Opinion of Advocate General Gulmann

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.

The nonexistence of the Commission decision

2. Bayer claims that:

3. In its judgments of 10 March 1992 in seven of the Polypropylene cases, 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 nonexistent. The Court of First Instance rejected those requests for what are essentially identical reasons, from which it may be profitable to quote:

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 nonexistence 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.

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.

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 Empfangsbestätigung, 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.

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.

Opinion

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

1 Original language: Danish.

2 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]ECRn-315.

3 Judgments in Case T-9/89 Hüls v Commission [1992] ECR 1II-499, Case T-10/89 Hoechst y Commisàon [1992] ECRn-629, Case T-l 1/89 Shell v Commission [1992] ECRn-757, Case T-12/89 Solvay v Commission [1992] ECRII-907, Case T-13/89 ICI v Commission [1992] ECR II-1021, Case T-14/89 Monudipe T Commission [1992] ECRII-1155 and Case T-15/89 Chemie Linz y Commission [1992] ECR II-1275.

4 Quotation from paragraph 385 of the judgment of the Court of First Instance in Case T-9/89 Hüls y Commission [1992] ECR II-499.

5 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.

6 Paragraph 10 of that judgment reads as follows: With regard to the argument that the decision ... is nonexistent, it is necessary to point out that under Community law, as under the national laws of the various Member Sutes, 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 nonexistent, the rinding 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.

7 These arc respectively Case C-49/92 P Commission v Enichem Anic and Case C-51/92 P Hercules v Commission.

8 Case T-8/89 Rev. DSM v Commission.

9 Case C-255/92 P BASF v Commission.

10 In support of its view, Bayer refers to the Court's judgment in Case 284/82 Bussent 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.