply to the letter sent by DSM on 5 May 1992. In the present case the Court of First Instance held that those matters did not amount to knowledge of some different `fact' but merely gave rise to precisely the same suppositions concerning the formal legality of the decision at issue as those which a series of earlier facts created or ought to have created in DSM's mind. Thus, to the extent to which the Court of First Instance adjudged that DSM was already aware of the suppositions in question or, in any event, could have been, no later than 10 December 1991, that is to say prior to delivery of the judgment at first instance on the action brought against the Commission's Polypropylene decision, it was right not to take into account subsequent facts or matters which made it likely that the same formal defects were present. In appraising the admissibility of the application for revision, it is necessary on each occasion to identify the point in time when knowledge of a `fact' of such a nature as to be a `decisive factor' was first acquired. (19)

46 In its ninth ground of appeal DSM submits that it suffered unfair treatment at the hands of the Court of First Instance on account of the fact that judgment on the action brought by it against the Commission's Polypropylene decision was delivered on a different date from the date on which judgment was given on the corresponding actions brought by other undertakings against the same decision. However, in accordance with a general principle of Community procedural law, the Court is master of the procedure before it and enjoys complete freedom in choosing the date of delivery of its judgments. Nor, moreover, may it be inferred from any other procedural principle, for example the sound administration of justice or the right of Community-law subjects to judicial protection, that the Court of First Instance is obliged to give judgment on all related cases on the same date, even where they are joined cases.

47 Finally, I am of the view that the three remaining grounds of appeal should also be dismissed. The appellant maintains, first, that the Court of First Instance was wrong to decline to examine the application for revision on its merits, secondly, that it failed to order measures of organisation of procedure in order for the suppositions of likely formal defects in the Commission decision to be tested and, thirdly, that it did not conduct a review of its own motion of those defects in light, moreover, of the matters also relied on by DSM. By adopting that position, the Court of First Instance, in the appellant's submission, infringed Community law and went back on its holding in the PVC cases.

48 The appellant's reasoning is based on the false premiss in law that, when an application for revision comes before it, the Community judicature is always obliged to examine the case on its merits, ordering any measures of organisation of procedure which may be appropriate and examining issues which call for review of its own motion. However, under Article 41 aforesaid of the EEC Statute of the Court of Justice and Article 127 of the Rules of Procedure of the Court of First Instance, examination of the merits of the dispute by the Court on an application for revision is appropriate only where submissions are contained in the application for revision concerning matters of such a nature as to be a decisive factor which, when the judgment was given, were unknown to the party claiming revision. (20) Accordingly, since the Court of First Instance held that the applicant for revision was aware of all the facts relied on by it as being facts of such a nature as to be a `decisive factor', the claim in that connection was inadmissible and the Court of First Instance was right not to embark on an examination of the merits of the case.

IV - Conclusion

49 In light of all the foregoing I propose that the Court should:

(1) Dismiss the appeal by DSM NV in its entirety;

(2) Order the appellant to pay the costs.

(1) - Order of 4 November 1992 in Case T-8/89 REV DSM v Commission [1992] ECR II-2399.

(2) - Case T-8/89 DSM v Commission [1991] ECR II-1833.

(3) - IV/31.149 - Polypropylene, OJ 1986 L 230, p. 1.

(4) - OJ, English Special Edition 1959-1962, p. 87.

(5) - Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, 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.

(6) - See footnote 5 above.

(7) - Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005.

(8) - See footnote 7 above.

(9) - Cases T-9/89 Hüls v Commission [1992] ECR II-499, T-10/89 Hoechst v Commission [1992] ECR II-629 and T-11/89 Shell and Others v Commission [1992] ECR II-757.

(10) - Judgment in Case 131/86 United Kingdom v Council [1988] ECR 905.

(11) - For example, the Court has reviewed on appeal the notions of `dependent child' (Case C-70/91 P Council v Brems [1992] ECR I-2973), `excusable error' (Case C-195/91 P Bayer v Commission [1994] ECR I-5619), `fault' of such a nature as to render the Community non-contractually liable (Case C-220/91 P Commission v Staahlwerke Peine-Salzgitter [1993] ECR I-2393), `effect' on trade between Member States contrary to Article 86 of the Treaty (Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, `compensation for non-material damage' under the Community law relating to members of staff (Case C-119/94 P Coussios v Commission [1995] ECR I-1439.

