Opinion of the Advocate General — ECLI:EU:C:2007:285
Date: 2007-05-15
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment;Appeal - unfounded
Origin: Austria

summary.’ As far as the opinion in issue is concerned, no full version other than the English appears to exist, although there is a summary in English, French, German and Italian. 102. The opinion stated, inter alia: (53) ‘The scientific evidence presented contained no new or uniquely local scientific information on the environmental or human health impacts of existing or future GM crops or animals. No scientific evidence was presented which showed that this area of Austria had unusual or unique ecosystems that required separate risk assessments from those conducted for Austria as a whole or for other similar areas of Europe. No specific cases were presented of impacts of GMOs on biodiversity, either directly or through changes in agricultural practices.’ 103. The use of the words ‘uniquely’ and ‘unique’ seems significant to me. Whilst not unequivocal, it appears to suggest that EFSA’s conclusion may have been based on an understanding that, in order to justify a derogation from Directive 2001/18, it is necessary to establish that there is a problem in the Member State or region in question which is found nowhere else. 104. In EFSA’s summary of the opinion, the phrase ‘no new or uniquely local scientific information’ does not appear, but the phrase ‘unusual or unique ecosystems’ does. It is translated into French and German respectively as ‘écosystèmes atypiques ou uniques’ and ‘ungewöhnliche oder einzigartige Ökosysteme’, both of which seem to reflect the English accurately. 105. The two paragraphs of the opinion are quoted ‘verbatim’ in point 71 of the Commission’s contested decision, where they appear clearly as having some importance in its reasoning. I put the word ‘verbatim’ in inverted commas because the two paragraphs are laid out as one and the French and German versions diverge somewhat from the authentic English of the original. ‘No new or uniquely local scientific information’ becomes, in French, ‘aucune information nouvelle ou spécifiquement locale’ – thus camouflaging any possible discrepancy between the wording of Article 95(5) EC and EFSA’s interpretation of it – and, in German, ‘keine oder nur lokal begrenzte wissenschaftliche Daten’, which has a quite different meaning and may derive from a misreading of the English. ‘Unusual or unique ecosystems’ is translated into French as ‘écosystèmes particuliers ou exceptionnels’ and into German as ‘ein ungewöhnliches oder einzigartiges Ökosystem’. Again, the French removes the notion of uniqueness (and differs from EFSA’s summary in French), but here the German reflects both the English of the opinion and the German of the summary. 106. The Commission’s decision is addressed to Austria, and specifies that only the German text is authentic. It is not clear whether that necessarily implies that the Commission’s analysis was carried out only in German and the decision drafted originally in that language. In any event, the German version of the EFSA opinion, on which the decision was based (at least in part), does not seem to have been entirely an accurate translation. 107. The language of the case before the Court of First Instance was of course German. It is however no secret that the working language of that Court, like that of the Court of Justice, is French. Consequently, its analysis may have been based on French versions of the documents in the case – including in particular the French text of the contested decision, which effaces any reference to uniqueness in the quotation from the EFSA opinion at point 71. In any event the judgment under appeal will have been drafted in French. (54) 108. Those considerations take on some relevance when one looks at the French version of paragraphs 65 to 67 of the judgment. Paragraph 65 reproduces most of the quotation in point 71 of the contested decision, referring to ‘aucune information nouvelle ou spécifiquement locale’ and ‘des écosystèmes particuliers ou exceptionnels’. Paragraph 66 goes on to state that the applicants had failed to provide convincing evidence such as to cast doubt on the merits of the assessments as to the existence of a specific problem, and paragraph 67 that they had not put forward evidence to rebut EFSA’s conclusions that it was not established that Upper Austria contained ‘des écosystèmes particuliers ou exceptionnels’ that required separate risk assessments from those conducted for Austria as a whole or other similar areas of Europe. 109. Consequently, from the French in which the judgment under appeal was drafted, there is no indication that the Court of First Instance was aware of the possibility that EFSA in its opinion might have been proceeding on the assumption that, in order to justify a derogation on the basis of Article 95(5) EC, Austria had to establish the existence of a problem unique to the region in question, rather than one which was specific, particular or in some other way exceptional. 110. It seems to me clear that, as the appellants submit, the word ‘specific’ in Article 95(5) EC cannot be equated with ‘unique’. A problem may be specific to more than one region or Member State, but can be unique only to one. It is perhaps unnecessary to draw a precise line for present purposes, but a specific problem clearly lies somewhere between one which is unique and one which is common, generalised or widespread. The criterion in Article 95(5) EC is that the problem must be specific, and to require uniqueness would be to misinterpret or misapply that provision. 