1 By application lodged at the Court Registry on 7 August 1995, the Federal Republic of Germany brought an action under Article 173 of the EC Treaty, seeking annulment of Commission Decision 95/204/EC of 31 May 1995 implementing Article 20(2) of Council Directive 89/106/EEC on construction products (OJ 1995 L 129, p. 23, hereinafter `the contested decision').
2 That decision defines the procedures for attesting the conformity of construction products with the relevant technical specifications. Legislative framework Directive 89/106
3 Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12) seeks to remove barriers to the free movement of construction products.
4 The fourth recital in the preamble to that directive states that to the extent that technical barriers in the construction field cannot be removed by mutual recognition of equivalence among all the Member States, their removal should follow the new approach set out in the Council resolution of 7 May 1985 (OJ 1985 C 136, p. 1), which calls for the definition of essential requirements on safety and other aspects which are important for the general well-being, without reducing the existing and justified levels of protection in the Member States.
5 Article 1(2) of Directive 89/106 defines a `construction product' as `any product which is produced for incorporation in a permanent manner in construction works, including both buildings and civil engineering works'.
6 Article 2(1) of Directive 89/106 provides: `Member States shall take all necessary measures to ensure that the products referred to in Article 1, which are intended for use in works, may be placed on the market only if they are fit for this intended use, that is to say they have such characteristics that the works in which they are to be incorporated, assembled, applied or installed, can, if properly designed and built, satisfy the essential requirements referred to in Article 3 when and where such works are subject to regulations containing such requirements.'
7 The fifth recital in the preamble to Directive 89/106 states that the essential requirements constitute both the general and specific criteria with which construction works must comply. Such requirements are to be understood as requiring that the said works conform with an appropriate degree of reliability with one, some or all of these requirements when and where this is laid down in regulations.
8 Those essential requirements, which, according to Article 3(1) of Directive 89/106, are set out in terms of objectives in Annex I thereto, are as follows: - mechanical resistance and stability; - safety in case of fire; - hygiene, health and the environment; - safety in use; - protection against noise; - energy economy and heat retention.
9 In addition to existing national technical standards, Directive 89/106 provides for development of European technical standards, which may be: (a) harmonised standards established by the European standards organisations (CEN, the European Committee for Standardisation, and Cenelec, the European Committee for Electrotechnical Standardisation) on the basis of mandates given by the Commission (the `standardisation mandates' referred to in Article 7(1) of Directive 89/106); (b) European technical approval issued by the organisation of approval bodies designated by the Member States (EOTA, European Organisation of Technical Approvals), which is a `favourable technical assessment of the fitness for use of a product for an intended use, based on fulfilment of the essential requirements for building works for which the product is used' (Article 8 of Directive 89/106). That organisation also operates on the basis of mandates, issued by the Commission, for establishing guidelines for European technical approval for a product or family of products (Article 11(1) of Directive 89/106).
10 Article 3(3) of Directive 89/106 provides that the necessary links between the essential requirements and the standardisation mandates, mandates for guidelines for European technical approval or the recognition of other technical specifications are to be established in interpretative documents in which the essential requirements are given concrete form. Those interpretative documents are to be drawn up by technical committees in which the Member States participate.
11 Under Article 13(2) of Directive 89/106, products that are the subject of an attestation of conformity are presumed to be in conformity with technical specifications. That conformity is to be established by means of testing or other evidence on the basis of the technical specifications in accordance with Annex III.
12 Under Article 13(3) and (4) of Directive 89/106: `3. The attestation of conformity of a product is dependent on: (a) the manufacturer having a factory production control system to ensure that production conforms with the relevant technical specifications; or (b) for particular products indicated in the relevant technical specifications, in addition to a factory production control system, an approved certification body being involved in assessment and surveillance of the production control or of the product itself. 4. The choice of the procedure within the meaning of paragraph 3 for a given product or family of products shall be specified by the Commission, after consultation of the committee referred to in Article 19, according to: (a) the importance of the part played by the product with respect to the essential requirements, in particular those relating to health and safety; (b) the nature of the product; (c) the effect of the variability of the product's characteristics on its serviceability; (d) the susceptibility to defects in the product manufacture; in accordance with the particulars set out in Annex III. In each case, the least onerous possible procedure consistent with safety shall be chosen. The procedure thus determined shall be indicated in the mandates and in the technical specifications or in the publication thereof.'
