Avis juridique important

61993J0005

European Court reports 1999 Page I-04695

Summary

1 Appeals - Appeal against an order dismissing an application for revision - Interpretation of the phrase `fact which is of such a nature as to be a decisive factor' in Article 41 of the Statute of the Court of Justice - Point of law - Admissible

2 Actions for annulment - Jurisdiction of the Community judicature - Unlimited jurisdiction - Issue of directions to an institution - Not permissible

3 Procedure - Revision of a judgment - Conditions governing the admissibility of the application - Fact relied on must pre-date delivery of the judgment under appeal - Fact relied on must have been unknown to the party seeking revision

Parties

In Case C-5/93 P,

DSM NV, whose registered office is in Heerlen, Netherlands, represented by I.G.F. Cath, of The Hague Bar, with an address for service in Luxembourg at the Chambers of L. Dupong, 14a Rue des Bains,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) of 4 November 1992 in Case T-8/89 REV DSM v Commission [1992] ECR II-2399, seeking to have that judgment set aside, the other party to the proceedings being:

Commission of the European Communities, represented by B.J. Drijber, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant at first instance,

(Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G. Hirsch, G.F. Mancini (Rapporteur), J.L. Murray and H. Ragnemalm, Judges,

Advocate General: G. Cosmas,

Registrars: H. von Holstein, Deputy Registrar, and D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 12 March 1997,

after hearing the Opinion of the Advocate General at the sitting on 15 July 1997,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

2. A description of the aspects of the environment likely to be significantly affected by the project.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Furthermore, the effect of the amendments and additions pointed out by the applicant for revision was sufficiently clarified at the hearing of 10 December 1991 in the PVC cases in which the agents of the Commission stated that the procedure adopted in those cases corresponded to regular practice. The applicant for revision was at that hearing 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 (which it had put forward in its application for revision). It is true that the applicant for revision still did not have, unlike the applicants in Cases T-9/89 to T-15/89 (see the judgments of 10 March 1992 in Case T-9/89 Hüls v Commission, paragraphs 382 to 385; Case T-10/89 Hoechst v Commission, paragraphs 372 to 375; Case T-11/89 Shell v Commission, paragraphs 372 to 374; Case T-12/89 Solvay v Commission, paragraphs 345 to 347; Case T-13/89 ICI v Commission, paragraphs 399 to 401; Case T-14/89 Montedipe v Commission, paragraphs 389 to 391; and Case T-15/89 Linz v Commission, paragraphs 393 to 395 [1992] ECR II-499), the legal evaluation of the PVC decision which the Court (of First Instance) rendered in its judgment of 27 February 1992. That circumstances does not, however, alter the fact that the applicant for revision was aware of the facts in question before the judgment was delivered (see the judgment of the Court of Justice in Case C-403/85 REV Ferrandi v Commission [1991] ECR I-1215, paragraph 13).

In paragraph 19, the Court of First Instance concluded that the various amendments and additions mentioned by DSM and their significance were sufficiently obvious for it to gain knowledge, upon reading the text of the Polypropylene Decision, or at any rate at the hearing held in the PVC cases on 10 December 1991, of the facts mentioned in the application for revision. Consequently, those facts could in no event constitute facts unknown to DSM before delivery of the judgment in DSM v Commission, cited above, within the meaning of the first paragraph of Article 41 of the EC Statute of the Court of Justice and, consequently, they were not capable of giving rise to revision of that judgment.

The Court of First Instance added, in paragraph 20, that the PVC judgment as such as well as the letter sent by the DSM to the Commission on 5 May 1992 and the fact that it remained unanswered were not material since neither of those events brought to DSM's attention facts which were previously unknown to it.

The Court of First Instance therefore held, in paragraph 21:

It follows from all the foregoing that the facts put forward by the applicant for revision in its application cannot constitute, either on their own or in combination with one another, a new fact within the meaning of Article 41 of the Statute of the Court and, consequently, that the application for revision must be dismissed as inadmissible.

