CELEX: 61981CC0211
Language: en
Date: 1982-11-10
Title: Opinion of Mr Advocate General Mancini delivered on 10 November 1982. # Commission of the European Communities v Kingdom of Denmark. # Case 211/81.

OPINION OF MR ADVOCATE GENERAL MANCINI
      DELIVERED ON 10 NOVEMBER 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               The present case comes before the Court by way of an application brought by the Commission under Article 169 of the Treaty of Rome for a declaration that the Kingdom of Denmark has failed to fulfil an obligation imposed on it by the EEC Treaty. That Member State is said not to have implemented, with the period prescribed, the laws, regulations and administrative provisions needed to comply with Council Directive 76/891/EEC of 4 November 1976 on the approximation of the laws of the Member States relating to electrical energy meters (Official Journal L 336, P- 30).
            
         
               2. 
            
            
               I will summarize the contents of Directive 76/891. It is based on Article 100 of the EEC Treaty and forms pan of a larger series of directives issued by the Council for the purposes of eliminating technical barriers to intra-Community trade stemming from the laws, regulations and administrative provisions of the Member States which make the placing on the market and entry into service of certain products subject to compliance with certain technical requirements. In particular, Directive 76/891 concerns a specific aspect of measuring, a sector expressly contemplated by the General Programme for the Elimination of Technical Barriers to Trade, approved by the Council, on a proposal from the Commission, by resolution of 28 May 1969 (Official Journal, English Special Edition, Second Series No DC, p. 25).
               The system, on which Community legislation in the matter of measuring instruments is based, is laid down by a so-called framework directive, Directive 71/316 of the Council of 26 June 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrologicai control (Official Journal, English Special Edition 1971 (II), p. 707), amended successively by Directive 72/427 of the Council of 19 December 1972 (Journal Officiel L 291, p. 156) and supplemented by Commission Directive 82/621 of 1 July 1982 (Official Journal L 252, p. 1). The framework directive essentially seeks to harmonize national provisions relating to controls carried out prior to the placing on the market of the instruments concerned; it is based on the mutual recognition of controls, contemplates an “EEC pattern approval” and “EEC initial verification”: the instruments are provided with an EEC pattern approval sign, described in Annexes I and II to the directive and attesting that they, having undergone the controls and satisfying the conditions laid down by the directive, must be allowed to move freely within the Community without undergoing fresh controls at national frontiers.
               The framework directive also referred to separate directives which would lay down, in respect of each category of measuring instrument, the metrologica! qualities and the specifications relating to technical production and operation. As may be inferred from the second recital in its preamble, Directive 76/891 is one of those separate directives. It applies to new direct-connected induction meters, with single or multiple tariffs, designed to measure active energy single-phase or polyphase current at 50 Hz frequency (Article 1). By virtue of Article 3 of that directive Member States “may not prevent, prohibit or restrict the placing on the market or entry into service of electrical energy meters if such meters bear the EEC type-approval sign and the EEC initial verification mark”. Under Article 2 the mark and sign may be given only to those electrical energy meters whose characteristics correspond to the technical and metrologicai specifications laid down in the annex to the directive. As regards implementation of the directive Article 4 thereof imposes on Member States a period of 18 months for making their own legislation comply with it and requires them to inform the Commission of the measures adopted.
            
         
               3. 
            
