Opinion of Advocate General Van Gerven delivered on 29 June 1993

1 Original language: Dutch.

2 Judgment in 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.

3 OJ 1989 L 74, p. 1.

4 Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the EEC Treaty, OJ, English Special Edition 1959-1962, p. 87.

5 Namely Atochem SA, BASF AG, NV DSM and DSM Kunststoffen BV, Etlichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries PLC, NV Limburgse Vinyl Maatschappij, Montedison SpA, Norsk Hydro AS, Société Artésienne de Vinyle SA, Solvay et Cie, Shell International Chemical Company Ltd and Wacker Chemie GmbH.

6 In accordance with Arnele 19(1) of Regulation No 17 and Commission Regulation No 99/63/EEC of 25 July 1963 on hearings provided for in Article 19(1) and (2) of Council Regulation No 17, OJ, English Special Edition 1963-1964 p. 47.

7 With the exception of Solvay et Cie.

8 Pursuant to Article 3(1) and Article 14 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities (88/591/ECSC, EEC, Euratom), OJ 1988 L 319, p. 1, with corrigenda set out in OJ 1989 L 241, p. 4).

9 See paragraph 9 of the PVC judgment.

10 PVC judgment, paragraphs 32 to 50. The expression is used in paragraph 49 of the PVC judgment.

11 PVC judgment, paragraphs 51 to 65.

12 Rules of Procedure of the Court of Justice of the European Communities of 19 June 1991, OJ 1991 L 176, p. 7.

13 Decision of 19 June 1991 of the Court of Justice on Extension of Time-Limits on Account of Distance, taken pursuant to Article 81(2) of the Rules of Procedure and set out in Annex II to the Rules of Procedure published in OJ 1991 L 176, p. 32.

14 See in particular the judgments in Case 209/83 Valsabbia v Commission [1984] ECR 3089, paragraph 14, Case 42/85 Cockerill-Sambre v Commission [1985] ECR 3749, paragraph 10, Case 152/85 Misset v Council [1987] ECR 223, paragraph 11, and Case 276/85 Cladakis v Commission [1987] ECR 495, paragraph 11; and the order in Case C-59/91 France v Commission [1992] ECR I-525, paragraph 8.

15 Judgments of 15 December 1966 in Case 28/65 Fonzi v Commission [1966] ECR 477, at 491, and in Case 31/65, of the same name, [1966] ECR 513, at 519. The Court held in those cases that, since at the date from which the period allowed for lodging an appeal began to run, and for the whole of that time the applicant was employed in Brussels, his habitual place of residence was Belgium.

16 Judgment in Cockerill-Sambre v Commission, cited in footnote 13, paragraph 11. See also (inter alia) in more implicit terms the judgment in Joined Cases 220 and 221/78 A. L. A. and A. L. F. E. R. v Commission [1979] ECR 1693 and the judgment in Valsabbia v Commission, also cited in footnote 13. As long ago as 10 December 1957, the Court held that as a result of the delivery of a letter from the High Authority to an employee of the undertaking at the address where it had its registered office, that letter had arrived within the control of the undertaking concerned: judgment in Case 8/56 ALMA v High Authority [1957 and 19581 ECR 95, at 98 and 99.

17 Cf. the definition of the expression real head office in the Opinion of Advocate General Darmon in Case 81/87 The Queen v Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust PLC [1988] ECR 5500, paragraph 5.

18 Under Article 77 of the ECSC Treaty, Article 216 of the EEC Treaty and Article 189 of the EAEC Treaty, the seat of the institutions of the Communities is to be determined by common accord of the Governments of the Member States. The Court repeatedly held that that obligation had failed to be fulfilled: see the judgments in Case 230/81 Luxembourg v Parliament [1983] ECR 255, paragraph 36, in Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821, paragraph 29, and in Joined Cases C-213/88 and C-39/89 Luxembourg v Parliament [1991] ECR I-5643, paragraph 52.

19 OJ 1967 L 152, p. 18.

20 The Court, too, has observed this, albeit in passing: see the judgment in Case 230/81 Luxembourg v Parliament, cited in footnote 17, where it is mentioned that when the Councils and Commissions provided for by the [ECSC, EEC and EAEC] Treaties were established in Brussels ... (paragraph 3).

21 Treaty of 8 April 1965 establishing a Single Council and Single Commission of the European Communities, OJ 1967 No 152, p. 2.

22 Cf. Article 37 of the Mercer Treaty, on the basis of which the Member States took the decision of 8 April 1965. See inter alia M. Schweitzer, Artikel 216, in Grabitz Kommentar zum EWG-Vertrag, Munich, Beck, p. 1, No 3; see also for the history of the provisional places of work of the institutions since the declaration of 7 January 1958 of the Ministers of Foreign Affairs of the original Six, G.-E. zur Hausen, Artikel 216, in Groeben-Thiesing-Ehlermann, Kommentar zum EWG-Vertrag, IV, Baden-Baden, Nomos, 1991, pp. 5462-5464; J.-L. Dewost, Article 216, in Le droit de la Communauté économique européenne (Commentaire Mégret), XV, Brussels, Editions de l'Université Libre de Bruxelles, 1987, p. 267 et seq.

23 OJ 1992 C 341, p. 1. The text of the decision is also published in Bull. EC, 12-92, p. 25.

24 Cf. R. Joliet and W. Vogel, Le tribunal de première instance des Communautés européennes, Revue du Marché commun, 1989, (423), p. 430.

25 Judgment in Case C-346/90 P F. v Commission [1992] ECR I-2691, paragraph 7; judgment in Case C-283/90 P Vidrányi v Commission [1991] I-4339, paragraphs 12 and 13; judgment in Case C-132/90 P Schwedler v Parliament [1991] ECR I-5745, paragraph 10; see also the earlier order in Case C-115/90 P Turner v Commission [1991] ECR I-1423, especially paragraph 13. In other words, an appeal whose pleas are confined to contesting a purely factual assessment of the Court of First Instance which itself is not based on any rule of law is inadmissible: see, expressly, the judgment in Schwedler v Parliament, cited above, at paragraph 10. For further confirmation, see the judgment in Case C-107/90 P Hochbaum v Commission [1992] ECR I-157, paragraphs 9 and 16, the judgment in Case C-378/90 P Pitrone v Commission [1992] ECR I-2375, paragraphs 12 and 13, and the judgment in F.v Commission, cited above, more specifically at paragraphs 10, 14 and 18.

26 Accordingly, the changes made to a particular language version of the Decision which were mentioned by a number of respondents (in particular, BASF AG, Hoechst AG and Société artésienne de vinyle) in their reply but not expressly established by the Court of First Instance in the PVC judgment cannot be considered.

