C-272/97
ECLI:EU:C:1998:621
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O P I N I O N O F ADVOCATE GENERAL COSMAS delivered o n 17 D e c e m b e r 1998
I — Introduction that directive before 1 January 1993 and that they are forthwith to inform the Commission thereof.
1. In this action under Article 169 of the EC Treaty, the Commission is asking the Court for a declaration that, by failing to adopt 3. Since the above time-limit expired without within the prescribed period all the measures the Commission receiving any notification or necessary to comply with Council Directive other information relating to the adoption by 90/605/EEC of 8 November 1990 amending the German authorities of measures trans Directive 78/660/EEC on annual accounts posing Directive 90/605 into national law, it and Directive 83/349/EEC on consolidated sent a letter of formal notice to the German accounts as regards the scope of those Direc Government on 12 March 1993. In its reply tives, 1 the Federal Republic of Germany dated 2 June 1993, the German Government has failed to fulfil its obligations under that informed the Commission that it had begun directive. the procedure for transposing the directive. In the absence of more explicit information regarding transposition, the Commission sent a reasoned opinion to the German Govern ment calling on it to adopt the measures ne cessary in order for it to comply with its obli gations arising from the directive within two II — Facts and procedure months. After that period had expired without the German Government replying to the rea soned opinion, the Commission brought the present action, in which it seeks from the Court a declaration that, by failing to adopt within the prescribed period all the measures necessary to comply with Directive 90/605, 2. Article 3(1) of Directive 90/605 provides the Federal Republic of Germany has failed that the Member States are to bring into force to fulfil its obligations under the EC Treaty, the laws, regulations and administrative pro together with an order for costs against that visions necessary for them to comply with State. The German Government contends that the Court should dismiss the action as inad missible or, in the alternative, as unfounded and order the Commission to pay the * Original language: Greek. 1 — OJ 1990 L 317, p. 60. costs.
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III — Admissibility of the action fore did not possess the full text and the grounds of the reasoned opinion at the time of the relevant meeting, nor could they col- lectively determine them at that meeting. The detailed text was not drawn up until after the Commissioners had met. According to the German Government, the above procedure 4. The German Government submits that the directly infringes Article 16 of the Rules of action is inadmissible because the reasoned Procedure of the Commission. While that
opinion of 13 June 1994 was drawn up in provision might refer only to the acts listed contravention of the principle of collegiality, in Article 189 of the Treaty, reasoned opin- a principle laid down by Article 163 of the ions nevertheless should also be regarded as EC Treaty and Article 16 of the Rules of Pro- covered by it because of their particular cedure of the Commission. 2 The German importance. Accordingly, the infringement of Government does not rule out the possibility essential procedural requirements when the that the reasoned opinion was adopted by reasoned opinion was adopted must result in way of delegation.
However, in that case the the action being inadmissible. decision adopted is invalid on two grounds: first, the special procedure and the publicity requirements which are laid down for del- egated decisions were not adhered to and, secondly, since the reasoned opinion is a deci- sion of principle, it cannot in any event have been adopted under delegated powers but only by the Commission acting as a college. 5. The Commission maintains that the con- The German Government states that, under tested reasoned opinion was adopted by the the principle of collegiality, decisions must be Commission as a college. It is true that the adopted jointly, a requirement which means Commissioners made their decision without that when the collegiate body — in this having the full text of the final draft of the instance the Commission — meets, its mem- reasoned opinion, but they acted on the basis bers must be aware of both the operative part of the record of infringement (fiche and the grounds of the decision being adopted. d'infraction), which takes the form of a table The facts which emerged when Cases containing all the necessary information and C-191/95 and C-186/97 were heard lead the the grounds for the decision proposed for German Government to the conclusion that adoption. Therefore, the Commission main- the text submitted to the Commissioners as a tains, its members as a college drew up a draft decision for the adoption of a reasoned 'decision of principle' which was implemented opinion was, in essence, an administrative by the competent staff under the responsi- document containing merely the number of bility and supervision of the competent Com- the directive in question, the name of the missioner. The administrative implementation infringing Member State and the proposal, of the above decision of principle does not consisting of a single word, of the responsible amount to delegation to a member of the staff that a decision to issue a reasoned opinion Commission under the first paragraph of
should be adopted. The Commissioners there- Article 11 of the Rules of Procedure, nor to the assignment of the drafting of the final text to a single Commissioner under the second paragraph of that article. The procedure fol- 2 — These are the Rules of Procedure of 17 February 1993 lowed is justified by the Commission's work- (OJ 1993 L 230, p. 15), which were in force at the time when the reasoned opinion at issue was adopted. load and the breadth of its discretion.