            
               I will recall the facts leading up to the Commission's application.
               Directive 76/891 was notified to the Kingdom of Denmark on 9 November 1976; the period laid down for its implementation thus expired on 9 May 1978. However, before the expiry of that period, in fact on 30 March 1978, Denmark's Permanent Representative, in reply to a letter from the Commission dated 18 January 1978, stated that there was no specific legislation in Denmark relating to electrical energy meters. Therefore, in that Government's view, since the Danish authorities might not prevent, prohibit or restrict the placing on the market and the entry into service of meters bearing the EEC type-approval sign and the EEC initial verification mark, Directive 76/891 required no specific implementing measure.
               By a letter dated 7 June 1978 the Commission informed the Danish Government that the obligations imposed on Member States by the directive in question were not concerned solely with the placing on the market and entry into service of the electrical energy meters to which the directive applied, but that they also required the EEC type-approval signs and the EEC initial verification mark to be issued. Since Denmark had not adopted any measures in implementation of the directive, the Commission, by letter of 23 May 1979, invited that Member State, pursuant to the first paragraph of Article 169 of the EEC Treaty, to submit its observations.
               In its reply of 22 August 1979 the Danish Government challenged the argument to the effect that it ought to have established the administrative machinery needed for the approval and verification of meters manufactured in Denmark. It produced the text of a joint statement of the Council and the Commission concerning Article 2 of the directive and included in the minutes of the Council meeting at which the directive in question was adopted.
               Not convinced by the arguments of the Danish Government, the Commission on 6 October 1980 issued its reasoned opinion on the matter. Since the Danish Government maintained its own point of view, the Commission brought the matter before this Court by an application dated 3 July 1981, which was registered at the Court on 13 July 1981.
            
         
               4. 
            
            
               The first aspea which must be examined concerns the objection of inadmissibiiity put forward by the Danish Government on the basis of an alleged discrepancy between the issues raised at the stage of the pre-contenuous, administrative phase of the procedure and those raised in the contentious phase before the Court. The Danish Government observes in particular that the Commission's letter giving forma notice is formulated in absolutely general terms whereas the Commission is required to define the alleged default and give the reasons on which the allegation is based in such a way as temake it possible for there to be a fruitful dialogue with the Member State. It then maintains that the grounds on which the Commission based its arguments in the reasoned opinion were amended in the application. Only in the latter did the Commission refer to framework Directive 71/316 and infer from it the obligations which, in its view, were binding on the Danish Government. That alteration of its line of argument ought to have led it to issue a fresh reasoned opinion. The Commissions conduct did not therefore comply with the duty of diligence which is incumbent on the Executive in initiating the procedure under Article 169 of the EEC Treaty and unacceptably restricted Denmark's rights of defence.
               It seems to me, however, that the Commission's conduct is in conformity with the Treaty. It is certainly true that the binding nature of the procedure under Article 169 involves a senes ot effettive procedural safeguards in favour of the Member Sutes. This Court itself has stressed the importance of the administrative stage and has affirmed that the opportunity for Member States to submit their own observations on a well-defined set of allegations “constitutes an essential guarantee required by the Treaty and amounts to an essential procedural requirement in proceedings relating to the finding of a failure on the part of a Member State” (judgment of the Court of 17 February 1970 in Case 31/69 Commission v Italy [1970] ECR 25 at paragraph 13). Thus it may be inferred that the specific function of the letter giving formal notice is to define once and for all the subject-matter of the dispute in such a way that it may not subsequently be altered and to enable the Member Sute to defend itself. Viewed in that light the whole administrative suge of the proceedings may be said to be intended to ensure respect for the well-known principle audietur et altera pars.
               But, granted that this is so, the fact remains that the Danish Government was placed by the Commission in a position to defend itself and that it did in fact defend itself. As I have already said the Danish Government criticizes the Commission for formulating its letter giving formal notice in very general terms. However, in my view, that letter contains the requirements which are essential for a correa formal notice ot default, namely a specific reference to the alleged infringement by the Member Sute (failure to implement the directive in due time), a warning that the Commission intends to inmate the procedure under Article 169 and the fixing of a period of time for submission by the Member Sute of its servauons.
               In that respea I would like to remind the Court of Mr Advocate General Gand s view in his Opinion in Case 45/64 Commission v Italy [1965] ECR 857 at page 871, namely that “the letter which begins that procedure constitutes a preliminary measure by which the Member Sute is informed of the alleged aa or omission and of the Community rules which, in the opinion of the Commission, were infringed by that State; its only purpose is to open a dialogue. The observations submitted by the Member State may weaken the view of the Commission or may confirm it, or may lead that institution to specify or amend the reasons upon which its original view was based. It is only then that the reasoned opinion is delivered setting out the definitive position of the institution on which your judgment will be based. But this preliminary procedure must not be enclosed in a rigid framework ...”.
               Also unfounded in my view is the criticism directed at the Commission to the effect that it did not state precisely, surting with its letter giving formal notice, the measures which it considered indispensable for the implementation of the directive at national level. The Commission, which moreover enjoys a wide discretion in this matter, is not required to indicate the speafic measures which are needed to put an end to failures to fulfil obligations. Since the present case involved the transposition into internal law of obligations deriving from a directive, the Commission was obliged under the third paragraph of Article 189 of the EEC Treaty to respect the reservation to Member States of the power to choose the forms and methods of implementation.
               Similarly, I consider that the Commission cannot be censured for having mentioned, only in the application and not also in the reasoned opinion, the correlation between the framework Directive 71/316 and the directive on electrical energy meters. It is true that to amend in the application the matters of fact and law set out in the reasoned opinion would be detrimental to the interests of the defence; but it is also true that the obligations stemming from Directive 76/891 must be seen against the background of the legislative context of which that directive forms part. Besides, the Commission's conduct may be explained by the need to reply to the observations of the Danish Government on the reasoned opinion.
               It is clearly apparent from the documents in the case that the Danish Government defended itself as from the pre-contentious stage by giving its own opinion on the specific question which is the subject-matter of these proceedings and that, at the same time, there was no doubt as regards the default alleged by the Commission. For the reasons set out above I consider that the Court should reject the objections raised against the admissibility of the application.
            
