Opinion of the Advocate General — ECLI:EU:C:1997:529
Date: 1997-11-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment - successful
Origin: Germany

summary minutes shall be prepared after each meeting showingthe results and conclusions and with the list of attendance in its annex. 3. The Committee shall adopt the minutes at its next or in exceptional caseson the occasion of a following meeting. 4. Minutes shall be submitted to the Committee for approval only if the draftversion has been sent to the representatives at least 20 days before thatmeeting. 5. Proposed amendments to the draft minutes should as far as possible besubmitted in writing one week before the meeting at which the documentin question is to be approved. 20. Article 12(3) of the rules of procedure provides that all correspondence is to besent directly to the representatives on the Committee, with a copy to the offices ofthe Permanent Representatives. The pleas in law in support of the application for annulment 21. The Federal Republic of Germany puts forward four pleas in law in support of itsapplication for annulment. The first two allege irregularities in the procedurebefore the Standing Committee on Construction, in that the preparatory documentsfor the meeting of 30 November 1994 were not sent within the time-limit laid downin its rules of procedure and in that no decision was taken by the StandingCommittee on Construction. The third plea alleges infringement of Article 13(4)of Directive 89/106 on the ground that the contested decision fails to take accountof important characteristics or properties of the products, linked to essentialrequirements. The fourth plea alleges breach of the duty to state reasons, on theground that the contested decision does not indicate the reasons for which a seriesof essential requirements were not taken into consideration in the context of theprocedure for attesting conformity. The first plea 22. In its first plea, the Federal Republic of Germany criticises the Commission for nothaving sent within the prescribed time-limit the draft Commission Decision whichwas to be discussed at the meeting of the Standing Committee on Construction on30 November 1994 and on which the Committee was to deliver its opinion. TheGerman version of that draft, it states, was not sent to the office of its PermanentRepresentative, nor was it received by fax by the German members of the StandingCommittee on Construction until 11 November 1994, thus 19 days before themeeting and not 20 as provided in Article 2(6) of the rules of procedure. TheGerman delegation pointed out the delay in writing the day before the StandingCommittee's meeting and requested that the vote be postponed. It repeated thatrequest during the meeting. The Federal Republic of Germany stresses that thedelay in sending the draft constitutes a substantive procedural defect, rendering theopinion of the Standing Committee on Construction void. It states that if theGerman delegation had been in possession of the draft decision in good time, itsmembers would have been in a better position to discuss it. 23. The Commission acknowledges the slight delay in sending the draft to the Germandelegation, but points out that the English version had been sent to all the Member States' delegations on 10 November 1994, within the time-limit. In addition, alldelegations had been in possession of the original draft decision (Construct 94/124)since September 1994, including the German delegation, which had a Germanversion. The German delegation had, moreover, drafted a counter-proposal inGerman and English, demonstrating that it had extremely detailed knowledge ofthe draft. The 'Rev. 1 version, which was to be distributed, contained only a fewsmall changes with regard to the original text of September 1994, and none of thosechanges concerned the criticisms put forward by the Federal Government in itsapplication. The procedural defect is thus of minimal importance and had noeffect on discussion or voting within the Committee. Finally, the Commissionargues that it is unreasonable to request postponement of a vote the day before ameeting is due to take place. It states that the German Government did not repeatits request during the meeting but approved the agenda without reservation, tookpart in the discussions and voted. 24. The Federal Republic of Germany considers, however, that sending the text inEnglish did not comply with Article 3 of Council Regulation No 1 of 15 April 1958determining the languages to be used by the European Economic Community (OJ,English Special Edition 1952-1958, p. 59) and was inadequate from a substantivepoint of view, since it was only when the German text was received that theCommission's position became clear. It maintains, moreover, that the Germandelegation requested postponement of the vote by letter of 29 November 1994,repeated that request at the meeting and had the minutes corrected so that itsrefusal to vote at the meeting was noted. 