27 The broad wording of Article 51 of the Statute of the Court of Justice of the EEC as regards the ground of appeal infringement of Community law can only confirm this. See in this connection inter alia H. Schermers and D. Wael- broeck, Judicial Protection in the European Communities, Deventer, Kluwer Law & Taxation, 1992, p. 515, § 893: By its wide formulation, it prevents all doubt about whether all aspects of Community law can be controlled by the Court of Justice.

28 Judgment in Vidrányi v Commission, cited in footnote 24, at paragraphs 19 and 29 respectively.

29 See in that connection my Opinion in Costacurta v Commission [1991] ECR I-5459, paragraph 3, where reference is made to the relevant experience of supreme courts in the Member States.

30 Case 131/86 United Kingdom v Council [1988] ECR 905.

31 PVC judgment, paragraph 40.

32 OJ 1986 L 95, p. 45.

33 Judgment in United Kingdom v Council, paragraphs 35, 36 and 37.

34 Judgment in United Kingdom v Council, paragraphs 38 and 39 and paragraph 1 of the operative part.

35 See in particular paragraph 35 of the judgment in United Kingdom v Council.

36 See paragraph 33 of the judgment in United Kingdom v Council.

37 The changes referred to in the first indent of paragraph 41 concern two minor additions to point 7 of the German version of the notified and published version of the Decision compared with the German version of the draft Decision (dated 14 December 1988): (i) the addition of footnote 2, which reads In any case both Hüls and Hoechst are identified by ICI and BASF as participants in the meetings; and (ii) the addition to the main text of the sentence in brackets Hoechst, the only other possibility, was only a minor producer of PVC. The change referred to in the second indent is even more limited: it relates to the replacement of the phrase Die Unternehmen streiten offensichtlich nicht ab (the undertakings apparently do not deny) by Die Unternehmen bestreiten zwar nicht (the undertakings admittedly do not deny).

38 This indent refers to the change made to the first paragraph of point 41 of the Decision. It consists in the omission of a word, namely Rationalisierungsprozess (rationalization) from the notified and published German version as follows (I quote the text of the draft decision): Die europäische Petrochemie-Industrie einschliesslich des PVC-Sektors hat in dem von dieser Entscheidung erfassten Zeitraum einen grundlegenden Umstrukturierungs- und Rationalisierungsprozess durchlaufen, der von der Kommission unterstützt worden ist (Over the period covered by the present decision the Western European petrochemical industry — including the PVC sector — has undergone a substantial restructuring and rationalization process, which has received the support of the Commission.)

39 Application of the criteria developed by the Court in the judgment in Case C-69/89 Nakajima v Council [1991] ECR I-2069 also leads to this outcome; see sections 48, 53 and 54 below.

40 Judgment in United Kingdom v Council, paragraph 6.

41 For the impact of this on the question as to whether the Commission's Rules of Procedure may be invoked, see section 55 below.

42 This is also consistent case-law: cf. the judgment in Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409, at 415, as long ago as 11 July 1968.

43 See in particular paragraph 47 of the PVC judgment (concerning the addition of a new paragraph to point 27 of the Decision, paragraphs 49 and 50 (concerning the change made to the operative part of the Decision), paragraph 61 (concerning the competence ratione temporis of the Member of the Commission responsible for competition matters), paragraph 72 (concerning the significance under Community law of authenticating measures contained in the Rules of Procedure), paragraph 96 (concerning the classification of the measure as a decision within the meaning of Article 189 of the EEC Treaty) and paragraph 98 (concerning the appearance of the measures notified and published).

44 See most recently the judgment of 4 June 1992 in Case C-181/90 Consorgan v Commission [1992] ECR I-3557, paragraph 14; earlier cases include the judgments in Joined Cases 96 to 102, 104, 105, 108 and 110/82 NV IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraph 37, in Case 8/83 Bertoli v Commission [1984] ECR 1649, paragraphs 12 and 13, in Case 32/86 Sisma v Commission [1987] ECR 1645, paragraph 8, and in Case C-358/90 Compagnia Italiana Alcool v Commission [1992] ECR I-2457, paragraph 40. An earlier formulation of that principle is to be found in the judgment in Case 16/65 Schwarze [1965] ECR 877, at 889.

45 See the judgment in Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 19, and the judgment in Case 185/83 University of Groningen [1984] ECR 3623, paragraph 38. More recently, see the judgment in Case C-350/88 Delacre v Commission [1990] ECR I-395, paragraph 15, and the judgment of 1 April 1993 in Joined Cases C-260/91 and C-261/91 Diversinte and Iberlacta [1993] ECR I-1885, paragraph 11.

46 Judgment in Consorgan v Commission, paragraph 14; judgment in Sisma v Commission, paragraph 8 (cited in footnote 8). See the judgment in Case 13/72 Netherlands v Commission [1974] ECR 27, paragraph 11, and the judgment in Case 819/79 Germany v Commission [1981] ECR 21, paragraph 19. See with regard to the case-law of the Court of Justice concerning the principle that the requirement to state reasons must be assessed in the light of the nature of the measure in question: G. Le Tallec and C. D. Ehlermann, La motivation des actes des Communautés européennes, Revue du Marché commun, 1967, p. 179 et seq.; see also C. Hen, La motivation des actes des institutions communautaires, Cahiers de droit européen, 1977, (49), pp. 73 to 78.

47 See the judgment in Schwarze, cited in footnote 43, at 888; cf. also the judgment in Delacre, paragraph 16.

48 See, as regards the last point, the judgment in Joined Cases 296 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19; judgment in Case 41/83 Italy v Commission [1985] ECR 873, paragraph 46.

49 See inter alia the judgment in IAZ v Commission, cited in footnote 43, at paragraph 37; judgment in Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 14; judgment in Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22; judgment in Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, paragraph 88; judgment in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 72; judgment in Case 246/86 Belasco v Commission [1989] ECR 2117, paragraph 55. This case-law has been expressly taken over by the Court of First Instance: see in particular the judgment in Case T-44/90 La Cinq v Commission [1992] II-1, paragraphs 41 and 42; the polypropylene judgments of 10 March 1993, including the judgments in Case T-10/89 Hoechst v Commission [1992] II-629, paragraph 312, and in Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 319; judgment in Case T-66/89 Publishers Association v Commission [1992] ECR II-1995, paragraph 75.