111. That is not to say that the Court of First Instance did misinterpret or misapply the criterion. Its use of the adjectives ‘spécifique’, ‘particulier’ and ‘exceptionnel’ seems entirely consistent with my understanding of the provision. 112. However, after examining the evidence put to it by the applicants, (55) the Court of First Instance concluded that they had not rebutted or cast doubt on EFSA’s conclusions or the Commission’s assessments. However, that finding concerned the conclusions and assessments as expressed in French, without any reference to a criterion of uniqueness. It does not seem to me safe to conclude that the Court of First Instance would have reached the same view if it had been evaluating the evidence against EFSA’s references to uniqueness or had considered the Commission’s assessment to be based on such references. 113. On that basis, the Court of First Instance’s dismissal of the applicants’ plea of infringement of Article 95(5) EC cannot stand. Having found that the conclusion that there was no problem specific to Upper Austria had not been rebutted, the Court did not consider any of the other cumulative conditions laid down in that provision. No sure ground for dismissing the plea thus remains in the judgment. 114. It is therefore necessary to examine the remaining conditions for the application of Article 95(5) EC. Pursuant to the first paragraph of Article 61 of its Statute, the Court of Justice may do so itself or refer the case back to the Court of First Instance, depending on the circumstances. Here, it seems to me that the Court of Justice is in a position to effect the examination. The cumulative conditions in Article 95(5) EC 115. As I have noted, in order to obtain a derogation pursuant to Article 95(5) EC, a Member State must provide new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure. Those various conditions are cumulative, as the Court of First Instance stated and as was expressly accepted by the Austrian Government at the hearing on appeal. In other words, if any one condition is not fulfilled, the derogation cannot be accorded. 116. It does not appear to be contested, either in EFSA’s opinion or in the Commission’s decision, that at least some of the evidence on which Austria relied related to the protection of the environment, although the Commission found, at point 68 of its decision, that Austria’s concerns could not be regarded as relating specifically to protection of the environment. The condition of ‘evidence relating to the protection of the environment’ may therefore be deemed to be fulfilled. A brief remark is however called for. 117. The appellants have argued, on the basis of EFSA’s statement that it ‘was not asked by the Commission to comment on the management of co-existence of GM and non-GM crops’, that EFSA and the Commission ignored the central issue raised by Austria in its request. 118. It seems to me, however, that the Commission correctly sought to distinguish between the environmental issues with which Article 95(5) EC and Directive 2001/18 are concerned and the socio-economic issues of agricultural management, which fall outside the scope of the legislation. (56) In setting out its terms of reference, EFSA stated that it was ‘not requested to comment on information that does not impact on risk to human health and the environment, in particular that relating to the management of co-existence.’ (57) Its opinion clearly did – properly – consider the environmental issues, in particular concerning gene flow, but – equally properly – did not comment on those other issues. 119. Returning to the conditions set out in Article 95(5) EC, it seems to be agreed that the Müller report presented at least some evidence which was scientific, although the EFSA opinion pointed out that many references concerned legislation or economic affairs. 120. The remaining conditions are that the evidence must be new, and that the problem to which it relates must have arisen after the adoption of Directive 2001/18. 121. As regards the question whether the scientific evidence presented in the Müller report was new, EFSA stated that it was mostly a review of current knowledge on crop to crop gene flow and crop to wild relative gene flow of a few crop types. At point 65 of its decision, the Commission considered that the Müller report contained data which were for a large part available prior to the adoption of Directive 2001/18. 122. In their applications at first instance, Land Oberösterreich and Austria accepted that the Müller report was based largely on data already available. They argued, however, that it reached new conclusions from the existing data and that those conclusions should be regarded as ‘new scientific evidence’. They submitted also that it was confirmed by more recent scientific literature. (58) 123. It is easily verifiable that of the 115 references cited in the Müller report completed in April 2002, only 22 date from that year or from 2001, the year in which Directive 2001/18 was adopted, and that fewer than half of those appear to be of a scientific nature. The appellants have made no claim that the 2001 or 2002 scientific references were decisive or even significant as regards the conclusions presented. And, since the issue is whether the evidence Austria presented to justify its request was new, the fact that other new evidence may subsequently have come to light cannot affect the validity in law of the Commission’s decision, having regard to the evidence on the basis of which it was taken and the time at which it was taken. 