The appeal

In its appeal, DSM claims that the Court of Justice should:

-declare that its appeal was brought in good time;

-annul the contested order;

-annul the DSM v Commission judgment, cited above;

-declare non-existent or at least annul the Polypropylene Decision addressed to it and annul or at least reduce the fine imposed on it by the Commission;

-order the Commission to repay without delay the fine paid on 19 February 1992 on the basis of that non-existent, or at least void, decision and the judgment in DSM v Commission, cited above, together with interest and costs, as detailed in DSM's letter to the Commission;

-in the alternative, annul the contested order and refer the case back to the Court of First Instance for a hearing, in the light of the judgment of the Court of Justice, of DSM's application for revision, in particular by ordering measures of inquiry as requested by DSM or as the Court of Justice considers appropriate, or at any rate take such measures as the Court of Justice, or the Court of First Instance if the Court of Justice so decides, considers appropriate;

-order the Commission to pay the costs of these proceedings, including the costs incurred or to be incurred in these proceedings, as well as the costs of the proceedings which led to the DSM v Commission judgment, cited above.

The Commission contends that the Court should:

-principally, declare the appeal, or at least the fifth point of DSM's claims, inadmissible;

-in the alternative, dismiss the appeal;

-in any event, order DSM to pay the costs of the proceedings.

In support of its appeal DSM puts forward the following pleas in law: first, infringement of Community law through misinterpretation of Article 41 of the EC Statute of the Court of Justice; second, breach of the duty to state reasons, in that examination of the facts within the meaning of Article 41 of the EC Statute of the Court of Justice was limited to the facts mentioned in paragraphs 6 and 15 of the contested order; third, breach of the duty to state reasons, in that the Court of First Instance described as `new facts' the amendments and additions made to the text of the notified Polypropylene Decision compared with that adopted by the Commission; fourth, breach of the duty to state reasons, in that the Court of First Instance assumed that it was `known' to DSM, owing to what was stated at the hearing in the PVC cases, that amendments and additions were subsequently made to the text of the Polypropylene Decision; fifth, breach of the duty to state reasons, in that the Court of First Instance described the amendments and additions mentioned by DSM as `sufficiently manifest' as well as legally relevant `facts'; sixth, breach of the duty to state reasons, in that the Court of First Instance considered that the PVC judgment as such as well as the letter sent by DSM to the Commission and the fact that it remained unanswered were not material; seventh, breach of the duty to state reasons, in that the Court of First Instance did not examine the substance of the application for revision; eighth, breach of the principle of equal treatment, in that the Court of First Instance, in contrast to the attitude it had taken in the PVC cases, did not examine the substance of the application for revision; ninth, breach of the principle of equal treatment, in that the Court of First Instance placed the undertakings concerned in the polypropylene proceedings in different positions, depending on the date of the judgment in question; lastly, infringement of Community law, in that the Court of First Instance did not consider any plea alleging the non-existence of an act of a Community institution to be a matter of public policy.

By decision of the President of the Court of Justice of 28 July 1993, in the absence of any objection from the parties, proceedings were stayed until 15 September 1994 to enable the appropriate conclusions to be drawn from the judgment of 15 June 1994 in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555.

The Commission considers, principally, that the appeal is inadmissible. First, the issue of whether a fact or a new fact has come to light constitutes a question of fact, so that the appeal is not raising points of law as prescribed by Article 51 of the EC Statute of the Court of Justice. Secondly, if an application for revision must be held inadmissible in the absence of any new fact, a fortiori the same conclusion applies if DSM states that it has not even been able to discover a fact.

On the first point, it must be observed at the outset that, if the Commission's argument were accepted, the consequence would be to preclude the possibility of lodging an appeal against decisions in which the Court of First Instance dismissed applications for revision as inadmissible. Such a result would manifestly run counter to the first paragraph of Article 49 of the EC Statute of the Court of Justice, pursuant to which an appeal may be brought before the Court of Justice against final decisions of the Court of first Instance.

Secondly, and in any event, the interpretation of the phrase `fact which is of such a nature as to be a decisive factor, and which, when the judgment was given was unknown to the Court and to the party claiming the revision' in the first paragraph of Article 41 of the EC Statute of the Court of Justice is a point of law, which may be examined in appeal proceedings.