13 Article 19 of Directive 89/106 sets up a Standing Committee on Construction, made up of two representatives appointed by each Member State and chaired by a representative of the Commission. The representatives may be accompanied by experts. Article 19(3) provides: `The committee shall draw up its own rules of procedure.'
14 Consultation of the Standing Committee on Construction is provided for in many of the provisions of Directive 89/106. In particular, under Article 13(4), it must be consulted before the Commission determines the procedure for the attestation of conformity of a product.
15 In a number of cases set out in Article 20(2) of Directive 89/106, including establishment of the procedure for attesting conformity, a specific procedure is prescribed in Article 20(3) and (4), in the following terms: `3. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote. 4. The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee. If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by qualified majority. If, within three months of the proposal being submitted to it, the Council has not acted, the proposed measures shall be adopted by the Commission.' The rules of procedure of the Standing Committee on Construction
16 The Standing Committee on Construction adopted its rules of procedure at its third meeting, on 7 and 8 October 1989.
17 Under Article 2(4) to (7) of those rules of procedure: `4. The Chairman shall send the notice convening the meeting, the draft agenda, preparatory documents and other working papers to the Member States' representatives on the Committee in accordance with the procedure laid down in Article 12, paragraph 3, of these rules of procedure. 5. The limit is 20 days for preparatory documents and any other working documents. In urgent cases, the Chairman may shorten the abovementioned period of notice; however, a minimum of ten clear working days' notice must always be given. 6. However the draft provisions according [to] Article 20(2) of the Directive to be voted shall be sent to the Permanent Representations of the Member States as well as to their representatives on the Committee not later than 20 days before the meeting is due to take place. 7. If the time-limit provided for under paragraph 6 is not met, either the relevant point of the agenda is postponed to a further meeting or the date of the meeting can, at the request of the representative of a Member State, be postponed to a date in keeping with these time-limits.'
18 Article 9 of the rules of procedure provides: `Each national delegation has a voting right according to Article 148 of the Treaty'.
19 Under Article 10(2) to (5) of the rules of procedure, relating to minutes of meetings: `2. In addition, summary minutes shall be prepared after each meeting showing the 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 cases on the occasion of a following meeting. 4. Minutes shall be submitted to the Committee for approval only if the draft version has been sent to the representatives at least 20 days before that meeting. 5. Proposed amendments to the draft minutes should as far as possible be submitted in writing one week before the meeting at which the document in question is to be approved.'
20 Article 12(3) of the rules of procedure provides that all correspondence is to be sent directly to the representatives on the Committee, with a copy to the offices of the 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 its application for annulment. The first two allege irregularities in the procedure before the Standing Committee on Construction, in that the preparatory documents for the meeting of 30 November 1994 were not sent within the time-limit laid down in its rules of procedure and in that no decision was taken by the Standing Committee 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 account of important characteristics or properties of the products, linked to essential requirements. The fourth plea alleges breach of the duty to state reasons, on the ground that the contested decision does not indicate the reasons for which a series of essential requirements were not taken into consideration in the context of the procedure for attesting conformity. The first plea
22 In its first plea, the Federal Republic of Germany criticises the Commission for not having sent within the prescribed time-limit the draft Commission Decision which was to be discussed at the meeting of the Standing Committee on Construction on 30 November 1994 and on which the Committee was to deliver its opinion. The German version of that draft, it states, was not sent to the office of its Permanent Representative, nor was it received by fax by the German members of the Standing Committee on Construction until 11 November 1994, thus 19 days before the meeting and not 20 as provided in Article 2(6) of the rules of procedure. The German delegation pointed out the delay in writing the day before the Standing Committee's meeting and requested that the vote be postponed. It repeated that request during the meeting. The Federal Republic of Germany stresses that the delay in sending the draft constitutes a substantive procedural defect, rendering the opinion of the Standing Committee on Construction void. It states that if the German delegation had been in possession of the draft decision in good time, its members would have been in a better position to discuss it.