124. There remains the question whether a new conclusion drawn from existing data can constitute ‘new scientific evidence’. In English, that would not normally be the case. ‘Evidence’ normally designates the raw material from which conclusions may be drawn. The picture is less clear however when one looks at a broader range of language versions of Article 95(5) EC. The Dutch (‘nieuwe wetenschappelijke gegevens’) appears to agree with the English. Several of the Latin languages use terms (‘preuves scientifiques nouvelles’ in French, ‘nuove prove scientifiche’ in Italian and ‘novas provas cientificas’ in Portuguese) which may have a broader meaning. And the Spanish (‘novedades cientificas’) and German (‘neue wissenschaftliche Erkenntnisse’) versions certainly appear more capable than the English of bearing the meaning for which the appellants argued at first instance. I do not think it necessary to look further in order to reach the view that new conclusions drawn from existing data may constitute new scientific evidence within the meaning of Article 95(5) EC. 125. However, I find nothing in the pleadings which goes beyond a simple assertion that the Müller report drew such new conclusions from the existing data. No new conclusion is even identified. Still less is there any explanation of how such a conclusion might differ from conclusions previously drawn from the same data. Since one of the grounds on which the request for a derogation had been rejected was that the scientific evidence was not new, it was incumbent upon the applicants at first instance to rebut that ground if their action was to succeed. It is not sufficient to show that evidence could in theory have been new without identifying and explaining what was in fact new about it. 126. I therefore take the view that the appellants have failed to rebut the Commission’s findings as to the inexistence of new scientific evidence. That is itself a sufficient ground for dismissing their third plea at first instance, but I shall also examine the condition that the problem alleged must have arisen after the adoption of Directive 2001/18. 127. The problem which the appellants have argued is specific to Upper Austria derives, in their submission, from the (relatively) high proportions of organic farming and of small holdings. 128. As regards the size of holdings, they have not submitted that the situation changed in any way after the adoption of Directive 2001/18. 129. As regards the proportion of organic farming, they have given figures for the increase between 31 December 2001 and 31 December 2002: from 2 792 to 3 040 farms, and from 45 950 to 50 077 hectares, making an increase of just under 9% over the year in each regard; organic farming thus accounted (apparently at the end of 2002) for 7.5% of the number of holdings and 8.85% of the farmed area in the region. (59) 130. They have given no figures for the whole of the relevant period from March 2001, when Directive 2001/18 was adopted, to March 2003, when the request for a derogation from the directive was made. If the trend was linear both before (from March to December 2001) and after (from January to March 2003) – as to which there is no evidence one way or the other – extrapolation from the 2002 calendar year figures would lead to the conclusions that there may have been an increase of roughly 18%. Depending on whether area or number of holdings is taken as the basis, that would take the proportion of organic farming within total agriculture in Upper Austria from between 6% and 8% to around 8% or 9%. 131. As a matter of degree, such an increase does not seem sufficient to demonstrate the existence of a newly-arisen problem. The appellants have however argued that Article 95(5) EC does not require that the problem should have arisen in its entirety since the adoption of the harmonising measure. It may in their submission have been previously latent and only subsequently have been revealed to its full extent. In the present case, they allege, it was the publication of the Müller report in April 2002 which revealed that true extent. (60) 132. I would agree that, in principle, a problem which was latent at the time of the adoption of a harmonising measure may, depending on all the circumstances, be regarded as having arisen after that adoption for the purposes of Article 95(5) EC if it is only subsequently revealed. It does not, however, seem particularly likely that a progressive increase in the proportion of organic farming should give rise to such a revelation unless some threshold is crossed which triggers a significant change in the situation. I find nothing in the appellants’ pleadings which goes beyond the simple assertion that the scale of the problem became apparent only with the publication of the Müller report. That, taken together with the fact that they have not identified any specific new conclusion in that report, drawn from new or existing data, leads me to the view that they have not established the existence of a problem which arose after the adoption of Directive 2001/18. 