Lastly, and subject to individual examination of the various pleas in law relied on by DSM, some of those pleas are also likely to relate to other points of law concerning breach of procedure before the Court of First Instance or infringement of Community law, as referred to in the first paragraph of Article 51 of the EC Statute of the Court of Justice, which may be the subject of an appeal in accordance with that provision.

It follows that the plea of inadmissibility raised by the Commission must be dismissed, inasmuch as it relates to the appeal as a whole.

In the alternative, the Commission contends that, in any event, DSM's request that the Court of Justice order the Commission to repay the fine is inadmissible, since neither the Court of Justice nor the Court of First Instance may make such an order under Article 173 of the EC Treaty (now, after amendment, Article 230 EC).

In that connection, it must be pointed out that DSM's request presupposes that the Court will uphold its appeal, annul the contested order, examine the admissibility of the application for revision of the judgment in DSM v Commission, cited above, hold it admissible, proceed to examine the substance of that application, grant it and go on to examine the application for annulment made at first instance. In that context, pursuant to Article 17 of Regulation No 17, the Court has unlimited jurisdiction within the meaning of Article 172 of the EC Treaty (now Article 229 EC).

It is settled case-law that, when exercising judicial review of legality under Article 173 of the Treaty, the Community judicature has no jurisdiction to issue directions (see, in particular, the order in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] ECR I-3709, paragraph 24). The same applies when the Community judicature has unlimited jurisdiction in accordance with Article 172 of the Treaty.

The appeal is therefore inadmissible in so far as it seeks an order from the Court directing the Commission to repay the fine paid by DSM.

Substance

First and second pleas in law: breach of Community law through misinterpretation of Article 41 of the EC Statute of the Court of Justice and breach of the duty to state reasons, in that examination of the facts within the meaning of Article 41 of the EC Statute of the Court of Justice was limited to the facts mentioned in paragraphs 6 and 15 of the contested order

By its first plea, DSM maintains that paragraphs 14 and 15 of the contested order are based on a misinterpretation of Article 41 of the EC Statute of the Court of Justice, which is also applicable to the procedure for revision before the Court of First Instance pursuant to Article 46 of that Statute.

This plea has three limbs. First, the condition that facts giving entitlement to revision must have existed prior to the judgment, mentioned in paragraph 14 of the contested order, is not laid down in Article 41 of the EC Statute of the Court of Justice, which sets out solely the condition that, when the judgment was given, the fact relied on must have been unknown to the Court and to the party claiming revision. Secondly, the Court of First Instance wrongly restricted its examination to the `unknown fact requirement', without examining the precondition of discovery of a new fact. Thirdly, it has not been established whether the facts, in the sense of Article 41, have already been discovered, in other words that they are available to the Court and to the appellant in the form of documentation and information. DSM points out in this connection that the request which it made to the Commission on 5 May 1992 was specifically aimed at obtaining that documentation and that its request, in the procedure for revision, that the Court of First Instance order measures of inquiry was made in that same context. In failing to examine that matter, the Court of First Instance misinterpreted Article 41 of the EC Statute of the Court of Justice.

By its second plea, DSM claims that the Court of First Instance infringed Community law, and in particular the duty to state reasons, by restricting its examination to the `facts' mentioned in paragraphs 6 and 15 of the contested order, relating to the failure on the part of the College of Members of the Commission to deliberate on the text of the Polypropylene Decision as notified, in particular the Dutch version, and to the other defects found in the PVC judgment, and by disregarding the fact that the application for revision included various new `facts' which the measures of inquiry sought would determine.

With regard to the first limb of the first plea, it need merely be pointed out that although, in paragraph 14 of the contested order, the Court of First Instance mentioned the condition that the facts giving rise to entitlement to revision must have existed prior to the judgment, it did not draw any consequences from that point and did not rely on that condition when dismissing DSM's application for revision. That complaint is therefore of no consequence and need not be examined by the Court.

As for the second limb of the first plea, it is clear from the actual wording of Article 41 of the EC Statute of the Court of Justice that, in order for an application for revision to be admissible, the fact relied on must have been unknown to the party claiming revision when the judgment was given. The Court of First Instance was therefore perfectly correct in holding that since that condition was not satisfied there was no need to ascertain whether the facts relied on were new.

