Opinion of Advocate General Gulmann delivered on 15 September 1992

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Sutes, an administrative measure, even though it may be irregular, is presumed to be valid until it has been properly repealed or withdrawn by the institution which adopted it.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.