C-263/95

The contested decision contained measures Relevant legislation concerning the procedure for attesting the conformity of various product families. The applicant claims that the measures infringe Directive 89/106/EEC on construction prod- ucts, 2 as amended by Directive 93/68/EEC 3 (hereinafter 'Directive 89/106'), inasmuch as the decision by the Commission specifying 2. Directive 89/106, also referred to as the the procedure for attesting the conformity 'construction products' directive, which was of products fails to take account of a number adopted by the Council in December 1988 of criteria laid down in Article 13(4) of and amended in 1993, seeks to remove barri- Directive 89/106. The contested decision is ers to the free movement of these products in the Community. The preamble to the directive states that there are requirements in * Original language: Spanish. the Member States relating, inter alia, to 1 — OJ 1995 L 129, p. 23. building safety, health, energy economy and 2 — Council Directive 89/106/EEC of 21 December 1988 on the protection of the environment that have a approximation of laws, regulations and administrative provi- sions of the Member States relating to construction products direct influence on the nature of construc- (OJ 1989 L 40, p. 12). tion products employed and are reflected in 3 — Council Directive 93/68/EEC of 22 July 1993 amending Directives 87/404/EEC (simple pressure vessels), national product standards, technical 88/378/EEC (safety of toys), 89/106/EEC {construction products), 89/336/EEC (electromagnetic compatibility), approvals and other technical specifications 89/392/EEC (machinery), 89/686/EEC (personal protective and provisions which, by their disparity, equipment), 90/384/EEC (non-automatic weighing instru- ments), 90/385/EEC (active implantable medicinal devices), hinder trade within the Community. The 90/396/EEC (appliances burning gaseous fuels), 91/263/EEC (telecommunications terminal equipment), 92/42/EEC (new removal of technical barriers by means of hot-water boilers fired with liquid or gaseous fuels) and essential requirements on safety and other 73/23/EEC (electrical equipment designed for use within certain voltage limits) (OJ 1993 L 220, p.1), my italics. aspects which are important for the general

Under the provisions of the directive, con- struction products may be placed on the market in Member States only if they are fit The conformity of a product with the har- for their intended use, that is to say they monised standards is checked by means of a have such characteristics that the works in procedure for attestation of conformity laid which they are to be incorporated, down in Article 13(3). Under Article 13(4), it assembled, applied or installed can, if prop- is for the Commission to specify, after con- erly designed and built, satisfy the essential sulting the Committee, the procedure to be requirements set out as objectives in Annex I used for a given product or family of prod- thereto. These essential requirements — ucts on the basis of certain criteria set out in which must be satisfied during an economi- that paragraph. cally reasonable working life and which gen- erally concern foreseeable reactions — are grouped under the following six headings: mechanical resistance and stability, safety in case of fire, hygiene, health and the environ- ment, safety in use, protection against noise, energy economy and heat retention. To take account of differences inter alia in levels of protection that may prevail at national level, Article 20(2) states that the provisions neces- classes of performance m a y be established sary for establishing the procedure for attest- for each essential requirement in the inter- ing conformity in mandates for standards are pretative documents and in the technical to be adopted in accordance with paragraphs specifications. 3 and 4 thereof: the representative of the Commission must submit to the Committee a draft of the measures to be adopted and the latter is to deliver an opinion within a time- limit laid down by the Chairman according to the urgency of the matter, by the majority laid down in Article 148(2) of the EC Treaty in the case of decisions which the Council is required to adopt on a proposal from the 'Harmonised standards' refers to the techni- Commission. The measures can be adopted if cal specifications adopted by the European