Lastly, with regard to the third limb of the first plea and the second plea, which it is appropriate to examine together, it must be borne in mind that, pursuant to the first paragraph of Article 41 of the EC Statute of the Court of Justice, an application for revision must be based on the discovery of a new fact or facts. Under the second paragraph of Article 41, it is only if the Court finds that a new fact exists, recognises that it is of such a character as to lay the case open for revision and declares the application admissible on that ground that it can examine the substance of the case.

It follows that, if and as long as no new fact has been found, the revision procedure cannot be used to prompt the court hearing the application to order new measures of inquiry. Moreover, in the present case, DSM could have requested during the main proceedings the measures of inquiry that it requested in the revision procedure. It must therefore be held that the Court of First Instance properly applied Article 41 of the EC Statute of the Court of Justice when it refused to order measures of inquiry for discovering facts the existence of which had not been established by DSM in its application, and that it rightly confined its examination to the facts that DSM had set out in its application for revision.

The first and second pleas in law must therefore be dismissed.

The third plea in law: breach of the duty to state reasons, in that the Court of First Instance described as `new facts' the amendments and additions made to the text of the notified Polypropylene Decision compared with that adopted by the Commission

DSM states that in its application for revision it gave a detailed account of possible amendments to the text of the Polypropylene Decision, based on differences in the typeface used in the notified copy. It did not maintain that those purported amendments and additions constituted a fact which ought to be described as particularly serious and manifest within the meaning of the PVC judgment, since the existence of that new fact could only be revealed if the authentic text was to hand, having been made available by the Commission. In the absence of such an opportunity to ascertain the facts, the statement by the Court of First Instance to the effect that the typographical differences in question were known to DSM once the decision had been notified is irrelevant. The same applies to the other points to which DSM drew attention, such as the discontinuous page numbering and the words `Draft Commission Decision of 23 May 1986' on the cover page as well as the time that is supposed to have elapsed between the adoption of the Polypropylene Decision and its notification. These are also suppositions rather than established facts; they could only become established facts if the Commission produced the documentation requested. It follows that the assessment by the Court of First Instance in that connection is factually inaccurate, since facts were involved of which, as yet, neither the Court of First Instance nor DSM have knowledge.

Inasmuch as that plea refers to the examination by the Court of First Instance of the typographical differences in the text of the Polypropylene Decision notified on 30 May 1986, it need merely be pointed out that those facts were relied on by DSM in its application and that it was therefore incumbent on the Court of First Instance to reach a finding on them, which it did.

In so far as it is alleged that the Court of First Instance examined no facts other than those established in the application for revision, this plea overlaps with the third limb of the first plea and the second plea, and must be dismissed for the same reasons.

The third plea in law must therefore be dismissed.

Fourth plea in law: breach of the duty to state reasons, in that the Court of First Instance assumed that it was known to DSM, owing to what was stated at the hearing in the PVC cases, that amendments and additions were subsequently made to the text of the Polypropylene Decision

In the first limb of this plea, DSM claims that the statement by the Commission's Agent at the hearing in the PVC cases, according to which Article 12 of the Rules of Procedure of that institution was not applied, concerned another case and did not supply an answer to the question whether amendments might have been made to the Polypropylene Decision. The assessment of the Court of First Instance, at paragraph 18 of the contested order, to the effect that DSM was aware of the facts on which it was relying before judgment was delivered, in the context of the PVC hearings, is therefore legally irrelevant and factually inaccurate.

51 In the second limb, DSM maintains that it was not required to request that the oral procedure be reopened since, pursuant to Article 62 of its Rules of Procedure, the Court of First Instance may, of its own motion, order such reopening. According to DSM, the Court of First Instance was, in this case, even obliged to carry out such an examination. Furthermore, a request for the oral procedure to be reopened would have had no practical effect, since on 10 December 1991, the date of the hearing in the PVC cases, the judgment, which was to be delivered on 17 December 1991, would undeniably have already been in its final form.