50 Judgment in Joined Cases 209/78 to 215/78 and 218/78 Van Landeweyck v Commission [1980] ECR 3125, paragraph 66; judgment in Michelin v Commission, paragraph 14; judgment in VBVB and VBBB v Commission, paragraph 22; judgment in Case 86/82 Hasselblad v Commission [1984] ECR 883, paragraph 17; judgment in Stichting Sigarettenindustrie, paragraph 88; judgment in BAT and Reynolds v Commission, paragraph 72; judgment in Belasco v Commission, paragraph 55. As long ago as the judgment in Consten and Grundig v Commission the Court held that the Commission had not infringed the rights of the defence on the ground that in non-judicial proceedings of this kind the administration is not required to give reasons for its rejection of the parties' submissions: Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at 338.

51 See, expressly, the judgment in VBVB and VBBB v Commission, paragraph 22; and the judgment in Case 42/84 Remia v Commission [1985] ECR 2545, paragraphs 26 and 27.

52 Judgment in Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 78 (emphasis added). In the judgment in the Cimenteries case, the Court employed the criterion of the decision's being'sufficiently clear': judgment in Joined Cases 8 to 11/66 Cimenteries v Commission [1967] ECR 75, at 94.

53 Judgment in Case 55/69 Cassella v Commission [1972] ECR 887, paragraph 22 (my emphasis).

54 Judgment in ACF Chemiefarma v Commission, paragraph 80.

55 Judgment in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 118.

56 Judgment in Case 73/74 Papiers Peints v Commission [1975] ECR 1491, in particular paragraphs 31 and 34; judgment in BAT and Reynolds v Commission, paragraph 71; judgment in Delacre v Commission, paragraph 15.

57 In that connection it has been rightly observed that the requirement to state reasons is an inevitable corollary of the right to bring legal proceedings, in the sense that it enables that right to be exercised under the best possible conditions: see F. Schockweiler, La motivation des décisions individuelles en droit communautaire et en droit national Cah. Dr. Eur., 1989, (3), p. 33.

58 See the judgment in Consten and Grundig [1966] ECR 299, at 339.

59 For the references of those cases see footnotes 54 and 49 respectively.

60 Judgment in Suiker Unie, paragraphs 227 to 232.

61 Judgment in Hasselblad v Commission, paragraph 40.

62 I therefore consider that the parallel drawn with Article 66(1) of the Court's Rules of Procedure by Hüls AG in its written observations is completely misconceived. That provision empowers the Court, within two weeks after the delivery of a judgment, to rectify clerical mistakes, errors in calculation and obvious slips in it. That power to effect corrections, however, concerns the period after the judgment has been delivered in open court and after each of the parties has been served with a certified copy (see Article 64 of the Rules of Procedure); in contrast, in this case the corrections were made to a decision before it was notified to the parties.

63 My emphasis.

64 The criterion for the distinction between decisions and regulations is precisely whether or not the measure in question is of general application, that is to say whether or not it is addressed to a limited number of persons: see the judgment in Joined Cases 16 and 17/62 Producteurs de Fruits v Council [1962] ECR 471, at 478, as long ago as 14 December 1962.

65 OJ, English Special Edition 1952-1958, p. 59, as most recently amended by Section XVII of Annex I to the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the treaties (OJ 1985 L 302, p. 242). That article provides as follows: Documents which an institution ... sends to a Member State or to a person subject to the jurisdiction of a Member Sute shall be drafted in the language of such State.

66 Judgment in Suiker Unie, paragraph 111, my emphasis.

67 A somewhat unhappy reference is made to that document in the third indent of paragraph 26 of the PVC judgment: as I have mentioned, the number of that document is SEC (88) 2033, and not, as the Court of First Instance states, SEC (88) OJ 945, point 15. Although the tide, as mentioned by the Court of First Instance, is Note for the attention of Members of the Commission, the document clearly indicates — but this is not stated by the Court of First Instance — that it is the Minutes of the special meeting of the Chefs de Cabinet held on 19 December 1988, which refers to document No C (88) 2497 (that is to say, the draft decision in English, French and German).

68 PVC judgment, paragraph 37. See in this connection also the following footnote.

69 According to the Dutch, French, German and Italian versions of the PVC judgment. Only in the English version of the judgment is it stated in paragraphs 37 and 46 that the Commission'took note of the results of the examination'. I therefore assume from this that the first four language versions most faithfully reproduce the point of view of the Court of First Instance.

70 See footnote 66 above.

71 Paragraph 47 of the PVC judgment.

72 Cf. PVC judgment, paragraph 44.

73 Judgment in VBVB and VBBB v Commission, cited in footnote 48, at paragraph 25 (emphasis added). More recently, the Court confirmed this case-law in its judgment in Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 16. Moreover, the Court of First Instance takes this case-law as its starting point: see in particular the judgments in Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 52, and in Case T-9/89 Hüls v Commission [1992] ECR II-499, paragraph 47. In both those judgments, the Court of First Instance stated that in so far as the Commission had developed rules on access to files which went further than was required by the rights of the defence, and published them in its reports on competition policy, it could not deviate from the rules which it itself had laid down: judgment in Case T-7/89 Hercules Chemicals v Commission, paragraph 53; judgment in Case T-9/89 Hüls v Commission, paragraph 48; see also in this connection the judgment of the Court of First Instance in Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR v Commission [1992] ECR II-2667, paragraphs 40 and 41, and, very recently, the judgment in Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, paragraph 29.

74 PVC judgment, paragraph 49.

75 PVC judgment, paragraph 50.

76 Judgment in Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 132 and 133; judgment in Case 52/69 Ceigy v Commission [1972] ECR 787, paragraph 44; see also the judgment in Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, paragraph 15. In the judgment in Case 107/82 AEG v Commission [1983] ECR 3151, at paragraphs 49 and 50, the Court held, in keeping with that case-law, that a check on whether a parent company actually made use of its power of control was superfluous in the case of a wholly-owned subsidiary. See also in this connection the very recent case of the Court of First Instance which is cited in footnote 72, BPB Industries and British Gypsum v Commission, at paragraph 149.

77 The Court of First Instance found only that that amendment was made to Article 1 of the Decision. In paragraph 43 of its appeal the Commission mentions that the reference (EMC Group) also occurred in Article 5 of the draft decision. As this is a finding of fact, I must leave this out of account here. For the same reason I am precluded from considering the Commission's argument (at the end of paragraph 43 of the appeal) that that reference was included in documents served on SAV.

78 See in particular points 2, 7, 8, 9, 26 (footnote 1), 43, 48 and 54 of the Decision. In points 9, 26 (footnote 1), 43 and 48 reference is made to SAV's status as the parent company of LVM, a joint venture set up by DSM and SAV in mid-1993 in which they combined their PVC interests. Such a reference to SAV's downstream affiliation has in any event nothing to do with the reference in an upstream direction to theEMC Group with which we are concerned here. Moreover, point 43 of the Decision accurately states that SAV was responsible for its involvement in the PVC cartel only until LVM was set up and that after the formation of LVM that undertaking participated in the cartel in its own right (see as regards the last aspect also points 48 and 54 of the Decision).