23 The Commission acknowledges the slight delay in sending the draft to the German delegation, 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, all delegations had been in possession of the original draft decision (Construct 94/124) since September 1994, including the German delegation, which had a German version. The German delegation had, moreover, drafted a counter-proposal in German and English, demonstrating that it had extremely detailed knowledge of the draft. The `Rev. 1' version, which was to be distributed, contained only a few small changes with regard to the original text of September 1994, and none of those changes concerned the criticisms put forward by the Federal Government in its application. The procedural defect is thus of minimal importance and had no effect on discussion or voting within the Committee. Finally, the Commission argues that it is unreasonable to request postponement of a vote the day before a meeting is due to take place. It states that the German Government did not repeat its request during the meeting but approved the agenda without reservation, took part in the discussions and voted.
24 The Federal Republic of Germany considers, however, that sending the text in English did not comply with Article 3 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59) and was inadequate from a substantive point of view, since it was only when the German text was received that the Commission's position became clear. It maintains, moreover, that the German delegation requested postponement of the vote by letter of 29 November 1994, repeated that request at the meeting and had the minutes corrected so that its refusal to vote at the meeting was noted.
25 The Commission disputes the significance of the amendment to the minutes. It stresses that it makes subsequent additions of that kind, which a delegation wishes to have included in the minutes, without examining their content, since it would otherwise be impossible for the Commission and the Member States to cooperate in a climate of trust.
26 It is common ground that the draft decision to be discussed at the meeting on 30 November 1994 was not sent to the office of the Permanent Representative and that only after the time-limit had expired was it sent to the Federal Republic of Germany's representatives on the Standing Committee on Construction, contrary to Article 2(6) of the rules of procedure. It is also established that the Federal Republic of Germany formally requested postponement of the vote by letter of 29 November and that the Commission did not take account of that request, contrary to Article 2(7) of the rules of procedure.
27 The sending of an English version of the document to the German delegation within the time-limit clearly does not constitute compliance with Article 3 of Council Regulation No 1, under which documents sent by an institution to a Member 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 the office of the Federal Republic of Germany's Permanent Representative, as provided for in Article 2(6) of the rules of procedure.
29 As regards the Commission's argument that the request for postponement should have been made at the meeting, Article 2(7) of the rules of procedure makes no provision for such a requirement when the request for postponement has already been made by letter. None the less, it appears from the minutes of the meeting as amended at the request of the Federal Republic of Germany and subsequently approved at the meeting of 29 May 1995, which is the only authentic record, that the German representatives did in fact repeat their request for postponement of the 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 from a comparison between Article 2(5) and (6) of the rules of procedure that a distinction is drawn between ordinary working documents and the draft provisions referred to in Article 20(2) of Directive 89/106. Whilst ordinary working documents are sent to the Member States' representatives and alternates on the Standing Committee on Construction, with a copy for the offices of the Permanent Representatives, and whilst, under paragraph 5, the chairman may in urgent cases shorten the period of notice to 10 clear working days, paragraph 6 specifies that drafts of the provisions referred to in Article 20(2) of Directive 89/106 to be voted are to be sent to the offices of the Permanent Representatives of the Member States as well as to their representatives on the Committee not later than 20 days before the meeting is due to take place, without there being any indication that such period of notice can be shortened.
31 That requirement for the document to be sent separately to the offices of the Permanent Representatives of the Member States and to their representatives on the Committee, taken together with the fact that there is no possibility for shortening the period of notice, is a sufficient indication of the intention to ensure that Member States should have the time necessary to study these documents, which may be particularly complex and may require considerable contact and discussion between different administrative authorities, or consultation of experts in various fields or of professional organisations.
32 It must therefore be held that the adoption of the opinion of the Standing Committee on Construction, without regard to the obligation to send the draft document to its two separate addressees within the time-limit laid down and without the vote having been postponed despite the request made by a Member State, is vitiated by infringement of essential procedural requirements, with the result 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.