133. Consequently, the appellants have not rebutted the conclusions in point 75 of the contested decision, to the effect that Austria had provided no new scientific evidence and had not demonstrated that there was a specific problem which arose after the adoption of Directive 2001/18. 134. Having regard to the stress laid by the appellants on the precautionary principle, I would add that, relevant though the principle may undoubtedly be when assessing new evidence concerning a new situation, no amount of precaution can actually render that evidence or that situation new. The novelty of both situation and evidence is a dual criterion which must be satisfied before the precautionary principle comes into play. 135. The third plea at first instance may therefore be dismissed in any event, regardless of whether the ground on which the Court of First Instance dismissed it can safely be upheld. Summary and final considerations 136. My analysis may be summarised as follows. 137. In the procedure under Article 95(4) or (5) EC, it is for the Member State to submit with its request all the evidence and argument necessary to support that request. The Commission then takes a decision on that basis. It may before taking its decision obtain the opinion of other Member States (as in Denmark v Commission) or of an expert body set up to assist it in such matters (as in the present case). Because of the nature of the procedure (initiated by the Member State, which has full opportunity to make all relevant submissions) and the time constraints (six months, with the possibility of a single extension in exceptional circumstances of complexity), the Member State does not necessarily enjoy any general right to respond to any opinion obtained by the Commission. However, if an expert body were to give an opinion after hearing evidence or argument contradicting that put forward by the Member State but to which the Member State had not been given an opportunity to respond, it might be necessary to consider whether that was not an essential procedural defect in the formulation of the opinion (Technische Universität München). In the absence of any such difficulty, the Member State’s right to respond to any opinion on which the Commission bases its decision is satisfied by its right to challenge that decision before the Court of First Instance. At that stage, it may put forward any evidence or argument liable to refute any element on which the Commission’s decision is based. 138. If, in such circumstances, the only evidence which the Member State asks the Court of First Instance to consider is that which was already put to the Commission, and which it therefore alleges was incorrectly assessed by the Commission, the Member State must indicate precisely how the evidence should have led to a different conclusion. It is not enough to demonstrate in the abstract that evidence of the kind presented may be capable of interpretation in a different way, and to ask the Court of First Instance to carry out a reassessment of the evidence actually presented. The Member State must at the very least identify specific parts of that evidence which it alleges called for a different interpretation and explain in detail why that interpretation is justified and the interpretation on which the Commission’s decision is based is not. 139. In the present case, Austria had to demonstrate in its application under Article 95(5) EC that all the conditions enumerated in that provision were satisfied: (i) new evidence must be presented, (ii) the evidence must be scientific, (iii) it must relate to protection of the environment or the working environment, (iv) there must be a problem specific to the Member State, and (v) the problem must have arisen after the adoption of the harmonising measure. 140. EFSA in its opinion and the Commission in its decision considered that (i), (iii) and (iv) were not fulfilled. They cannot be said to have found that (ii) was not satisfied at all. They did not explicitly examine (v), but may (justifiably) have considered that the absence of new evidence implied the absence of a newly-arisen problem, or that in the absence of a problem specific to Upper Austria there was no need to examine the timing more closely. 141. Before the Court of First Instance, Land Oberösterreich and Austria submitted that all the conditions in Article 95(5) EC were satisfied. That Court found that they had not established (iv) to be satisfied and concluded that the failure was sufficient for it to dismiss their claim that the contested decision infringed Article 95(5) EC. On the basis of that finding, its conclusion was correct, but the finding is open to doubt in that it may not have realised that EFSA possibly applied a more demanding standard than ‘specific’, namely ‘unique’. 142. The claim of infringement of Article 95(5) EC could succeed only if is it shown that all the conditions in that provision were satisfied. Land Oberösterreich and Austria have not shown that to be the case, either before the Court of First Instance or before the Court of Justice, because they have not shown that (i) and (v), taken together, were satisfied – that there is new evidence of a problem which arose after the adoption of Directive 2001/18. They have merely resubmitted evidence considered by EFSA and the Commission, and have pointed out (correctly) that a new analysis of existing data leading to a new conclusion may qualify as ‘new evidence’ for the purposes of Article 95(5) EC and that a problem which was latent at the time of adoption of a harmonising measure may be regarded for the same purposes as having arisen after that adoption if it became apparent only after that date. They have not explained how the evidence is alleged to meet those criteria or identified which aspects of it are alleged to be relevant. 