6. Germany claims that the contested decision is contrary to Directive 89/106 4. The decision contested by Germany was because essential procedural requirements adopted by the Commission in May 1995 in were infringed and because it violates Article order to determine the procedure for confor- 13(4) of the directive. I shall examine the mity attestation for certain products and applicant's pleas in that order. product families: thermal insulating materi- als, doors, windows, shutters, gates and related products, membranes and precast 6 — Case 41/83 Italy v Commission [1985] ECR 873, paragraph normal, lightweight or autoclaved aerated 30. In that case the Court held that any Member State may, in support of an application for annulment, plead infringe- concrete products. After determining the ment by the Commission of Article 90(2) of the Treaty, even procedure, the European standards commit- if the undertaking concerned is subject to the legislation of another Member State. tees were asked to specify the system of 7 — Case 166/78 Italy v Council [1979] ECR 2575, paragraphs 5 attestation of conformity in the relevant har- and 6. In that case the Court held that the application by the Italian Republic for annulment of certain provisions of two monised standards. The contested decision Council regulations was admissible, regardless of the unqualified affirmative vote cast by the Italian representative contains three articles and three annexes, the when the texts were adopted by the Council and even contents of which are examined in more though the Italian representative on the Management Com- mittee for Cereals had done the same when certain imple- detail later. menting measures were subsequently considered.

A — Infringement of essential procedural sent them between 14.09 hrs and 14.23 hrs requirements: delay in communicating docu- on 11 November. However, it argues that the ments, absence of an opinion by the Commit- English version of the documents was sent to tee and failure to state reasons all representatives on 10 November, that the latter had furthermore been in possession of the original draft decision since Septem- ber 1994 and that the latter had been dis- cussed at the twenty-seventh meeting of the Committee. It added that on 21 Octo- ber 1994 the applicant had presented a O n the delay in communicating documents counter-proposal drafted in German and English, which proved that it had detailed knowledge of the draft. The Commission argues that, in any event, the changes to the draft were small and of minor importance and therefore not sufficient to justify the applicant's claim that a half-day delay was 7. The applicant claims that the contested capable of affecting its attitude at the time of decision was adopted by the Commission in the discussion and vote in the Committee. breach of the rules of procedure of the Com- mittee, in particular paragraphs 6 and 7 of Article 2 thereof. The vote on the draft decision was on the agenda for the Commit- tee meeting of 30 November 1994. However, not only were the documents to be discussed and voted on not received by the German Permanent Representation but the German version of the draft decision was sent by fax to the German members of the Committee on 11 November, a day late. The Commis- sion's attention was drawn to this fact by let- ter of 29 November, in which the Head of the German Delegation on the Committee With regard to the letter of 29 Novem- requested postponement of the vote for that ber 1994, the defendant argues that it was reason. The applicant argues that those are unreasonable for Germany to request post- infringements of essential procedural ponement of a vote the day before the meet- requirements which had a decisive influence ing, even though that is permitted under the on the attitude of the Federal Republic of Committee's rules of procedure. Moreover, Germany throughout the negotiations. if the delay really had caused the applicant such harm, it should have repeated its request at the meeting instead of approving the agenda without reservation, taking part in the discussions and voting, which led the Chairman of the Committee to believe that Germany had withdrawn its request. The defendant concludes with regard to the first 8. In its statement of defence, the Commis- plea that if there were procedural defects sion acknowledges the slight delay in send- they were minor and in no way sufficient to ing the documents to the applicant, having justify annulment of the decision.

11. It has been established that the Commis- sion did not send the Permanent Representa- tion of Germany the text of the draft that was to be discussed and voted on, but that it did send the English version of the draft to the representatives of Member States on the As for its request for postponement of the Committee within the twenty-day time- vote on the draft, the applicant maintains limit. It has also been established that the that it was made in due form as the Commit- German version was sent to the German rep- tee's rules of procedure do not specify a resentatives late and that the Commission time-limit for exercising such a right. The did not postpone this agenda item to a later request was repeated orally at the meeting on meeting, or postpone the date of the meeting 30 November 1994, as evidenced by the sen- in order to comply with the time-limit, tence added to point 22 of the minutes of the despite the fact that Germany had duly twenty-eighth meeting when they were requested it to do so. adopted; similarly, it did not approve the agenda either, and took part in the discus- sions with the other delegations because of its interest in the draft, not because it had withdrawn its request.