25. The Commission disputes the significance of the amendment to the minutes. Itstresses that it makes subsequent additions of that kind, which a delegation wishesto have included in the minutes, without examining their content, since it wouldotherwise be impossible for the Commission and the Member States to cooperatein a climate of trust. 26. It is common ground that the draft decision to be discussed at the meeting on 30November 1994 was not sent to the office of the Permanent Representative andthat only after the time-limit had expired was it sent to the Federal Republic ofGermany's representatives on the Standing Committee on Construction, contraryto Article 2(6) of the rules of procedure. It is also established that the FederalRepublic of Germany formally requested postponement of the vote by letter of 29November and that the Commission did not take account of that request, contraryto Article 2(7) of the rules of procedure. 27. The sending of an English version of the document to the German delegationwithin the time-limit clearly does not constitute compliance with Article 3 ofCouncil Regulation No 1, under which documents sent by an institution to aMember State are to be drafted in the language of such State. 28. Nor has it been established that the document was sent at the same time to theoffice of the Federal Republic of Germany's Permanent Representative, asprovided for in Article 2(6) of the rules of procedure. 29. As regards the Commission's argument that the request for postponement shouldhave been made at the meeting, Article 2(7) of the rules of procedure makes noprovision for such a requirement when the request for postponement has alreadybeen made by letter. None the less, it appears from the minutes of the meetingas amended at the request of the Federal Republic of Germany and subsequentlyapproved at the meeting of 29 May 1995, which is the only authentic record, thatthe German representatives did in fact repeat their request for postponement ofthe vote at the meeting of the Standing Committee on Construction. 30. As the Advocate General noted at points 13 and 14 of his Opinion, it is clear froma comparison between Article 2(5) and (6) of the rules of procedure that adistinction is drawn between ordinary working documents and the draft provisionsreferred to in Article 20(2) of Directive 89/106. Whilst ordinary working documentsare sent to the Member States' representatives and alternates on the StandingCommittee on Construction, with a copy for the offices of the PermanentRepresentatives, and whilst, under paragraph 5, the chairman may in urgent casesshorten the period of notice to 10 clear working days, paragraph 6 specifies thatdrafts of the provisions referred to in Article 20(2) of Directive 89/106 to be votedare to be sent to the offices of the Permanent Representatives of the MemberStates as well as to their representatives on the Committee not later than 20 daysbefore the meeting is due to take place, without there being any indication thatsuch period of notice can be shortened. 31. That requirement for the document to be sent separately to the offices of thePermanent Representatives of the Member States and to their representatives onthe Committee, taken together with the fact that there is no possibility forshortening the period of notice, is a sufficient indication of the intention to ensurethat Member States should have the time necessary to study these documents,which may be particularly complex and may require considerable contact anddiscussion between different administrative authorities, or consultation of expertsin various fields or of professional organisations. 32. It must therefore be held that the adoption of the opinion of the StandingCommittee on Construction, without regard to the obligation to send the draftdocument to its two separate addressees within the time-limit laid down andwithout the vote having been postponed despite the request made by a MemberState, is vitiated by infringement of essential procedural requirements, with theresult that the contested decision is void. 33. Since the first plea in law is well founded, the contested decision must be annulled,without there being any need to examine the other pleas raised. Costs 34. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been asked for in the successful party'spleadings. The Federal Republic of Germany has asked for costs against theCommission. Since the Commission has been unsuccessful, it must be ordered topay the costs. On those grounds, THE COURT hereby: 1. Annuls Commission Decision 95/204/EC of 31 May 1995 implementingArticle 20(2) of Council Directive 89/106/EEC on construction products; 2. Orders the Commission to pay the costs. Rodríguez Iglesias Ragnemalm Wathelet Schintgen Mancini Moitinho de Almeida Kapteyn Edward Hirsch Sevón Ioannou Delivered in open court in Luxembourg on 10 February 1998. R. Grass G.C. Rodríguez Iglesias Registrar President 1: Language of the case: German.