         
               5. 
            
            
               The question relating to the substance of the case must now be examined. As the Court is aware these are concerned with the scope of the Member States' obligations with regard to Directive 76/891 on electrical energy meters.
               In its pleadings and at the hearing the Danish Government based its defence on Articles 2 (2) and 8 (2) of framework Directive 71/316. Article 2 (2) provides that “in so far as their control equipment permits, Member States shall, at the request of the manufacturer or of his authorized representative, grant EEC pattern approval” and Article 8 (2) that “if they have the requisite equipment, Member Sutes shall carry out EEC initial verification”. In the Danish Government's view, those provisions impose no obligation to establish the administrative and technical machinery for granting approvals and verifications when no corresponding department exists within the national administration.
               On the other hand, the Commission argues that two types of obligation stem from Directive 76/891 read in the light of framework Directive 71/316. The first is negative in character and concerns the elimination of barriers to intra-Community trade in electrical energy meten. More specifically, it requires Member States not to “prevent, prohibit or restria the placing on the market or entry into service of electrical energy meten if such meters bear the EEC type-approval sign and the EEC initial verification mark” (Article 3 (1) of Directive 76/891 and Article 1 (1) of Directive 71/316). The second obligation is positive in nature and is intended to ensure that the necessary measures are adopted internally for carrying out the controls provided for by the directive. The Commission accuses Denmark solely of having failed to fulfil the latter obligation. The Danish Government, it asserts, has failed to comply with the directive by not having established the necessary administrative machinery to carry out the operations of approval and verification provided for by the directive.
               In that respect it is worth observing that the Commission bases its own argument on a systematic interpretation which takes into account the entirety of Directive 71/316 and in particular its annexes. It is provided in the annexes, both in respect of EEC pattern approval and EEC initial verification, that “the study of the documents ... and examination of the measurement characteristics of the pattern” may be carried out “in the laboratories of the metrological service, in approved laboratories or at the place of manufacture, delivery or installation” and that the “metrological service may require the applicant to put at its disposal the standards and the appropriate means in material and in assisting personnel for the performance of the approval tests”. In the Comission's view, therefore, the terms “in so far as their control equipment permits” and “if they have the requisite equipment” mean that the Member State may itself not possess the necessary equipment in the Sute laboratories or laboratories subject to public control but that does not relieve them of the requirement to carry out, whenever they receive a request to that effect, the operations of approval or initial verification. The. Commission therefore considers that any Member Sute which is not equipped with administrative machinery must esublish an appropriate department so as to enable national or foreign producers to obtain EEC approval and initial verification.
            
         
               6. 
            