The Commission's conduct was clearly in breach of the provisions of Article 2(6) and (7) of the rules of procedure of the Commit- tee, which state that the draft provisions referred to in Article 20(2) of Directive 10. With regard to the sentence inserted into 89/106 to be voted on must be sent to the the minutes when they were adopted, the Permanent Representatives of the Member Commission states in the rejoinder that 'the States as well as to their representatives on fact that this sentence appears in the minutes the Committee not later than twenty days does not necessarily mean that the German before the meeting is due to take place. If delegation ... refused to vote. In practice, that time-limit is not met, the item on the

Paragraph 6 of Article 2 of the Committee's rules of procedure thus ensures that when a draft provision is to be discussed with a view 13. Comparing the provisions in paragraphs to issuing an opinion the representations of 5 and 6 of Article 2 of the Committee's rules Member States on the Committee have suffi- of procedure, I note that paragraph 5 cient time to study it. If this were not so, imposes a time-limit of twenty days for the there would be a risk — especially in preparatory documents for a meeting and instances involving standards such as those any other working documents to be sent to in the present case, which are highly complex the Member States' representatives or alter- and may affect different national sectors of nates, with a copy to the Permanent Repre- administration — that the members of the sentation. In urgent cases, the Chairman may Committee would not be able to assemble all shorten this time-limit to a minimum of ten the information required to vote in full clear working days. However, the procedure knowledge of the facts. The fact that para- laid down in paragraph 6 stipulates that draft graph 7 provides for two solutions where the provisions to be voted on by the Committee twenty-day time-limit is not met (the item must be sent to the Permanent Representa- may be placed on the agenda of a meeting at tions of the Member States as well as to their a later date or, if requested by a representa- representatives on the Committee not later tive of a Member State, the date of the meet- ing may be postponed) confirms my opinion as to the importance of compliance with the time-limit in shaping the intentions of the 8 — Case T-123/95 B. v Parliament [1997] ECR-SC II-697, para- graph 32. Member States.

15. I would also state that this is not simply English, I think that it would be going too a case of there being a formal distinction far to presume the same for the two repre- between notices convening meetings in gen- sentatives of that country on the Committee, eral and those convening meetings where or indeed for the experts. there will be a vote on the adoption of cer- tain provisions. There is another important difference, namely that where provisions such as those in issue, whose purpose is to define the conformity attestation procedure, are to be adopted the procedure that the Commission must follow to approve the 17. I also consider that it is irrelevant in this draft depends on whether the Committee has context that, as alleged by the Commission, delivered a favourable opinion. the applicant had taken part in previous meetings during which the original draft decision had been discussed and that the changes made to the draft as a result of those discussions were small and of minor impor- tance. In fact, the number and, above all, the extent of the changes could only be appreci- ated by the representatives on the Commit- tee and by the experts once they had received the German version of the text to be discussed and voted on on 30 Novem- ber 1994 and, as I said, this was received late. Even though the delay was minor, I believe that the applicant's claim that it was capable 16. When assessing the impact that this of affecting its attitude at the time of the dis- breach of procedure might have had on the cussion and vote in the Committee is well content of the contested decision, I believe founded. that it is irrelevant that the Commission sent the English version of the draft to the repre- sentatives of Germany on the Commission within the twenty-day time-limit. Article 3 of Council Regulation N o 1 9 requires that documents which the institutions send to a Member State be drafted in the language of 18. The applicant is also right in claiming that State. Compliance with that obligation that its request to have the meeting post- assumes special importance in this case poned was made in due form and that the because under Article 19(2) of Directive Commission ought to have granted it. The 89/106 the two representatives of each Mem- rules of procedure do not specify a time- ber State may be accompanied by experts. limit within which Member States must exer- While the Commission may assume that cise this option. Moreover, the fact that Ger- officials from the Permanent Representation many requested postponement on the day of Germany have good knowledge of before the meeting is, in my view, sufficient indication that the delay in sending the text in German was clearly at that time making it difficult to prepare adequately for the meet- 9 — Council Regulation No 1 of 15 April 1958 determining the ing on the date it was due to take place. It is languages to be used by the European Economic Commu- nity (OJ, English Special Edition 1952-1958, p. 59). therefore unnecessary to ascertain whether