79 See the judgment in Cassella v Commission, cited in footnote 52, at paragraph 22.

80 See footnote 64 for the reference and content of this provision.

81 Rules of Procedure of the Commission (63/41/EEC), OJ, English Special Edition, Second Series VII, p. 9. Since then, the Rules of Procedure have been amended in various respects, but not Article 12 thereof: see the Provisional Rules of Procedure of the Commission (67/426/EEC) (67/24/Euratom), OJ, English Special Edition, Second Series VII, p. 14; Decision of the Commission of 23 July 1975 amending the Provisional Rules of Procedure of the Commission of 6 July 1967 (75/461/Euratom, ECSC, EEC), OJ 1975 L 199, p. 43; Decision of the Commission of 6 January 1981 amending the Provisional Rules of Procedure of the Commission of 6 July 1967 (81/2/Euratom, ECSC, EEC), OJ 1981 L 8, p. 16; Decision of the Commission of 6 January 1986 amending the Provisional Rules of Procedure of the Commission of 6 July 1967 (86/61/EEC, Euratom, ECSC) OJ 1986 L 72, p. 34. For the wording of Article 12, see section 60, below.

82 For the text of that provision see section 38, below.

83 PVC judgment, paragraph 57.

84 PVC judgment, paragraph 58.

85 PVC judgment, paragraph 59.

86 With regard to that principle, see in particular J. Amphoux, Article 162, al. 2 —Article 16 du traité de fusion, in Le droit de la Communauté économique européenne (Commentaire Mégret), IX, pp. 247-248, No 7. See for the historical background to the principle of collegiate responsibility as expressed in the design of the High Authority in the context of the ECSC, C. F. Orphüls, Zur ideengeschichtlichen Herkunft der Gemeinschaftsverfassung, in Probleme des europäischen Rechts, Festschrift für Walter Hallstein, Frankfurt, Klostermann, 1966, (387), pp. 395-396. See also, for a more personal testimony, W. Hallstein, Die europäische Gemeinschaft, Düsseldorf-Wenen, Econ, 1979, p. 83.

87 The wording of this provision is virtually word-for-word that of the former first paragraph of Article 163 of the EEC Treaty. That article was repealed by Article 19 of the Merger Treaty.

88 Judgment in Case 5/85 Akzo Chemie v Commission [1986] ECR 2585, paragraph 30.

89 For the reference of the relevant Commission decision, see footnote 80.

90 The remaining paragraphs of Article 27 read as follows:Officials may also Be empowered to take such measures if this is indispensable for the Commission properly to be able to fulfil its tasks. Unless they have been delegated to him personally powers vested in an official shall be valid for his deputy. Powers conferred in this way may not be sub-delegated except to the extent expressly laid down in the enabling decision. The provisions of this article shall not affect the rules concerning delegation in respect of financial matters and staff administration.

91 See, as regards the proceedings before the Court of First Instance, paragraph 16 of the PVC judgment.

92 PVC judgment, paragraph 57.

93 Judgment in AKZO v Commission, paragraph 35. The Court referred to the judgment in VBVB and VBBB v Commission, which is cited in footnote 48, and more specifically to paragraph 14 of that judgment.

94 Judgment in AKZO v Commission, paragraphs 36 and 37.

95 Namely paragraphs 38, 39 and 40 of the judgment in AKZO v Commission.

96 The quote is from the judgment of the Court of Justice in Joined Cases 97 to 99/87 Dow Chemical Ibérica v Commission [1989] ECR 3165, at paragraph 58 in fine. In that paragraph the Court refers expressly to the AKZO judgment of 23 September 1986 in rejecting a complaint to the effect that the Member of the Commission responsible for competition matters lacked the authority to sign a decision ordering an investigation. See also section 82 below.

97 Judgment in AKZO v Commission, paragraph 39 in fine.

98 Cf. the distinction which the Court made as long ago as the judgment in Köster, with regard to the separation of powers between the Council and the Commission in the sphere of the common agricultural policy, between essential and implementing measures: judgment in Case 25/70 Einfuhrund Vorratsstelle v Köster [1970] ECR 1161, paragraphs 6. Recently, the Court explained that the description essential rules must be reserved forprovisions intended to achieve the fundamental objectives of Community policy (unofficial translation): judgment of 27 October 1992 in Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraph 37. In the judgment in the Rey Soda case, the Court held with regard to the Commission's implementing powers under Article 155 of the EEC Treaty that it follows from the context of the Treaty ... and also from practical requirements that the concept of implementation must be given a wide interpretation: judgment in Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, paragraph 10.

99 See PVC judgment, paragraph 57.

100 Early on, the Court held, in the context of the ECSC, that a discretionary power conferred on a Community institution by the Treaty implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy could not be delegated, since that would bring aboutan actual transfer of responsibility and would therefore constitute a breach of the balance of powers characteristic of the institutional structure of the Community which the Court regarded as a fundamental guarantee granted by the (ECSC) Treaty in particular to undertakings and associations of undertakings: judgments in Case 9/56 Meroni v High Authority [1957 and 1958] ECR 133, at 152, and in Case 10/56 Meroni v High Authority [1957 and 1958] ECR 177, at 173.

101 Judgment in AKZO v Commission, paragraph 38. The Court rightly added that the power conferred on the Commission by Article 14(3) of Regulation No 17 is exercised precisely and above all when the Commission expects that the undertakings will not submit voluntarily to an investigation. See for more recent confirmation the judgment in Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraphs 44 and 46, and the judgment in Dow Chemical Ibérica v Commission, cited in footnote 95, at paragraph 58.

102 As far as the latter measures are concerned, reference may be made in particular to the powers available to Commission officials, acting on its authority, under Article 14(1) of Regulation No 17 in carrying out investigations ordered by the Commission by decision taken under Article 14(3) of that regulation. In the context of the ECSC, the Court of Justice repeatedly held that the instructions by virtue of which the High Authority had checks carried out under Article 47 of the ECSC Treaty constituted the actual exercise of its powers and not their delegation and accordingly that the procedure and publicity required for a delegation of powers [were] not here applicable: judgment in Case 18/62 Barge v High Authority [1963] ECR 259, at 276; judgment in Case 67/69 SIMET v Commission [1971] ECR 197, paragraph 7; see also the judgment in Case 30/65 Macckiorlati Dalmas v High Authority [1966] ECR 35, at 54.