            
               Of the two arguments I lean in favour of that put forward by the Danish Government. I am persuaded that the scope of the obligation imposed on the Member Sutes is determined by Articles 2 (2) and 8 (2) of Directive 71/316. Member Sutes, therefore, are obliged to esublish a department for EEC approval and initial verification only if they already have available the technical and administrative machinery, even if only in an elementary form, for the control of instruments for measuring electrical energy. My view is based on a number of considérations relating to the letter and scope of the provisions, to their arrangement in the system, to the relationship between the framework directive and the specific directive and the features of the situation in regard to the approximation of laws in that sphere.
               The language of the provisions is clear. The expressions “in so far as their control equipment permits” and “if they have the requisite equipment” are not open to doubt, as is further demonstrated by the corresponding expressions in the other official languages. They can have only one possible meaning, namely that of making the obligation on the part of the Sute to set up a department subject to the existence of appropriate internal machinery. The interpretation advocated by the Commission therefore conflicts with what the directive says. Nor do the provisions in question acquire a different meaning when taken in conjunction with other provisions of the directive or the annexes thereto.
               In support of its argument the Commission points out that Article 2 (2) of Directive 76/891 on electrical energy meters provides for those meters to be “the subject of' EEC type-approval and to be submitted for EEC initial verification”. Every Member State must therefore, according to the Commission, be in a position to ensure, by means of its own administrative machinery, that all electrical energy meters, including national ones, may obtain EEC approval. That line of reasoning is not convincing. It seems more logical to me to interpret the second paragraph in the light of the first, as suggested by the Danish Government, and consequently to take the view that, in order to bear the sign, the meters must be subject to approval and verification. I do not think that it is possible to infer either from the paragraph I have just cited or from Directive 76/891 taken as a whole that, as the Commission claims, Denmark is under an obligation to provide itself with the administrative machinery necessary for verification and controls. Nor do I think that there is any relevance in the fact that a symbol, for use by Denmark, is contained in the annex to the framework Directive 71/316. It may be observed, on the one hand, that the framework directive refers to a multiplicity of measuring instruments for some of which “toul” harmonization is prescribed and, on the other hand, that it was out of the question that no provision should be made for a sign applicable in Denmark, to be used should the authorities of that country intend to set up the administrative machinery necessary for the controls.
               Equally inappropriate in my view is the reference to the annexes to Directive 71/316 by virtue of which Member Sutes may use private laboratories or laboratories of other Member Sutes. In my opinion, that provision is to be explained by the freedom granted to the Sute to undertake the operations relating to controls and verifications itself or to accept controls carried out elsewhere.
            
         
               7. 
            