On the absence of an opinion by the Com- mittee

20. Germany claims that the contested decision was adopted in breach of Article 21. The view of the Commission on this 20(2) to (4) of Directive 89/106 inasmuch as subject, based on the minutes of the meeting, the vote on the draft at the meeting on is that the required majority did vote in 30 November did not have the majority favour of adopting the draft and that, while required by the third sentence of Article it is true that four delegations expressed a 20(3), which states that the opinion must be 'reservation pending examination', this has delivered by the majority laid down in no effect on the agreement that they Article 148(2) of the Treaty in the case of expressed on 30 November 1994. It explains decisions which the Council is required to that, as some delegations had voiced their

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Finally, the Commission argues that even if no decision was adopted on 30 Novem- ber 1994 or under the subsequent written procedure the failure was remedied on The Commission further states that although 29 May 1995 by the adoption of the minutes, a written procedure for adopting delibera- to which were annexed the final versions of tions is not expressly provided for in the the Commission's declarations, and that it Committee's rules of procedure they do not was irrelevant in that respect that the adop- prohibit it, and such a procedure, which is tion of the contested decision was not men- now part of the range of procedures used by tioned in the agenda for the twenty-ninth the Commission 12 and by the Council, 13 meeting because it was the definitive record has been systematically incorporated into the of the result of a vote that had commenced rules of procedure adopted by recently- on 30 November, when that item was on the created committees in accordance with the agenda.

minutes — and none of the parties contests 24. In November 1994, the majority this — the Chairman recorded the following required to adopt the decision was 54 votes. result regarding the delegations' views on According to my calculations, there were 15 giving an opinion on the draft decision: votes against and 38 for. There were also 23 votes in favour subject to the outcome of examination of the two declarations to be made by the Commission. It is clear that whether there was a majority in favour of adopting the draft decision and, conse- 'I. Yes, and would later give opinion on the quently, whether the draft was in fact content of the two declarations: I, E, DK, P, approved depends on how those latter votes UK, L. are to be counted.

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as valid because the four Member States ulti- provide for a procedure of this type for the mately confirmed their initial vote? adoption of agreements by those collegiate bodies, and the procedure laid down in Article 20(3) and (4) of the directive is the same as Procedure III, variant a), of the Comitology Decision. However, neither the Comitology Decision adopted in 1987 nor Directive 89/106 mentions the written pro- 27. I believe that the reply must still be no, cedure as a method of adopting agreements for various reasons that I will explain below. by the committees set up under those texts, and the Committee's rules of procedure, adopted in 1989, do not refer to any other internal rules which might also be applicable, specifying a procedure of this type.

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that rule, even on the basis of a larger major- of the Commission's explanations about ity than is laid down for the adoption or their drafting and approval. In any event, amendment of the Rules of Procedure, unless there are two reasons for rejecting the Com- it formally amends those rules'. 17 mission's argument on this point. First, if the opinion was not adopted on 30 November 1994 and it was not possible to use the writ- ten procedure, the vote ought to have taken place at the meeting where it appeared on the agenda, which was not the case at the meet- 29. That ruling removes the need for me to ing held on 29 May 1995; second, if the examine whether all the delegations agreed Commission claims that the final adoption of to proceed in such a manner or whether the the draft occurred on the latter date, then it German Delegation expressed its opposition should state how and when the three Mem- on the actual day of the meeting; there is in ber States that acceded in the meantime fact a difference of opinion between the par- voted. ties on this point that it is impossible to settle by referring to the minutes of the meeting, the obstacle being again the Com- mission's statement that the relevant sen- tence was added to the minutes at the request of Germany and that it did not cor- respond to the facts. 31. For those reasons, I consider that the plea of absence of an opinion by the Com- mittee is also well founded.