103 Judgment in Case 8/72 Cementhandelaren v Commission [1972] ECR 977, paragraph 12; judgment in ICI v Commission, cited in footnote 75, at paragraph 13; judgment in Geigy v Commission, cited in the same footnote, at paragraph 5; judgment in Cassella v Commission, cited in footnote 52, at paragraph 5.

104 Judgment in ICI v Commission, cited in footnote 75, at paragraph 14; judgment in Geigy v Commission, cited in the same footnote, at paragraph 5; judgment in Cassella v Commission, cited in footnote 52, at paragraph 5; judgment in Cementhandelaren v Commission, cited in the preceding footnote, at paragraph 13.

105 Judgment in VBVB and VBBB v Commission, cited in footnote 48, at paragraph 14, where reference is made to judgments cited in the last footnote: ICI v Commission, paragraphs 11 to 15, and Cementhandelaren v Commission, paragraphs 10 to 14. See also, albeit not in connection with competition law, the judgment in Case C-200/89 Funoc [1990] ECR I-3369, paragraph 14, which also refers to the two judgments mentioned above. For the judgment in Funoc see section 52 below.

106 The Court applied that rule to itself in the past when the Community had only four official languages: cf. the judgment in Case 1/60 FERAM v High Authority [1960] ECR 165, at 170. The Court held in that case that like all the institutions of the three Communities, the Court is cognizant of four languages by an irrebuttable presumption of law.

107 See, as regards compliance with this equality of languages in the (early) case-law of the Court, O. Riese, Das Sprachenproblem in der Praxis des Gerichtshofs der europäischen Gemeinschaften, in Vom Deutschen zum europäischen Recht, Festschrift für Hans Dölle, II, Tübingen, Mohr, 1963, p. 507 et seq. As regards the specific problems to which the multilingual nature of Community legislation gives rise in the Court's case-law, see P. Brasselmann, Übernationales Recht und Mehrsprachigkeit. Linguistische Überlegungen zu Sprachproblemen im EuGH-Urteilen, Europarecht, 1992, p. 55 et seq.

108 In this connection, I would observe that the Commission's Rules of Procedure does not contain a provision similar to Article 8 of the Council's Rules of Procedure (Rules of Procedure adopted by the Council on 24 July 1979 on the basis of Article 5 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (79/868/ECSC, EEC, Euratom), OJ 1979 L 268, p. 1), which was raised by the respondents in their arguments at the hearing. That article provides that, except as otherwise decided unanimously by the Council on grounds of urgency, the Council is to deliberate and take decisions only on the basis of documents and drafts drawn up in the languages specified in the rules in force governing languages. In my view, the difference between the two sets of rules of procedure in this regard only confirms the view taken in the main body of this Opinion: as has already been mentioned (cf. section 14), the Council, unlike the Commission, consists of representatives of the Member States delegated by the national governments and hence it is normal that they should be able to participate in deliberations and decision-making in their own languages. I would also point out that in the judgment in Nakajima (which I shall be discussing later, in section 49), the Court held that that provision of the Council's Rules of Procedure could not be relied upon by third parties.

109 See PVC judgment, paragraph 37.

110 Only Wacker Chemie GmbH and Hoechst AG gathered from the Commission's defence that the Decision was not adopted in Dutch and Italian on 21 December 1988, as in their view it should have been: PVC judgment, paragraph 14.

111 For the text of the two provisions, see section 60 below.

112 Pursuant to the third paragraph of Article 188 and Article 168a(4) of the EEC Treaty respectively.

113 In the case of the Council, the obligation ensues from Article 5 of the Merger Treaty; in the case of the European Parliament from Article 142 of the EEC Treaty. The Economic and Social Committee is also under a duty to establish rules of procedure: see the second paragraph of Article 196 of the EEC Treaty. Under Article 9(3)(h) of the Protocol on the Statute of the European Investment Bank, the Board of Governors is to approve the Bank's Rules of Procedure.

114 Cf. the judgment in Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 14.

115 Cf. Article 5 of the Merger Treaty (Rules of Procedure of the Council) and Article 142 of the EEC Treaty (Rules of Procedure of the European Parliament).

116 The relevant treaty provisions are dispersed: thus it is clear that the Commission's Rules of Procedure must inter alia be in accordance with the requirements laid down in respect of the number of its members and their independence (Article 10 of the Merger Treaty), the principle of collegiate responsibility and the requirement as to the quorum required to be present at Commission meetings (Article 17 of the Merger Treaty), but also, for example, with the principle of collective political responsibility vis-à-vis the European Parliament (Article 144 of the EEC Treaty): cf. J. Amphoux, Article 162, deuxième alinéa — Article 16 du traité de fusion, in Le droit de la Communauté économique européenne (Commentaire Mégret), Part 9, pp. 244-245, No 1.

117 Judgment cited in footnote 38.

118 For the content of the latter provision, see footnote 107.

119 Judgment in Nakajima v Council, paragraphs 49 and 50.

120 PVC judgment, paragraph 78.

121 Only the judgments in Bemusset and Bouteiller incidentally mention the Commission's Rules of Procedure. There is no mention of them at all in the judgment in Bellardi Ricci. In the judgment in Bemusset, the Court of Justice runs over the procedure which the Commission followed in Case 94/63 in taking the contested appointment decision (namely the written procedure provided for in Article 11 of the Rules of Procedure) but only in the context of the question whether the safeguards laid down by Article 45 of the Staff Regulations of Officials of the EEC for the benefit of officials eligible for promotion has been complied with: Bemusset [1964] ECR 297, at 310. In other words, the Court mentioned the Rules of Procedure only in the context of the examination of the facts. Also in the judgment in Bouteiller, the Court refers only very incidentally to the Rules of Procedure of the Commission, without specifying the provision in question (it appears from the Opinion of Advocate General Da Cruz Vilaça that Article 26 of the Rules of Procedure was the provision concerned). What was at issue in that case was the taking into account, in the context of a promotion procedure, of a specific factor in an official's career, namely his having temporarily assumed the duties of head of a newly set up department. He had been assigned those temporary duties under Article 26 of the Rules of Procedure, which provides for the provisional replacement of a Head of Division who is prevented from acting by the senior official in the highest grade.