52 As regards the first limb of the fourth plea, it should be borne in mind that, pursuant to Article 168A of the EC Treaty (now Article 225 EC) and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal may rely only on grounds relating to the infringement, by the Court of First Instance, of rules of law, to the exclusion of any appraisal of the facts. As the Commission rightly pointed out, by this limb DSM is criticising a finding of fact made by the Court of First Instance, so that it is inadmissible in an appeal.

53 In so far as the second limb of this plea complains that the Court of First Instance did not reopen the procedure of its own motion, it does not relate to the contested order but to the judgment in DSM v Commission, cited above, which is not the subject of this appeal.

54 The fourth plea in law must therefore also be dismissed.

Fifth plea in law: breach of the duty to state reasons, in that the Court of First Instance described the amendments and additions mentioned by DSM as `sufficiently manifest' as well as legally relevant `facts'

55 Referring to paragraph 19 of the contested order, DSM considers that the Court of First Instance was in breach of the duty to state reasons, in that it described the amendments and additions mentioned by DSM as `sufficiently manifest' as well as legally relevant `facts'. The description `sufficiently manifest' given to the supposed facts is legally irrelevant and factually inaccurate.

56 In so far as this plea challenges the assessment made by the Court of First Instance as to the `sufficiently manifest' nature of the amendments and additions mentioned by DSM, it concerns points of law which cannot therefore be examined in an appeal.

57 Inasmuch as it complains that the Court of First Instance considered those amendments and additions to be relevant, it need merely be pointed out that they had been relied on by DSM in its application, so that it was incumbent on the Court of First Instance to examine them.

58 The fifth plea in law must therefore be dismissed.

Sixth plea in law: breach of the duty to state reasons, in that the Court of First Instance considered that the PVC judgment as such as well as the letter sent by DSM to the Commission and the fact that it remained unanswered were not material

59 DSM maintains that the Court of First Instance was in breach of its duty to state reasons, in that, at paragraph 20 of the contested order, it considered that the PVC judgment as such as well as the letter sent by DSM to the Commission and the fact that it remained unanswered were not material. The purpose of the letter sent to the Commission was primarily to obtain the documentation which would have enabled it to acquire knowledge of the facts, which were as yet unknown to DSM, and it was therefore material. Parties are entitled to apply for revision of a judgment if they have reasons for believing that new facts exist that are of such a nature as to be a decisive factor for the outcome of the proceedings.

60 On this point, it must be noted, first, that the assessment in paragraph 20 of the contested order, to the effect that the PVC judgment, as well as the letter sent by DSM to the Commission on 5 May 1992 and the fact that it remained unanswered, did not bring to DSM's attention facts which were previously unknown to it, is a finding of fact which the Court of Justice has no jurisdiction to review in an appeal.

61 Secondly, Article 41 of the EC Statute of the Court of Justice makes it clear that an application for revision must be based on the discovery of a fact. Therefore, the Court of First Instance was right in considering that mere suppositions which should have been verified in the context of measures of inquiry were not material in the context of an application for revision.

62 The sixth plea in law must therefore be dismissed.

Seventh and eighth pleas in law: breach of the duty to state reasons and of the principle of equal treatment, in that the Court of First Instance, in contrast to the attitude it had taken in the PVC cases, did not examine the substance of the application for revision

63 By its seventh plea, DSM claims that the Court of First Instance was in breach of its duty to state reasons and that, contrary to its own case-law on the matter, it did not examine the substance of the application for revision.

64 By its eighth plea, DSM maintains that the Court of First Instance was in breach of the principle of equal treatment, in that, unlike in the PVC cases, it did not proceed to examine the substance of the application for revision on the basis of the information supplied by DSM. The measures of inquiry ordered by the Court of First Instance in the PVC cases are no different from DSM's request for information.

65 Those pleas, which it is appropriate to examine together, are based on a misconception of the revision procedure. In its second paragraph, Article 41 of the EC Statute of the Court of Justice provides expressly that the revision is to be opened by a judgment of the Court expressly recording the existence of a new fact, recognising that it is of such a character as to lay the case open to revision and declaring the application admissible on this ground. Article 127(2) of the Rules of Procedure of the Court of First Instance provides: `Without prejudice to its decision on the substance, the Court of First Instance shall ..., having regard to the written observations of the parties, give its decision on the admissibility of the application.' Under Article 127(3), only if the Court of First Instance finds the application admissible does it proceed to consider its substance.