35. It is settled case-law that ‘the statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the institution which enacted the measure so as to inform the per- sons concerned of the justification for the 33. The Commission contends that, measure adopted and to enable the Court to although brief, the reasoning is adequate exercise its powers of review. It is not neces- given the nature of the measure and the con- sary, however, for details of all relevant fac- text in which it was adopted, and that any tual and legal aspects to be given, in so far as attempt to provide a more detailed statement the question whether the statement of the of reasons would have been swamped by grounds for a decision meets the require- technical details concerning products and ments of Article 190 of the Treaty must be product families. The essential element of the assessed with regard not only to its wording decision lay in the choice between the two but also to its context and to all the legal procedures for attesting the conformity of a rules governing the matter in question'. 18 product and was contained in Articles 1 and The Court has also observed that ‘the state- 2 of the decision, combined with Annexes 1 ment of the reasons on which regulations are and 2, while Article 3 played only a second- based is not required to specify the often ary role. The Commission also states that the very numerous and complex matters of fact Member States were closely involved in the or of law dealt with in the regulations, pro- drafting of the measure and were aware of vided that the latter fall within the general the considerations on which it was based, scheme of the body of measures of which which was a further justification for the they form part. Consequently, if the con- brevity of the reasons. tested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution.’ 19

36. The fact that the applicant Member State question with similar earlier decisions. It is was involved in drawing up the contested further necessary that the applicant should decision has sometimes been considered by be enabled in practice to defend its rights the Court to be sufficient reason to reject the and the Court should be able effectively to plea of failure to state reasons. This can be exercise its power of review on the basis of illustrated by various judgments in which the the statement of reasons.' 21 Court held that '... it is not necessary ... for details of all relevant factual and legal aspects to be given, in so far as the question whether the statement of the grounds for a decision meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in 37. It is true, as the Commission concedes, question ... This is a fortiori the case where that the statement of reasons for the con- the Member States have been closely associ- tested decision is brief. It is therefore neces- ated with the process of drafting the con- sary to see whether, having regard to the tested measure and are thus aware of the rea- context and to the legal rules governing the sons underlying that measure'. 20 matter in question, the reasons clearly and unequivocally reflect the reasoning of the Commission, which enacted the contested decision, and enable the persons concerned to know the justification for the measure and the Court to exercise its power of review. The opposing viewpoint can be illustrated by an example drawn from a 1983 judgment in which the Court held that '... by imposing upon the Commission the obligation to state reasons for its decisions, Article 190 is not taking mere formal considerations into account but seeks to give an opportunity to 38. Two procedures for attestation of con- the parties of defending their rights, to the formity are laid down in Article 13(3) of Court of exercising its power of review, and Directive 89/106. In one, the manufacturer to Member States and to all interested ensures that its products conform to the rel- nationals of ascertaining the circumstances in evant technical specifications, while in the which the Commission has applied the other an approved certification body is also Treaty. Thus it is not sufficient that the involved. The procedure to be applied is Member States, as addressees of the decision, chosen by the Commission on the basis of are aware of the reasons as a result of their certain criteria listed in Article 13(4), which participation in the preliminary procedure include the importance of the part played by and that the applicant, the person directly the product with respect to the essential and individually concerned, is able to deduce requirements, in particular those relating to these reasons by comparing the decision in health and safety. The essential requirements