            
               The interpretation which I propose to the Court finds confirmation in several places in the preparatory working documents leading to framework Directive 71/316. It is well known that the Court, on a number of occasions, has examined the preparatory working documents relating to secondary Community legislation in order to ascertain the general structure of a body of rules (see for example the judgments of 12 November 1969 in Case 29/69 Stauder v City of Uim [1969] ECR 419, of 9 October 1974 in Joined Cases 112, 144 and 145/73 Campogrande and Others v Commission [1974] ECR 957, of 5 June 1973 in Case 81/72 Commission v Comuti [1973] ECR 575 and of 26 June 1975 in Case 70/74 Commission v Council [1975] ECR 795).
               The Commission did in fact initially submit to the Council on 14 April 1966 a proposal for a directive on measuring instruments which provided for “total” harmonization (66/558/EEC, Journal Officiel 182, p. 3145) without, however, imposing on the Member State any specific obligation to establish particular administrative machinery. Subsequently the Commission, which in the meantime had further elaborated its policies in the matter in the General Programme for the Elimination of Technical Barriers to Trade of 1968, fell back on an “optional” harmonization, and submitted to the Council on 15 July 1970 an amended proposal for a directive (Journal Officiel C 115, p. 11). That change of course came about as a result of the discussions which were held, as from 1966, within the Council and the working parties of the Commission. It emerged from those discussions, as is stated in the note introducing the proposal for a directive, that it was impossible to “provide as from now and in all cases for total harmonization of the provisions relating to measuring instruments since a number of necessary preconditions are not yet fulfilled”.
               In the Commission's proposal for a directive the phrases “in so far as their control equipment permits” and “if they have the requisite equipment” did not appear. It is highly likely that those phrases were added during the process of approval in accordance with a logic which sought to restria rather than to extend the scope of obligations imposed on the Member States.
               That conviction is also derived from an analysis of the opinions of the Economic and Social Committee and of the Legal Committee of the European Parliament on the proposal for a directive. In the first opinion (of 25 February 1971), and more precisely in the section dealing with Article 2 (2), it is stated that “the principle that an application for approval may be submitted to one Member Sute only ... ought to be accompanied by a provision stating that the national provisions of that Member Sute should require such control” (Journal Officiel C 36, p. 10). In the opinion of the Legal Committee of the Parliament it is pointed out on the other hand that “it is with reservations that the Legal Committee approves the introduction of the method of optional harmonization ... Furthermore, the Legal Committee invites the Commission of the European Communities to submit as soon as possible suiuble proposals for the harmonization of the principles and objectives of national legislation in the sphere of weights and measures with a view to the unification of schemes at Community level, and also for the harmonization of national administrative procedures regarding the obligations of manufacturers and users, the scaie and scope of the controls, the organization of metrologica! services, the charges for controls and the control, procedures themselves” (European Parliament, Working Document 18/71, my italics).
            
         
               8. 
            
            
               To resolve the question of interpretation it is also appropriate to examine the correlation between the framework directive and the specific directive. The real scope of the provisions of the latter directive can be understood only if they are read in conjunction with the provisions of the former. On the other hand the framework directive clearly demonstrates the partially conditional, and thus contingent, nature of the obligations imposed on the Member Sutes.
               How that relationship expresses itself is made clear above all in the last recitals contained in the respective preambles. From the wording of those recitals it may be inferred that the framework directive fixes the general rules relating in particular to the procedures for EEC pattern approval and EEC initial verification as well as EEC methods of metrologicii control. The specific directive lays down the requirements relating to technical realization, functioning and precision, the control procedures and, where appropriate, the conditions under which existing national provisions may be replaced by technical requirements adopted by the Community.
               As confirmation of the complementary nature of the specific directive, Article 1 (4) of the framework directive should be mentioned. There it is provided that “for the categories of instruments with which they are concerned, separate directives will specify the measurement characteristics and the technical requirements for their design and functioning. They may also specify:
               Whether in all Member Sutes these instruments must undergo both EEC pattern approval and EEC initial verification or just one of those;
               The date on which national provisions conforming to the relevant separate directive are to replace completely the national provisions formerly applicable to new instruments of the same category.”
               Further confirmation of the relationship between the two directives, which I feel it is my duty to demonstrate, may be found in the introduction to Chapters IV and V of the annex to Directive 76/891 where it is suted that the EEC type-approval and EEC initial verification are to be granted “in accordance with the requirements of Directive 71/316/EEC”.
               Once again we are presented with unequivocal terms. But other factors of assessment may be deduced from the systematic coordination of the provisions and from an analysis of the objectives which they seek to pursue. Quamvis sit maniftstissimum edutum praetoris, attamen non est negligentia interpretano eius.
            
         
               9. 
            