143. I am well aware that the conclusion which I reach – or perhaps rather its implications – will disappoint not only the appellants but also many individuals and organisations deeply and genuinely concerned about the as yet not wholly determined risks involved in the propagation of GMOs. 144. I would recall, however, two considerations. 145. On the one hand, as I outlined above, (61) the concerns in question are policy concerns which must be dealt with in political fora. It is not for this or any other court to determine proper national or Community environmental policy. And the concerns in question are not in themselves directly relevant to the legal issues raised in this case, whether at first instance or on appeal. 146. On the other hand, it is clear that national and regional authorities within the Member States have considerable powers and duties to take those concerns into account in the formulation of their own policies and in the application of Community policies. They may pass legislation such as that finally adopted in Upper Austria, which imposes stringent safeguards on the cultivation of GMOs. They may intervene in the Community approval process under part C of Directive 2001/18. They must monitor and report new information under Article 20 of that directive, they may invoke the safeguard clause in Article 23 and they may take measures under Article 26a. (62) Moreover, in accordance with the 2003 guidelines, (63) they may and should take steps to ensure that any cultivation of GMOs within their territory can coexist, without admixture, with neighbouring conventional or organic farming. 147. What they may not do is to adopt legislation imposing a blanket ban on GMOs within their territory, unless they can provide evidence which complies with all the criteria in Article 95(5) EC. Costs 148. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. The Commission has applied for costs, and the appellants’ arguments should in my view be unsuccessful overall, even though they have identified a possible flaw in the judgment under appeal. Conclusion 149. In the light of all the above considerations, I am of the opinion that the Court should – set aside the judgment of the Court of First Instance in Joined Cases T-366/03 and T-235/04 in so far as it dismisses the plea of infringement of Article 95(5) EC, – dismiss the applications in those cases and – order the appellants to pay the costs. 1 – Original language: English. 2 – Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Directive 90/220 (OJ 2001 L 106, p. 1). 3 – A helpful flowchart of the part C procedure appears as Annex A-2 to WTO Panel Reports WT/DS291/R, WT/DS292/R and WT/DS293/R, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, of 29 September 2006. 4 – Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003 L 268, p. 1). 5 – See lists at http://ec.europa.eu/environment/biotechnology/authorised_prod_2.htm and http://gmoinfo.jrc.it/gmc_browse.aspx?DossClass=3. 6 – See lists at http://ec.europa.eu/environment/biotechnology/pending_products.htm and http://gmoinfo.jrc.it/gmc_browse.aspx?DossClass=0. 7 – Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms (OJ 1990 L 117, p. 15). It had the same aims as Directive 2001/18 and its provisions were similar but, following a number of amendments, was repealed and replaced by the present directive. See list at http://ec.europa.eu/environment/biotechnology/authorised_prod_1.htm. 8 – See table at http://biotech.jrc.it/deliberate/dbcountries.asp. 9 – See Annex III to the draft minutes of the 2194th Council meeting (Environment) held in Luxembourg on 24 and 25 June 1999. 10 – See the Panel Reports cited in footnote 3. 11 – Commission Recommendation of 23 July 2003 on guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming (OJ 2003 L 189, p. 36). 12 – Landesgesetz, mit dem der Anbau von gentechnisch verändertem Saat- und Pflanzgut sowie der Einsatz von transgenen Tieren zu Zwecken der Zucht sowie das Freilassen von transgenen Tieren insbesondere zu Zwecken der Jagd und Fischerei verboten wird (Oberösterreichisches Gentechnik-Verbotsgesetz 2002). The text may be downloaded from, inter alia, http://www.genfood.at. 13 – ‘GVO-freie Bewirtschaftungsgebiete: Konzeption und Analyse von Szenarien und Umsetzungsschritten’. The full text may be downloaded from, inter alia, http://www.genfood.at. 14 – By virtue of Articles 22(5)(c) and 29(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1). 15 – http://www.efsa.europa.eu/en/science/gmo/gmo_opinions/178.html. 16 – Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty (OJ 2003 L 230, p. 34) (‘the contested decision’). 17 – Article 23, quoted in point 12 above. 18 – Point 56 of the contested decision. 