39. The contested decision is in fact the first to have been adopted by the Commission for the purpose of specifying the conformity attestation procedure applicable to certain families of construction products. 22 Leaving Article 3 states that the conformity attesta- aside the preamble, which simply cites the tion procedure set out in Annex 3 is given in texts of certain articles of Directive 89/106, the mandates for standards. Annex 3 defines the decision contains three articles and three a total of eleven product families, devoting annexes. Article 1 states that the attestation two sections to each. In the first section, of conformity of the products set out in C E N and Cenelec are requested to specify, Annex 1 is by means of a procedure whereby for each product and use indicated, the sys- the manufacturer alone is responsible for a tem of attestation of conformity that is factory production control system ensuring assigned to it in the relevant harmonised that the product is in conformity with the standards. The second section contains two relevant technical specifications, whilst paragraphs. The first (2.1) lays down certain conditions to be applied by C E N in the specifications of the conformity attestation 22 — It is far from being the lase since then, the Commission has system. The second (2.2) contains instruc- published to date no less than 18 other decisions, all con- tions addressed to the approved body cerning the procedure for attesting the conformity of con- strueüonproduets pursuant to Article 20(2) of Directive whereby that body must, in the case of cer- 89/106. These are Decisions 95/467/EC on chimney stacks, tain systems, restrict itself in the initial type- gypsum products and structural bearings (OJ 1995 L 268, p. 29); 96/577/EC on fixed fire-fighting systems (OJ 1996 testing of the product to checking certain L 254, p. 44); 96/578/EC on sanitary appliances (OJ 1996 L 254, p. 49); 96/579/EC on circulation fixtures (OJ 1996 characteristics, these being different for each L 254, p. 52); 96/580/EC on curtain walling (OJ 1996 product family. L 254, p. 56); 96/581/EC on geotextiles (OJ 1996 L 254, p. 59); 96/582/EC on structural sealant glazing systems and metal anchors for concrete (OJ 1996 L 254, p. 62); 97/161/EC on metal anchors for use in concrete for fixing lightweight systems (OJ 1997 L 62, p. 41); 97/176/EC on structural timber products (OJ 1997 L 73, p. 19); 97/177/EC on metal injection anchors for use in masonry (OJ 1997 L 73, p. 24); 97/462/EC on wood-based panels (OJ 1997 L 198, p. 27); 97/463/EC on plastic anchors for use in concrete and masonry (OJ 1997 L 198, p. 31); 97/464/EC on waste water engineering products (OJ 1997 L 198, p. 33); 97/555/EC on cements, building limes and other hydraulic binders (OJ 1997 L 229, p. 9); 97/556/EC on external thermal insulation composite systems/kits with rendering (OJ 1997 L 229, p. 14); 97/597/EC on reinforcing and prestrcssing steel for concrete (OJ 1997 L 240, p. 4); 40. I believe that in the light of the context 97/638/EC on fasteners for structural timber (OJ 1997 L 268, p. 36); and 97/740/EC on masonry and related prod- and the relevant legal rules the statement of ucts (OJ 1997 L 299, p. 42). reasons in the preamble to the contested

decision may be regarded as adequate in B — Infringement of Article 13(4) of Direc- respect of both its provisions and Annexes 1, tive 89/106 2 and 3, points 1 and 2.1. However, in the case of point 2.2 of Annex 3, the contested decision gives no reasons and no indication at all why the Commission decided that, when performing the initial type-testing of the product, which is a method of checking compliance common to all certification sys- tems, the approved body must restrict itself 44. The applicant argues that when the to checking certain characteristics of the Commission chooses the procedure for attestation of conformity it must also indi- product only, to the exclusion of others. cate the characteristics of the product that must be checked during the initial type- testing carried out by an approved body. When the procedure to be followed is speci- fied, the relevant essential requirements must be set out in the Commission's decision, 41. I am quite ready to agree that it would according to their importance for the pro- be unreasonable to require specific reasons cedure. The contested decision contains only for each of the decisions of a technical nature an incomplete list of the relevant characteris- adopted in the contested measure. However, tics of the product, however. The Commis- I consider that the absence of even the slight- sion did not specify what other procedure est indication of the reasons which led the would be used to examine the essential Commission to impose this restriction pre- requirements excluded from the decision, as vents those concerned from knowing the jus- well as the important characteristics of the tification for the measure and leaves the product. To sum up, the allegations by the Court unable to exercise its power of review. German Government against the Commis- sion are, first, that when specifying the initial type-testing conditions, only some aspects of health protection were included in the decision, whereas they appear in Article 13(4)(a) of Directive 89/106, and, second, that the essential requirement concerning 42. For those reasons I consider that the plea health and protection of the environment of failure to state reasons is also well was not taken into account at all for some founded. product families and only selectively and incompletely for others.