            
               In that respect the features of the harmonization of laws in the matter of eliminating technical barriers to trade in the field of measuring instruments are of importance. That harmonization began with framework Directive 71/316 and then evolved into a “toul” or “optional” harmonization, according to the type of measuring instrument. In the case of “toul” harmonization the measure adopted to apply Community directives replace earlier national provisions and Member Sutes lose all their powers in that field. In the case of “optional” harmonization, on the other hand, Member Sutes may retain their own national provisions and these coexist with the Community rules. That demonstrates the reasonableness of an interpretation of the directive which differentiates the obligations of the Member Sutes according to the actual structure of their national administrations.
               An appraisal of the obligations deriving from Directive 76/891 in the light of its objectives leads to essentially the same considerations. Having regard to the fact that the situation in this case falls within the ambit of “optional” harmonization and not of “total” harmonization, I think it is beyond doubt that, as regards the effects of the directive, these, too, can be no more than partial, since it is normal for the total elimination of technical barriers to trade to be deferred to a later period. To arrive at any other conclusion it would have to be acknowledged that, interpreted in the light of the limitations contained in Articles 2 (2) and 8 (2) of the framework Directive 71/316, the directives for the elimination of technical barriers to trade have no purpose. It seems to me that a conclusion of that kind, which, amongst other things, runs counter to the rule of interpretation founded on the criterion of “effectiveness”(interpretado benigne facienda est ut res magis vakat quam pereat), is not justified. An important initial effect is that of precluding a Member State from preventing, prohibiting or restricting the placing on the market or entry into service of measuring instruments bearing the mark certifying EEC type-approval, thus ensuring that, as regards “harmonized” measuring instruments, there are no other restrictions on trade following the elimination of customs and quota barriers. That objective is entirely achieved. As the Commission itself has acknowledged, the absence of any specific Danish legislation relating to electrical energy meters does not enable the authorities of that Member Sute to hinder trade in that field either by preventing the placing on the market of instruments which satisfy the technical requirements laid down by the directive, or by subjecting such instruments to new controls at the frontiers. Consequently, there have not been any negative repercussions on manufacturers in other Member Sutes.
            
         
               10. 
            
            
               The Danish Government refers in its defence to the stance it adopted during the negotiations which led to the adoption of Directive 76/891. In particular it recalls the sûrement made on 11 March 1975 within the Council's working party. According to that statement, Denmark was unable to accept a directive which would oblige it to establish the administrative machinery necessary to carry out EEC controls and verifications. The sunce uken by the Danish Government was then recorded in another sutement of the Council and the Commission which is annexed to the Council minutes. It reads as follows: “The Council and the Commission note that the second sentence of Article 2 refers only to the electrical energy meters mentioned in the first sentence of the same article, and that the directive therefore does not oblige Member States to obtain EEC pattern approval for electrical energy meters or to submit them for EEC initial verification where no equivalent national controls are prescribed”. In the Danish Government's view that sutement should be interpreted as meaning that the directive imposes on Member Sutes not equipped with national administrative machinery for verifying and approving electrical energy meters, merely the obligation not to impede the marketing and the entry into use on its own territory of the meters subject to EEC controls in another Member Sute. The Commission thinks on the contrary, however, that the sutement concerns the way in which the Sute is obliged to organize its own administrative departments. The Member Sute, which is obliged to receive applications from interested manufacturen, to check the documenution and supervise the various suges of the technical investigation, might avail itself for that purpose of private laboratories and technicians.
               The Commission's argument must be rejected. In my view the interpretation of the statement is not open to doubt. It concerns Article 2 (2) of Directive 76/891 relating to electrical energy meters and clearly precludes Member States from being required to subject to controls meters to which the directive applies. Since there is no requirement of that nature the Member States are not even obliged to set up an appropriate administrative department.
               As I have already pointed out, that interpretation is perfectly in conformity with the requirements (existence of national technical and administrative machinery for controls) to which framework Directive 71/316 subordinates the obligation to carry out controls for approvals and initial verifications of measuring instruments. Once it is admitted that such is the content of the statement, the interpretation I have proposed finds confirmation in it. In that respect I would recall that the Court observed in its judgment of 18 February 1970 in Case 38/69 Commission v Italy [1970] ECR 47 (at paragraph 12) that “the scope and effect... (of Community measures) cannot be restricted by reservations or statements which might have been made in the course of drawing up the measure concerned”. It did not exclude, however, the use of statements of that nature in interpreting provisions.
            
         
               11. 
            
            
               In conclusion I propose that the Court dismiss the anion brought on 3 July 1981 by the Commission of the European Communities against the Kingdom of Denmark and that the Commission, having failed in its submissions, be ordered to pay the costs.
            
         (
            1
         )	Translated from the Italian.