122 This case was concerned with an action brought by a French company to annul a Council agricultural regulation laying down a production quota for isoglucose. The European Parliament intervened in the proceedings in support of the applicant's claims of infringement of essential procedural requirements. The applicant at no time invoked any provision of the rules of procedure of any Community institution. In paragraph 36 of the judgment in Roquette Frères v Council, which is cited by the Court of First Instance, the Court of Justice examined whether the Council, in adopting the contested regulation, had consulted the Parliament in accordance with Article 43(2) of the EEC Treaty. It merely mentioned in that regard that the Council had neglected to request the application of the emergency procedure provided for by the Rules of Procedure of the Parliament (it appears from the Opinion of Advocate General Reischl that the relevant provision of the Parliament's Rules of Procedure was Article 14). Cf. the almost identical pronouncement made by the Court on the same day in Case 139/79 Maizena v Council [1980] ECR 3393, at paragraph 37. Later the Court was to refer to that passage in Roquette Frères in its judgment of 10 July 1986 in Case 149/85 Wybot v Faure [1986] ECR 2391, at paragraph 24.

123 This case was concerned with an action brought by an Italian confederation of company directors and managers for the annulment of a Council decision appointing the members of the Economic and Social Committee. At no time was it claimed that there had been an infringement of the Council's Rules of Procedure: the action was based on infringement of Article 195 of the EEC Treaty and misuse of powers by the Council. The only reference to the Council's Rules of Procedure is in paragraph 25 of the judgment, where the Court observes that Council took the decision under the procedure for items in Part A laid down in its Rules of Procedure (in this case, too, without mentioning which provision of those rules was involved; it was in fact Article 2(6)).

124 According to the Report for the Hearing, Funoc did not claim that the Commission's Rules of Procedure had been infringed, but Article 6(1) of Council Regulation (EEC) No 2950/83 of 17 October 1983 (OJ 1983 L 289, p. 1). In its opinion it followed from that provision that the decision should have been taken by the Commission itself.

125 Judgment in FUNOC, paragraph 14.

126 See in particular the judgment in Case 298/81 Colussi v Parliament [1983] ECR 1131, paragraph 10; the judgment in Case 223/82 De Bruyn v Parliament [1983] ECR 2879, paragraph 18; the judgment in Case 260/80 Andersen v Council [1984] ECR 177, paragraphs 5 and 6; the judgment in Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraphs 9, 11 and 12 (Rules of Procedure of the Court of Auditors); the judgment in Case 307/85 Gavanas v Economic and Social Committee and Social [1987] ECR 2435, paragraphs 17 to 21 (Rules of Procedure of the Economic and Social Committee); the judgment in Case 1/87 Picciolo v Commission [1988] ECR 711, paragraphs 36 to 40 (internal rules of the Publications Office). For staff cases in which the rules of procedure of an institution were discussed more incidentally, see the judgment in Case 3/84 Patrinos v Economic and Social Committee [1985] ECR 1421, paragraphs 7 and 21, and the judgment in Joined Cases 87/77 and 130/77, 22/83 and 10/84 Salerno v Commission and Council [1985] ECR 2523, paragraphs 7 and 50 (internal regulation of the European Association for Cooperation).

127 There is also a considerable amount of variety within this group of judgments. Where the judgment concerns a Member State which, as a member of the institution in question, pleads an infringement of the rules of procedure, the Court has already expressly held that the institution was bound by its rules of procedure and could not deviate from them: see the judgment in Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 48; see also the judgment in Case 131/86 United Kingdom v Council, as discussed above (in section 10 et seq.). In cases where the Member State was not a member of the institution concerned, the Court shows signs of reluctance: thus it repeatedly refused to review, at Member States' request, a resolution of the European Parliament in the light of that institution's rules of procedure on the ground that the resolution'related to the internal organization of its work and could not, therefore, be the subject of judicial review': judgment in Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821, paragraphs 16 and 17, and judgment in Luxembourg v Parliament, cited in footnote 17, at paragraphs 43 and 44. Similar reluctance is to be seen in the judgment in Case 278/84 Germany v Commission [1987] ECR 1, paragraphs 12 and 13.

128 These are the orders in Case 78/85 Group of the European Right v Parliament [1986] ECR 1753 and in Case C-68/90 Yvan Blot and Front National v Parliament [1990] ECR I-2101. In both cases, a member of the Group of the European Right of the European Parliament brought an action for the annulment of internal measures adopted by the Parliament. They claimed inter alia that the Parliament's Rules of Procedure had been infringed. In both cases, the Court of Justice decided that the actions were inadmissible on the basis of its judgment in Case 294/83 Les Verts v Parliament [1986] ECR 1339, according to which an action for a declaration of nullity will lie only against acts of the European Parliament which are intended to produce legal effects vis-à-vis third parties. Neither of the contested acts satisfied that requirement. However, the Court did not discuss whether or not the provisions of the Parliament's Rules of Procedure which were invoked by the parties could be pleaded.

129 See paragraph 14 in fine of the judgment in VBVB and VBBB v Commission, cited in footnote 48, and paragraph 14 in fine of the judgment in Funoc v Commission, as set out in section 52; it appears therefrom that the Court considers it possible for an applicant to provide proof that the rules on delegation or on the grant of the authority to sign were infringed.

130 PVC judgment, paragraph 75.

131 PVC judgment, paragraph 76.

132 See paragraphs 72 and 75 of the PVC judgment.

133 PVC judgment, paragraph 74 in fine and paragraph 75.

134 PVC judgment, paragraph 75.

135 Section II of Chapter I is concerned with the preparation and implementation of acts of the Commission. There is a further Chapter II, Administration, relating to the organization of the Commission's administrative departments, and a Chapter III, Deputizing and delegation of powers, which contains Article 27, to which reference has been repeatedly made in this Opinion.

136 See paragraph 74 of the PVC judgment.

137 I would observe in passing that nowhere in the Rules of Procedure is it expressly required that, where a decision has to be drawn up in several authentic languages, the Commission must adopt it in all those languages at the meeting, and even less that it must be signed by all the Members of the Commission who took part in the decision-making. Neither does Article 12 of the Rules of Procedure lay down a strict time-limit for the authentication of decisions in the authentic language or languages. On the contrary, it appears to me to follow from the provision stipulating that such texts must be appended to the minutes approved pursuant to Article 10 —which, contrary to what the Court of First Instance states in paragraph 74 of the PVC judgment, do not have to be approved at the next meeting but at a subsequent meeting — that authentication pursuant to Article 12 may take place within a reasonable time of the adoption of the decision.

138 If, for example, the Commission were to adopt a decision in a sphere which belonged exclusively to the jurisdiction of the Member States, such decision would, according to the Court of Justice, lack all basis in the Community legal order: judgment in Joined Cases 6/69 and 11/69 Commission v France [1969] ECR 523, paragraph 13. It is self-evident that this position would not be altered by authentication.