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6. The Commission adds that reasoned opin Opinions, whose essential points I will now ions are merely preparatory acts which do summarise. not have binding effect. Therefore, the Court's case-law relating to the adoption of legal acts which have binding effect cannot be trans posed to the procedure for drawing up rea soned opinions, nor can it be maintained that the first paragraph of Article 16 of the Rules 8. I consider that the starting point for dealing of Procedure applies to them. The Commis correctly with the question raised is an under sion also considers that, even if a procedural standing of the position held in the Commu error is found to have occurred in the drawing nity legal system by the principle that the up of the reasoned opinion, that error does Commission should act as a college and of not necessarily result in the dismissal of the the importance of the reasoned opinion in the action as inadmissible. However, if the Court procedure under Article 169 of the Treaty. As holds that the present action is inadmissible regards the principle of collegiate action, it is for the reasons invoked by the German Gov to be noted that its observance is of import ernment, the Commission asks the Court to ance not only for the addressees of the deci limit the temporal effects of its judgment, sion adopted, who incur the direct conse first, by precluding the reopening of the pro quences in respect of their legal situation, but cedure where a judgment holding that a also for the proper functioning of the Com Member State has failed to fulfil its obliga mission as a Community body; it therefore tions has already been given, and, secondly, does not concern solely the drawing up of with regard to pending cases where no plea of enforceable administrative acts but all the inadmissibility corresponding to that raised decisions expressing the final political and by Germany in the present case has been put legal will of the Commission. 5 Reasoned forward. opinions must be considered to be such deci sions; their legal importance does not stem from the direct consequences which they have for their addressee upon notification but from the legal consequences which they produce under the Article 169 procedure, by binding IV — My view on the admissibility of the the Commission as regards the content and action scope of the grounds which it may raise before the Court and correspondingly restricting the extent of the review by the Court. In other words, the formulation of the reasoned opinion constitutes, in terms of its political importance and legal effects, the most significant contribution made by the Com mission in the Article 169 procedure; thus, 7. The views expounded by both the German the fact that it does not constitute an enforce Government and the Commission have able administrative act does not mean that it already been considered by the Court in Case automatically amounts to a decision of C-191/95, in which it gave judgment recent ly. 3 In that case I was asked to give two
4 — Opinions of 5 June 1997 and 17 February 1998. 5 — Point 18 of my Opinion of 17 February 1998 in Case 3 — Case C-191/95 Commission v Germany [1998] ECR 1-5449. C-191/95.
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secondary importance so that it is justifiable gation to incorporate the content of the deci- to relax the strict procedural rules which sion adopted in a written text; it also infringes should characterise Commission action. 6 the rule under which both the operative part and the grounds of a Community act must be adopted simultaneously by the body which has the power of decision (in this instance, the body of Commissioners). 9. With regard to such action, I placed par- ticular emphasis on the obligation to demon- strate that the principle of collegiality has been complied with: the Commission, as a collegiate body, is bound by special proce- 11. However, the Court did not follow the dural rules which are derived from that prin- above reasoning, it found that the Commis- ciple and intended to ensure compliance with sion practice described above for drawing up it. It is necessary for compliance to be proved reasoned opinions is entirely consistent with easily and reliably. The only sure means of the principle of collegiality and Community proof is to incorporate the content of the law generally. The Court may, therefore, again decision adopted in the text that will repre- choose the solution which it adopted in Case sent the result of the collegiate examination C-191/95 8 and hold the present action admis- of the case by the college of Commissioners sible. I, for my part, retain the views which I and define the extent of collegiate responsi- expounded in that case. bility of the Commissioners who participated in the college. In other words, the principle of collegiate action is one of the bases of the Community administrative machinery and indissolubly linked to the principle that the true intention of the body of Commissioners V — Merits of the action should be incorporated in a text; it is neces- sary for that text to contain the basic points of the decision adopted, the statement of rea- sons for it and its operative part. 7 A — Community legislation
10. In view of the above considerations, I maintained, and continue to believe, that the 12. Directive 90/605 9 extends the scope of Commission's practice of adopting as a col- Fourth Directive 78/660 1 0 and Seventh lege only a 'decision of principle' consisting Directive 83/349. 1 1 Until that legislative of a single word when it issue a reasoned opinion, leaving the drafting of the text of the reasoned opinion to the administrative ser- 8 — Cited above. vices, is contrary to the abovementioned obli- 9 — See footnote 1 above. 10 — Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11). 11 — Seventh Council Directive 83/349/EEC of 13 June 1983 6 — Points 28 and 32 of that Opinion. based on Article 54(3)(g) of the Treaty on consolidated 7 — Points 17 and 21 of that Opinion. accounts (OJ 1983 L 193, p. 1).
