3.

In its written observations the Commission contended: (a) that Nicolet had no capacity for bringing an action in the German courts; (b) that since the time-limits laid down for an action for annulment under Article 173 of the EEC Treaty had expired it could not in any event seek a decision on the validity of a Community measure in reliance on Article 177. However, during the oral procedure the Commission's agent expressly abandoned those arguments of inadmissibility. I therefore consider that it is not necessary to go into them here, although I would point out that in the light of the case-law of the Court both are entirely void of foundation (as regards the first, see the judgment of 7 July 1981 in Case 158/80, Rewe v Hauptzollamt Kiel [1981] ECR 1805 and as regards the second, the judgment of 27 September 1983 in Case 216/82, Universität Hamlwrg-Kebi-wieder[1983] ECR 2771). I now pass to the consideration of the merits and observe that although the cases are references to the Court for a preliminary ruling, the complaints made by Nicolet against Decisions 82/549 and 80/716 are formulated as submissions in an action. Nicolet claims in respect of the two measures: (1) that there is no statement of reasons; (2) that essential procedural requirements are disregarded; (3) that there are patent mistakes of fact and law. Let me say straightaway that in my opinion the first two complaints are without foundation whereas the third is well founded. Here are, in order, my reasons for taking that view. As regards the absence of reasons, Nicolet claims that the decisions are restricted to citing the opinion of experts consulted by the Commission; on the other hand they do not mention the matters of law and fact which the Commission took into account. In that respect the judgment of this Court of 25 October 1984 in Case 185/83, [1984] ECR 3623 which concerned a similar problem seems to me pertinent. It is there stated that although the statement of reasons required by Article 190 of the Treaty must show clearly and unambiguously the reasoning of the Community authority so as to enable those concerned to know the grounds for the measures taken in order to vindicate their rights, it is not necessary for it to specify all the matters of fact or law taken into account by the authority. The question whether the statement of reasons in a decision satisfies those requirements must be determined in the light not only of its wording but also of its context and all the rules governing the matter in question. In that case, I might add, the Court conceded that the statement of reasons in the contested decision was laconic, but considered that it met the minimum requirements in Article 190 of the Treaty in view of the fact that the decision was addressed to the Member States who had taken part in the meetings of the group of experts and knew sufficiently the details of the case to be able to appreciate the extent of the decision and that it also contained sufficient detail to enable the scientific establishment concerned to determine whether the decision was vitiated on the grounds of patent mistake or misuse of powers (paragraphs 38 and 39). Every one of those words applies to the present case; consequently the argument of Nicolet Instrument GmbH must fail. In the view of the plaintiff in the main action, the two decisions are also vitiated by breach of essential procedural requirements, in particular ‘the right to be heard’ which is protected inter alia in Article 20 of the German Grundgesetz [Basic Law]. But on that issue, also, the aforesaid judgment of 25 October 1984 gives an unequivocal answer. It was stated there that according to the Community rules on the subject (above all Commission Regulation No 2784/79) the person claiming exemption is not entitled to take part in the investigation carried out by the Committee, which is simply an exchange of views between the experts of the Member States; apart from that he has no right to be heard before the Commission adopts a decision.