well as the factors to be taken into account thermal insulating materials, the least danger- when implementing these procedures. The ous materials were subject to the least oner- mandates that the Commission has to give to ous conformity attestation procedure while European standards bodies specify the char- the materials that could pose a fire hazard acteristics of the product for which harmon- were subject to the procedure involving ised standards are to be developed in order additional checks by a certification body. As to ensure that it is fit for its intended pur- for the principle of proportionality, the pose, such fitness having to be measured Commission argues that it applies through- against the yardstick of the essential require- out Community law, and consequently also ments. In contrast, the procedures for attes- applies as regards the organisation of the tation of conformity focus on the impor- control procedure. tance of the part played by the product in relation to the essential requirements and hence the choice between various control procedures. The defendant claims that it would be impossible in practice to subject each of a product's properties to a compli- cated control procedure, especially since 48. Under Article 13(4) of Directive 89/106, paragraph 2 of Article 13(4) of Directive it is for the Commission to choose the pro- 89/106 requires the principle of proportion- cedure for attesting the conformity of a ality to be applied, by stating that in each product, in other words to decide whether case the least onerous procedure consistent the manufacturer alone will ensure that with safety is to be chosen. products conform to the relevant technical specifications or whether an approved certi- fication body should also be involved. This it does after consulting the Committee and on the basis of the following criteria: the impor- tance of the part played by the product with respect to the essential requirements, in par- ticular those relating to health and safety; the 46. In the reply, the applicant argues that the nature of the product; the effect of the vari- principle of proportionality only applies to ability of the product's characteristics on its the choice of procedure, but not to the con- serviceability; the susceptibility to defects in tent, that is to say, the characteristics to be the product manufacture. O n all these checked and the implementation of the pro- points, the Commission must take account cedures as such. of the provisions set out in Annex III.

51. In point 1 of Annex 3 of the contested decision, C E N and/or Cenelec are requested to specify the system of attestation of con- formity in the relevant harmonised standards for all factory-made and in situ formed ther- mal insulating products, whatever their intended use. The thermal insulating materi- als mentioned in Annex 2, those for which the reaction to fire performance may change 50. To better illustrate the way in which the during the production process, remain sub- contested decision is structured, I will take ject to conformity attestation system N o 1, the example of thermal insulating materials. which is the most complex and which corre- Those that belong to class A, B or C, 23 for sponds to the system laid down in Annex which the reaction to fire performance 24 is III, point 2(i), of Directive 89/106, without not susceptible to change during the produc- the further testing of samples taken at the tion process, 25as well as those that belong to factory. In practice, this means that the attes- class D, E or F, appear in the list in Annex 1, tation of conformity of the product in this meaning that, for the attestation of confor- case is specified by an approved body on the mity, the manufacturer alone is responsible following basis: for the factory production control system ensuring that the product conforms to the technical specifications. In contrast, products in class A, b or C, for which the reaction to fire performance is susceptible to change dur- ing the production process, appear in Annex (a) Tasks for the manufacturer: 2; consequently, the attestation of confor- mity of these products will, in addition to a factory production control system operated by the manufacturer, involve an approved

52. For the purposes of specifying the con- formity attestation system, the thermal insu- lating products appearing in Annex 1 are in turn divided into two classes according to their reaction to fire. 53. In point 2.1, the Commission lays down the conditions to be applied by C E N in specifying the system of attestation of con- formity: the specification for the system should be such that it can be implemented Thus, those that belong to class A, B or even where performance does not need to be C are subject to conformity attestation sys- determined for a certain characteristic tem N o 3, which is the one laid down in because at least one Member State has no Annex III, point 2(ii), second possibility, in legal requirement at all for such characteris- other words the declaration of conformity of tics. In those cases, the checking of such a the product by the manufacturer is made on characteristic must not be imposed on the the basis of: manufacturer if he does not wish to declare the performance of the product in that respect.

(1) initial type-testing of the product by an approved laboratory,

54. In point 2.2, it is stated that for products (2) and factory production control, coming under system 1 and system 3 the task

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of the approved body as regards the initial (c) regarding the essential requirement type-testing of the product is limited to the 'hygiene, health and the environment': following characteristics: water permeability and dangerous 1 substances emission level.

27 — Corresponding respectively to the product classes 'no con- tribution to fire', 'very limited contribution to fire' and 26 — Cited in footnote 23. 'limited contribution to fire'.

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Conclusion

O n those grounds, I propose that the Court of Justice:

(1) annul Commission Decision 95/204/EC of 31 May 1995 implementing Article 20(2) of Council Directive 89/106/EEC on construction products;

(2) order the Commission to pay the costs, pursuant to Article 69(2), first para- graph, of the Rules of Procedure, since the applicant has succeeded in its sub- missions.