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amendment, Directives 78/660 and 83/349 83/349 to commercial and limited partner- applied in Germany only to the following ships where all members having unlimited types of company: the Aktiengesellschaft (pub liability are companies of the types prescribed lic limited company), the Kommanditgesell in the second subparagraph of Article 1(1) of schaft auf Aktien (company limited by shares, Directive 78/660, as amended by Directive but having one or more general partners) and 90/605. In other words, Directives 78/660 and the Gesellschaft mit beschränkter Haftung 83/349 cover a commercial or limited partner- (limited liability company). The objective of ship all of whose members having unlimited Directive 90/605 is to bring within the scope liability are other commercial or limited part- of Directives 78/660 and 83/349 certain cat- nerships which themselves have as members egories of partnerships whose members with with unlimited liability only public limited unlimited liability are companies having a companies, limited liability companies or com- share capital. Under Articles 1 and 2 of Direc- panies limited by shares but having one or tive 90/605, the coordination measures pre- more general partners. scribed by Directives 78/660 and 83/349 are also to apply to the Member States' laws, regulations and administrative provisions relating to the following types of German company: the offene Handelsgesellschaft (com- mercial partnership) and the Kommandit- gesellschaft (limited partnership). In order for Directive 90/605 to apply to those partner- VI — My views on the merits of the action ships, all members having unlimited liability must be in the form of one of the types of company having a share capital listed in Direc- tives 78/660 and 83/349 12 or be companies which are not governed by the laws of a Member State but which have a legal form comparable to those referred to in Directive 68/151. 13 14. I consider that the Federal Republic of Germany has failed to comply with Directive 90/605.
13. In addition, Directive 90/605 extends the field of application of Directives 78/660 and 15. As the Commission correctly observes, the infringement which has taken place is — in part at least — not disputed by the German 12 — That is to say the companies which are listed in the original version of Article 1 o f Directive 78/660 and of Article 4 of Government. Its acknowledgment that it has Directive 83/349. failed to comply with the directive results 13 — First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the from three points. First, while conceding that interests of members and others, are required by Member States of companies within the meaning of the second para- it has not adopted specific measures to trans- graph of Article 58 of the Treaty, with a view to making pose Directive 90/605, it maintains that such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p. 41). German legislation covers large parts thereof;
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it follows A contrario that the German legisla of which it has been brought before the Court, tion in force does not cover the entire direc in order to justify its lateness in transposing tive. Second, Germany indicates that it will other Community provisions with similar undertake the transposition of the directive content. Finally, it is irrelevant whether the into national law immediately after delivery transposition of the directive into national of judgment by the Court in Case C-191/95. law has been delayed because of the opposing Third, it invokes the difficulties in imple views which have been expressed as to the menting the directive which result from the need for the national transposing measures fact that the competent authorities and the and their appropriateness. It is settled law 1 5 bodies concerned in Germany have not yet that a Member State cannot rely on internal agreed on the national transposing measures circumstances to escape its obligations under which are necessary and appropriate in or a directive. der to bring national law into line with the directive.
16. The above submissions amount to an indi rect admission of the alleged infringement. Irrespective of the above, however, if it is The Court has consistently held that, under assumed that the German Government con the third paragraph of Article 189 and the tests in its entirety the infringement alleged first paragraph of Article 5 of the E C Treaty, against it by the Commission, the views which the Member States to which a directive is it puts forward regarding the extent to which addressed are obliged to achieve all the objec the national legislation in force transposes the tives of that directive within the period laid directive at issue are incorrect. The German down so that its provisions are fully effective Government refers to Paragraph 6(1) of the on the expiry of the time-limit for transposi Handelsgesetzbuch (German Commercial tion. A submission that national legislation in Code; hereinafter the 'HGB'), which classi force nevertheless meets a large part of the fies commercial and limited partnerships as Community objectives contained in the direc traders and makes them automatically subject tive to be transposed must be rejected as to Section I of Book III of the H G B (Para irrelevant. 14It is also necessary to reject sub graphs 238 to 261). According to the submis missions by a Member State that it is lawful sions of the German Government, those pro to delay the transposition of a directive until visions amount to a transposition of the the Court has interpreted another provision requirements of Directive 78/660. The German of the same directive in Treaty infringement Government sets out in its pleadings a detailed proceedings brought against the same State. table of the provisions of the directive which, A Member State cannot rely on alleged fail in its view, have been incorporated in ures by it to fulfil its obligations, in respect
15 — See, for example, Case C-208/96 Commission ν Belgium [1997] ECR I-5375, paragraph 9, and Case C-8/97 Commis 14 — See Case C-298/97 Commission ν Spain [1998] ECR I-3301. sion ν Greece [1998] ECR I-823, paragraph 8.