139 Unlike in the case of regulations, the second paragraph of Article 191 of the EEC Treaty does not prescribe that decisions must be published in the Official Journal. Consequently, under the EEC Treaty the entry into effect of a decision is not dependent on such publication: cf. the judgment in Netherlands and Leeuwarder Papierwarenfabriek v Commission, cited in footnote 47, at paragraph 28. In the case of a number of Commission decisions relating to Articles 85 and 86 of the EEC Treaty, publication is required under Article 21 of Regulation No 17; however, that publication requirement does not apply to decisions in which fines are imposed under Article 15 of Regulation No 17 on account of infringement of Article 85 or Article 86. Nevertheless, according to the Court, neither the letter nor the spirit of Article 21 of Regulation No 17 prevent the Commission from publishing provided that this does not amount to divulging the business secrets of the undertakings in question; such publication may even contribute to ensuring the observance of the rules of the Treaty on competition: judgment in ACF Chemiefarma v Commission, cited in footnote 51, at paragraphs 102 and 104. Neither may non-publication be contested by the addressees of a decision, even though the Court considers that it is desirable that a decision ..., affecting the rights and interests of nationals of several Member States, should be brought to the attention of the public, as has been the practice in similar cases: judgment in Joined Cases 73 and 74/63 Handelsvereniging Rotterdam v Minister van Landbouw [1964] ECR 1, more specifically at 24.

140 Judgment in Europemballage and Continental Can v Commission, cited in footnote 75, at paragraph 10. In that case, the Court held that the decision had been properly notified because it actually reached Continental (by means of letters sent through the post). See, for more recent confirmation of this case-law, in particular the judgment in Cockerill-Sambre v Commission, cited in footnote 13, at paragraph 10, and the judgment in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 6; see also the judgment of the Court of First Instance in Case T-12/90 Bayer v Commission [1991] ECR II-219, paragraph 18.

141 Judgment in ALMA v High Authority, cited in footnote 15, at 99.

142 Consequently, the Court also held in the Continental Can judgment that Continental Can could not make use of its own refusal to take cognizance of the communication made to it in order to render the communication ineffective: judgment in Europemballage and Continental Can v Commission, cited in footnote 75_ at paragraph 10.

143 Judgments cited in footnote 75, ICI v Commission, at paragraphs 39 and 40, and Geigy v Commission, at paragraph 18. As far as both ICI and Geigy were concerned, the Court held that they had had full knowledge of the text of the decision and had exercised their right to institute proceedings within the prescribed period. The Court observed that in those circumstances they had no interest in pleading irregularities concerning notification. The plea was therefore declared inadmissible: judgment in ICI v Commission, paragraphs 42, 43 and 44; judgment in Geigy v Commission, paragraph 19.

144 Judgment in Suiker Unie v Commission, cited in footnote 54, at paragraph 114. For the text of this provision, see footnote 64.

145 Judgment in Suiker Unie v Commission, paragraph 115.

146 Judgment in Case 98/78 Racke v Hauptzollamt Maim [1979] ECR 69, paragraph 15 in fine. See also in that connection H.-W. Daig and G. Schmidt, Artikel 191, in Von der Groeben-Thiesing-Ehlermann, Kommentar zum EWG-Vertrag, IV, p. 4991, No 20; E. Grabitz, Artikel 191, in Grabitz Kommentar zum EWG-Vertrag, p. 32, No 8.

147 Judgment in Consten and Grundig v Commission, cited in footnote 49, at 337.

148 Ibid. Consten alleged infringement of essential procedural requirements on the ground that the text published in the Official Journal was described as a directive.

149 For a survey of the competent authorities designated by the Member States, see J.-V. Louis, Article 192, in Le droit de la Communauté économique européenne (Commentaire Mégret), Part 10, pp. 516 and 517, footnote 5.

150 E. Grabitz, Artikel 192, in Grabitz Kommentar zum EWG-Vertrag, p. 36, No 11; H. P. Ipsen, Europäisches Gemeinschaftsrecht, Tübingen, Mohr, 1972, p. 535, No 13.

151 See the judgment in Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, in particular at paragraphs 13 and 17.

152 Judgment in Consorzio Cooperative d'Abruzzo v Commission, paragraph 12; judgment in Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 10; see the judgment in Joined Cases 7/56 and 3 to 7/57 Algera v Common Assembly [1957 and 1958] ECR 39, at 61, as long ago as 12 July 1957; judgment in Case 14/61 Hoogovens v High Authority [1962] ECR 253, at 272; judgment in Case 111/63 Lemmerz-Werke [1965] ECR 677, at 690 and 691.

153 Cf. the order in BAT and Reynolds v Commission, in which one of the applicants requested the Court to call upon the Commission to submit to it all the documents in the Commission's possession relating to a particular competition file in order to ascertain whether its decision was influenced by factors other than those indicated in the statement of reasons. The President of the Court refused this request, on the ground that this would constitute an exceptional measure of inquiry, which would presuppose that the circumstances surrounding the decision in question gave rise to serious doubts as to the real reasons and, in particular, to suspicions that those reasons were extraneous to the objectives of Community law and hence amounted to a misuse of powers: order in Joined Cases 142 and 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11 (my emphasis).

154 Under the third paragraph of Article 16 of the Commission's Rules of Procedure, it is the duty of the Executive Secretary to take the necessary steps to ensure official notification of acts of the Commission and their publication in the Official Journal of the European Communities.

155 See W. Waelbroeck, Article 173, in Le droit de la Communauté économique européenne (Commentaire Mégret), Part X, p. 128, No 34; see also R. Joliet, Le droit institutionnel des Communautés européennes. Le contentieux, Liège, Faculté de Droit, d'Economie et de Sciences sociales de Liège, 1981, p. 99 et seq. The latter distinguishes, on the basis of the Court's case-law, between three groups of essential procedural requirements within the meaning of Article 173 of the EEC Treaty which may result in a measure's being declared void: (i) rules relating to the process whereby Community measures are prepared (for example, the obligation for an institution to consult another institution or body or the obligation for the Commission, under Article 19(1) of Regulation No 17, to give undertakings an opportunity of being heard on the matters to which it has taken objection: see as regards the latter point the very recent judgment of 31 March 1993 in Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C/129/85 Ahlström and Others v Commission [1993] ECR I-1307); (ii) rules relating to the decisionmaking procedure (in particular rules relating to quorums, majorities and so on); and (iii) rules relating to the external form in which the measure is drawn up (in particular with regard to the language in which it is drawn up and the statement of reasons). The only instance in which the Court has so far categorized a provision of rules of procedure of a Community institution as an essential procedural requirement is the judgment in Case 68/86 United Kingdom v Council, cited in footnote 126. In that case, the Court held that the Council had infringed Article 6(1) of its Rules of Procedure (under which recourse to the written procedure is subject to the agreement of all the Members of the Council) (see paragraphs 46 to 49 of the judgment). That provision is, according to the Court, an essential procedural requirement (paragraph 51 of the judgment) and hence falls within the second category mentioned by R. Joliet. See also the references to that case in the judgment in Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 3, and in the orders in Case 160/88 R Fédération européenne de la santé animale and Others v Council [1988] ECR 4121, paragraph 12, in Case 34/88 Cevap and Others v Council [1988] ECR 6265, paragraph 6, in Case 160/88 Fédération européenne de la santé animale and Others v Council [1988] ECR 6399, paragraph 4, and in Case 138/88 Flourez v Commission [19881 ECR 6393, paragraph 4.