(12) - See, for example, judgment in Case C-346/90 P F. v Commission [1992] ECR I-2691. A plea challenging the Court of First Instance's appraisal of the medical character of the findings made by the committee appointed to decide whether invalidity is of occupational origin is inadmissible.

(13) - As regards the Commission's ancillary plea of inadmissibility of one of the heads of claim in the statement of claim on appeal, the following observations should be made: first, the appellant is seeking, legitimately and without its claim being called in question by the Commission, the setting aside of the order of the Court of First Instance of 4 November 1992 rejecting its application for revision of the original judgment at first instance of 17 December 1991. The admissibility of its remaining heads of claim, including the claim concerning the refund, with the Court's leave, of the amounts of fine paid, which is repudiated by the Commission, will be examined at a later stage following examination of the grounds of appeal and subject to the reservation that one or more of those heads of claim are adjudged by the Court to be well founded. Suffice it at this stage to point out that the Commission's objections appear to be supported by existing case-law. The Court has already held that it is not entitled to assume the role assigned to other Community institutions by ordering the necessary measures to ensure compliance or issuing directions to those institutions (Case 141/84 De Compte v Parliament [1985] ECR 1951, paragraph 22, and Case 53/85 AKZO Chemie and Others v Commission [1986] ECR 1965, paragraph 23).

(14) - In view of that, application could usefully be made in the present case of the provision contained in Article 119 of the Rules of Procedure of the Court pursuant to which the Court may, when called on to adjudicate upon an appeal which is manifestly inadmissible or manifestly unfounded, by reasoned decision dismiss the appeal.

(15) - Also applied by analogy to applications for revision submitted to the Court of First Instance pursuant to Article 125 of the Rules of Procedure of the Court of First Instance.

(16) - There have been cases in which the Community judicature, on an application for revision, has found that the factual submissions put forward were known either to the Court (Case 1/60 Acciaieria Ferreira di Roma v High Authority of the ECSC [1960] ECR 353, or to the applicant (Case C-130/91 REV ISAE/VP and Interdata v Commission [1995] ECR I-407). There are also cases in which facts were unknown to the Court and to the party but were held not to be a decisive factor in the determination of the dispute (Case C-295/90 REV Council v Parliament, Commission, United Kingdom and Netherlands [1992] ECR I-5299, and Case 107/79 Schuerer v Commission [1983] ECR 3805). Finally, the Court at times applies both criteria (Case 285/81 Geist v Commission [1984] ECR 1789 and Case C-130/91 REV II ISAE/VP and Interdata v Commission [1996] ECR I-65).

(17) - Nor, moreover, has the appellant alleged or proven that the evidence was distorted by the Court of First Instance, an allegation which would be reviewable on appeal (Case C-136/92 P Commission v Brazzalli Lualdi and Others [1994] ECR I-1981, paragraph 49).

(18) - Knowledge of the `fact' may have been acquired purely by chance: see judgment in Case 116/78 REV Bellintani and Others v Commission [1980] ECR 23.

(19) - For an application for revision to be admissible there must have been a `total absence of knowledge' on the part of the Court or the applicant: see Bellintani v Commission cited above in footnote 18. Moreover, a party who through his own fault did not gain knowledge of a fact in time cannot plead the lateness of his being informed in order to obtain reopening of the oral procedure: see Case 56/70 Mandelli v Commission [1971] ECR 1. In that case the applicant for revision relied on a report by the Italian authorities of which he received knowledge only after completion of the original proceedings. But the Court held that the applicant could not have been unaware of the existence of that report, and that nothing prevented it from proposing to the Court that it should conduct a `preparatory inquiry directed towards the production (...) of the document in question and any other relevant information in the hands of the Italian administration.' On those grounds the Court dismissed the application for revision.

(20) - Revision is an exceptional form of relief which is subject to strict conditions of admissibility and is not to be regarded as a second review of the merits of a case. That has been reiterated many times by the Court in its settled case-law: see Bellintani v Commission (footnote 18) and ISAE/VP and Interdata v Commission (footnote 16).

Full & Egal Universal Law Academy