66 That splitting of the procedure into two phases, the first concerning admissibility and the second the substance, can be explained by the strictness of the conditions governing revision, which may itself be understood in consideration of the fact that revision defeats the force of res judicata (see Case 116/78 Rev Bellintani and Others v Commission [1980] ECR 23, paragraph 3).

67 The Court of First Instance cannot therefore be criticised for having ruled only on the admissibility of the application and no argument can be drawn from the manner in which it proceeded in the PVC cases.

68 The seventh and eighth pleas in law must in consequence be dismissed.

Ninth plea in law: breach of the principle of equal treatment, in that the Court of First Instance placed the undertakings concerned in the polypropylene proceedings in different positions, depending on the date of the judgment in question

69 DSM claims that the Court of First Instance was in breach of the principle of equal treatment, in that it placed the undertakings concerned in the polypropylene proceedings in different positions, depending on the date of the judgment in question. In three cases, the judgment was delivered on 24 October 1991, in four cases on 17 December 1991, and in seven cases on 10 March 1992. The latter undertakings were thus able to introduce an appeal on the basis of grounds drawn from the PVC judgment. Since the cases in question had been joined, that difference in treatment acquires even more significance from the fact that the parties were unable to exert any influence on the dates on which the Court of First Instance delivered judgment. Article 18 of the contested order recognised the difference in position, but attached no consequences to it, on the ground that DSM was already aware of the facts in question before the judgment was delivered. DSM considers that that assessment is not only legally immaterial and factually inaccurate, but that it also does not properly justify the difference in treatment.

70 In that connection it must be held, first, that the complaint that the Court of First Instance did not deliver its judgments in related cases on the same day concerns the main proceedings which were concluded by the judgment in DSM v Commission, cited above, and not the revision procedure that gave rise to the contested order, which is the subject of this appeal.

71 Secondly, in so far as it seeks to cast doubt on the finding of the Court of First Instance to the effect that DSM was already aware of the facts relied on in the application for revision before the judgment which it sought to have revised was delivered, that plea concerns questions of fact and is not therefore admissible in an appeal.

72 The ninth plea in law must therefore be dismissed.

Tenth plea in law: infringement of Community law, in that the Court of First Instance did not consider any plea alleging the non-existence of an act of a Community institution to be a matter of public policy

73 According to DSM, the Court of First Instance infringed Community law in not considering that any plea alleging the non-existence of an act of a Community institution is a matter of public policy, in not considering that such a plea may be relied upon by the parties without any time-limit and in not considering that it must be raised by the Community judicature of its own motion. In the PVC judgment, the Court of First Instance held that a plea alleging an act of the institutions to be non-existent is a matter of public policy, may be relied upon by the parties during the proceedings without any time-limit and must be raised by the Community judicature of its own motion. The applicant is therefore entitled to raise the plea at any stage of the procedure and therefore also after the judgment is delivered, without any time-bar, and the Court of First Instance is obliged to examine its merits. Inasmuch as measures of inquiry are necessary for that purpose, the Court of First Instance is obliged to order them.

74 As far as this plea is concerned, the Court finds it sufficient to hold, without its being necessary to examine either the interpretation of the concept of non-existence applied in the PVC judgment or the conditions under which an act may found to be non-existent in annulment proceedings, that, in the contested order, the Court of First Instance had only to reach a decision on the admissibility of the application for revision of the judgment in DSM v Commission, cited above, and in that context did not have to deal with the Polypropylene Decision.

75 That tenth plea in law must accordingly be dismissed.

76 In those circumstances, since none of the pleas in law relied upon by DSM has been upheld, the appeal must be dismissed in its entirety.

Decision on costs

Costs

77 According to Article 69(2) of the Rules of Procedure, applicable to the appeal procedure by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for. Since DSM's pleas have failed, it must be ordered to pay the costs.

On those grounds,

hereby:

2. Orders DSM NV to pay the costs.