19 – The reference to ‘excerpts’ included with the notification is puzzling. From footnote 1 to point 63 of the decision it seems clear that the Commission received the full report, together with a number of other documents, all of which it passed on to EFSA – whose own opinion appears to indicate that it considered the full report. Point 70 may refer to excerpts which were actually included in the actual letter of notification. It is clear from the German version that the word ‘Act’ in English refers to the draft law. 20 – Joined Cases T-366/03 and T-235/04 Land Oberösterreich and Austria v Commission [2005] ECR II-4005. 21 – Case C-3/00 [2003] ECR I-2643, paragraphs 47 to 50. 22 – Paragraphs 32 to 35 of the judgment under appeal. 23 – Paragraphs 38 and 39 of the judgment under appeal. 24 – Paragraphs 40 to 42. 25 – Paragraphs 43 and 44, citing Case C-41/93 France v Commission [1994] ECR I-1829, paragraphs 29 and 30, and Case C-319/97 Kortas [1999] ECR I-3143, paragraph 28 (concerning the procedure under Article 100a(4) of the EC Treaty, the predecessor of Article 95(4) EC). 26 – Paragraphs 45 and 46. 27 – Paragraph 59 of the judgment under appeal. 28 – Paragraph 61. 29 – Paragraph 62, citing Case C-512/99 Germany v Commission [2003] ECR I-845, paragraphs 40 and 41, and Denmark v Commission, paragraphs 56 to 58. 30 – Opinion of Advocate General Tizzano in Germany v Commission, point 71; Denmark v Commission, paragraph 84. 31 – Paragraphs 63 and 64 of the judgment under appeal. 32 – Paragraph 65 of the judgment under appeal; see also points 23 and 28 above. 33 – See point 17 above. 34 – Paragraphs 66 and 67 of the judgment under appeal. 35 – Germany v Commission, cited in footnote 29, paragraph 81. 36 – Paragraph 71 of the judgment under appeal. 37 – Article 95(3) EC. 38 – Cf. points 42 to 44 above. 39 – See footnote 25. 40 – Oberösterreichisches Gentechnik-Vorsorgegesetz, notified (No 2005/610/A) under Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37). 41 – The legislation has now been adopted by the Upper Austrian legislature (LGBl. 79/2006, p. 261). Under it, any person intending to cultivate authorised GMOs must declare the intention to the authorities. Various grounds for refusal of permission, connected essentially with the situation of the land concerned, are specified, but the authorities may instead impose various conditions if that would suffice to prevent any spread of the GMOs. 42 – See Articles 175(1) and (3) and 251 EC. 43 – It applies also in appeals, even though they are not strictly directed against the party or parties successful at first instance, and in preliminary reference procedures, where a number of parties may make submissions to the Court and enjoy an opportunity to respond to each others’ submissions. 44 – See footnote 25 above. 45 – I note, in any event, that the Commission states (see point 8 of the defence in Case T-366/03 and footnote 13 to the response in Case C-439/05) that Land Oberösterreich did in fact have and use an opportunity to respond to the EFSA opinion. That statement does not appear to have been contested. 46 – Case C-269/90 [1991] ECR I-5469. The pertinent paragraph of the judgment (paragraph 25) has been cited as authority by the Court of First Instance in Case T-346/94 France-Aviation v Commission [1995] ECR II-2841, paragraphs 32 to 36; Case T-42/96 Eyckeler & Malt v Commission [1998] ECR II-401, paragraph 80; and Case T-50/96 Primex Produkte and Interporc v Commission [1998] ECR II-3773, paragraph 63 – all, like Technische Universität München, in the field of customs duties. 47 – ‘[D]roit d’être entendu’ in French. The emphasis later in the quotation is mine. 48 – The other two grounds were that the ‘group of experts’ was not composed of true experts but of national civil servants, and that the Commission’s decision was insufficiently reasoned. 49 – Nor, if they had been, would they have been well founded. 50 – In a different context one might consider, for example, Case C-243/04 P Gaki-Kakouri v Court of Justice (not published in the ECR but available in French on the Court’s website), paragraphs 22 to 41, or Case C-189/02 P Dansk Rørindustri v Commission [2005] ECR I-5425, paragraphs 77 to 102. 51 – See point 26 above. 52 – See, for example, Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraphs 69 and 70. 53 – See points 23 and 24 above. 54 – I note that none of the judges who signed the judgment had German as his or her mother tongue, although of course they may well have had a knowledge of German. 55 – Both applicants submitted copies of the Müller report and of the committee report mentioned in point 26 above, both of which had been examined by the EFSA panel. With its reply, Austria submitted a copy of the Austrian contribution to a WTO dispute settlement meeting on 14 January 2004; it is a three-page document in English which cites references all of which appear to postdate the request under Article 95(5) EC. 56 – See further point 27 et seq. of the contested decision, and the Commission guidelines referred to there, cited in footnote 11 above, especially at points 1.1 and 1.2. 57 – Emphasis in the original. 58 – See the application in Case T-366/03, points 87 to 89, and in Case T-235/04, points 81 to 83; reply in Case T-366/03, points 22 to 25, and in Case T-235/04, points 23 to 26. 59 – Application in Case T-366/03, point 96; in Case T-235/04, point 90. 60 – Application in Case T-366/03, points 98 and 99; in Case T-235/04, points 92 and 93. Reply in Case T-366/03, point 28; in Case T-235/04, point 30. 61 – Points 70 to 73. 62 – See points 11, 12 and 13 above, respectively. 63 – See points 18 and 19 above.