156 Judgment in IAZ v Commission, cited in footnote 43, at paragraph 16. This is also borne out by the Court's case-law relating to irregularities in notification pursuant to Article 191 of the EEC Treaty: cf. the judgments in Ceigy v Commission and ICI v Commission cited in footnote 62.

157 See as long ago as the judgment in Consten and Grundig, cited in footnote 49, at 347; judgment in IAZ v Commission, paragraph 15.

158 In my opinion, the authentication procedure provided for in Articles 7 and 9 of the Council's Rules of Procedure must be understood in the same way. It consists of the fact that (i) minutes of each meeting are to be drawn up and, when approved, are to be signed by the President and by the Secretary-General; (ii) the texts of acts adopted by the Council are to be signed by the President and by the Secretary-General; and (iii) the relevant texts are to be appended to the minutes.

159 Namely an infringement of this Treaty or of any rule of law relating to its application within the meaning of that provision. It appears from the judgment in IAZ v Commission, cited in footnote 43, at paragraph 15 in fine, that a procedural defect (even one not relating to an essential procedural requirement) committed by the Commission can give rise to an infringement of the principles of sound administration vitiating the legality of a decision.

160 See paragraph 28 of the PVC judgment and the declaration of the Commission's Secretary-General referred to therein.

161 PVC judgment, paragraph 68. The Court of First Instance refers, as regards the concept of the non-existence of Community measures, to the judgments of the Court of Justice in Joined Cases 1 and 14/57 Société des Usines à Tubes de la Sarrev High Authority [1957 and 1958] ECR 105; Joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73 Schots- Kortner and Others v Council, Commission and Parliament [1974] ECR 177; Case 15/85 Consorzio Cooperative d'Abruzzo v Commission, cited in footnote 150; Case 226/87 Commission v Greece [1988] ECR 3611; and the judgment of the Court of First Instance in Case T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-407.

162 PVC judgment, paragraph 68 in fine.

163 PVC judgment, paragraph 93.

164 PVC judgment, paragraph 94.

165 PVC judgment, paragraph 95, my emphasis.

166 Judgment in Algera v Common Assembly, cited in footnote 151, at 61.

167 Ibid., at 60 and 61.

168 Judgment in Consorzio Cooperative d'Abruzzo v Commission, paragraph 10.

169 Judgment in Case 226/87 Commission v Greece cited in footnote 160, at paragraph 16; judgment in Case C-74/91 Commission v Germany [1992] ECR I-5437, at paragraph 11.

170 Judgment cited in footnote 160.

171 The only indication of the reasons supporting the view taken by the High Authority in the relevant letter read as follows: In the present circumstances the High Authority has no alternative but to reply to your investment statement with an adverse opinion within the meaning of the fourth paragraph of Article 54 of the Treaty.

172 Judgment in Société des Usines à Tubes de la Sarre, at 112 and 113.

173 Judgment cited in footnote 160.

174 Judgments in Case 20/71 Sabbatini v European Parliament [1972] ECR 345 and in Case 32/71 Bauduin v Commission [1972] ECR 363. In those judgments the Court held that Article 4(3) of Annex VII to the Staff Regulations created an arbitrary difference of treatment between officials and that therefore the decisions taken in respect of the officials concerned withdrawing their expatriation allowance had to be annulled.

175 Judgment in Schots-Kortner, paragraph 33.

176 Namely Article 22(3) of Council Regulation (EEC) No 355/77 of 15 February 1977 on common measures to improve the conditions under which agricultural products are processed and marketed, OJ 1977 L 51, p. 1.

177 Consorzio judgment, paragraph 11.

178 Cited in footnote 160.

179 Commission Decision 85/276/EEC of 24 April 1985 concerning the insurance in Greece of public property and loans granted by Greek State-owned banks, OJ 1985 L 152, p. 25.

180 Judgment in Commission v Greece cited in footnote 160, at paragraph 16.

181 For the reference, see footnote 160.

182 Judgment in Valverde Mordt, paragraph 84.

183 Judgment in Valverde Mordt, paragraph 85.

184 At page 197.

185 Cf. paragraph 9 of the PVC judgment, from which it appears that the applicants before the Court of First Instance primarily sought the annulment of the decision adopted against them and, in the alternative, the cancellation or the reduction of the fine imposed upon them by Article 3 of the Decision. In paragraph 30 of its judgment, the Court of First Instance summarizes the pleas put forward at first instance as follows: the applicants have put forward essentially three sets of pleas, namely breach of fundamental rights, infringement of essential procedural requirements and inadequate or incorrect appraisal and legal classification of the facts by the Commission with respect to Article 85(1) of the Treaty.

186 See paragraph 30 of the PVC judgment.

187 Sec paragraph 37 of the PVC judgment.

188 Judgment in Dow Chemical Ibérica v Commission, cited in footnote 95, at paragraph 59. In his Opinion relating to that case, Advocate General Mischo rightly observes that the addressees could not in any circumstances fail to understand that the decisions were decisions of the Commission, particularly since they were certified by the Commission's seal and by the signature of its Secretary-General and were presented to the applicants by Commission officials duly authorized to implement the decisions: [1989] ECR 2875, section 163 at 2903.

189 In my view, those formalities are intended to authenticate that the notified version corresponds to the original version of the decision which was authenticated in accordance with Article 12 of the Commission's Rules of Procedure by the President and Executive Secretary of the Commission. As argued above (in section 66), the latter authentication is intended to certify that the original version of the decision corresponds to the decision adopted by the full Commission at its meeting.

190 See paragraph 63 of the PVC judgment.

191 Cf. the judgments in Joined Cases 53 and 54/63 Lemmerz [1963] ECR 239, at 248, and in Joined Cases 23, 24 and 52/63 Henricot [1963] ECR 217, at 224.