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corresponding provisions of Section I of Book issue which falls outside the ambit of the III of the H G B . present proceedings. It is clear, however, that the transposition of those directives into German law must be sought in Section II, and not Section I, of Book III of the H G B . The fact that Section I of Book III of the H G B appears to contain provisions which are consistent with the requirements laid down 17. Indeed, the abovementioned national pro by those directives does not in any way mean visions in Section I of Book III of the H G B , that that part of the German legislation also which relate to the drawing up of trading transposes them since, first, they do not merely accounts and to commercial data, appear to contain piecemeal provisions but lay down a be consistent with the provisions of Directive coherent system of rules and, second, another 78/660; that does not mean, however, that part of the German legislation covers their they also transpose the provisions of the direc
subject-matter. tive into national law. As the Commission correctly observes, when that directive was adopted it laid down certain strict require ments relating to the presentation and con tent of annual accounts and annual reports, the valuation methods used and the publica tion of those documents, especially for com panies having a share capital. Directive 83/349, which dealt with the particular question of consolidated accounts, related to the same companies. The abovementioned Community Turning now to the legislation specifically at legislation does not merely lay down piece issue in this action, Directive 90/605 is meal provisions relating to trading accounts designed to extend the scope of Directives but forms a coherent and detailed body of 78/660 and 83/349 to concerns which, while requirements and conditions for the opera ostensibly partnerships, do not in fact consist tion of companies having a share capital, that of natural persons, but of companies having is to say it creates an independent system of a share capital; that is to say, so far as con
rules. That special system was specifically cerns Directive 90/605 at any rate, companies incorporated into German law in a separate 'having a share capital under a presumption part of the national legislation, that is to say of law' are at issue. The only acceptable way in Section II of Book III of the H G B , which of transposing Directive 90/605 into German expressly relates to companies having a share law correctly is to extend the field of applica capital.
That part of the H G B is divided into tion of Section II of Book III of the H G B so six subsections, of which the first relates to that it covers, in addition to the companies the annual accounts of a company having a having a share capital to which it currently share capital and the report on its economic relates, the companies 'having a share cap position, the second to the consolidated ital under a presumption of law' set out in accounts, the fourth to the disclosure require Directive 90/605. 1 6 ments and the sixth to the penalties for failure to comply with the above provisions.
I do not wish to broach the question as to whether Section II of Book III of the H G B correctly 16 — Irrespective of the issue as to whether the relevant part of transposes Directives 78/660 and 83/349, an the German legislation ultimately amounts to a correct transposition of Directives 78/660 and 83/349.
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Finally, so far as concerns the specific issue of mission observes, the set of companies to the disclosure requirements laid down by which the Publizitätsgesetz relates is much Directives 78/660 and 83/349, the German narrower than that covered by the disclosure Government's submission that the Publizitäts- requirements laid down by the Community gesetz of 1969 17 is sufficient for the corre- legislation; it corresponds to just 1% of all sponding Community provisions to be companies. The national legislation therefore regarded as having been transposed into does not amount to a correct and complete national law must be rejected. As the Com- transposition of the Community provisions.
VII — C o n c l u s i o n
I n view of t h e foregoing I p r o p o s e , subject t o t h e reservation w h i c h I have expressed regarding admissibility, that t h e C o u r t should:
(1) allow t h e application a n d declare that, b y failing t o a d o p t w i t h i n t h e p r e s c r i b e d p e r i o d all t h e measures necessary t o c o m p l y w i t h C o u n c i l Directive 9 0 / 6 0 5 / E E C of 8 N o v e m b e r 1990 a m e n d i n g Directive 7 8 / 6 6 0 / E E C o n a n n u a l a c c o u n t s a n d Directive 8 3 / 3 4 9 / E E C o n consolidated accounts as regards t h e scope of t h o s e Directives, t h e Federal R e p u b l i c of G e r m a n y has failed t o fulfil its obligations u n d e r t h a t directive;
(2) o r d e r t h e Federal R e p u b l i c of G e r m a n y t o p a y t h e costs.
17 — Law on the disclosure of accounts: Gesetz über die Rech- nungslegung von bestimmten Unternehmen und Konzernen BGBl. I, 1969, p. 1189 and BGBl. I, 1970, p. 1113.
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