ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

Transcription

1 SCHOLDT AND OTHERS v COMMISSION ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber) 25 May 2004 * In Case T-264/03, Jürgen Schmoldt, residing in Dallgow-Döberitz (Germany), Kaefer Isoliertechnik GmbH & Co. KG, established in Bremen (Germany), Hauptverband der Deutschen Bauindustrie e.v., established in Berlin (Germany), represented by H.-P. Schneider, lawyer, applicants, Commission of the European Communities, represented by K. Wiedner, acting as Agent, assisted by A. Böhlke, lawyer, with an address for service in Luxembourg, * Language of the case: German. defendant, II

2 ORDER OF CASE T-264/03 APPLICATION for annulment of Article 1 of in conjunction with Table 1 in the Annex to Commission Decision 2003/312/EC of 9 April 2003 on the publication of the reference of standards relating to thermal insulation products, geotextiles, fixed fire-fighting equipment and gypsum blocks in accordance with Council Directive 89/106/EEC (OJ 2003 L 114, p. 50), THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges, Registrar: H. Jung, makes the following Order Legal background 1 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), as amended by Council Directive 93/68/EEC of 22 July 1993 amending Directives 87/404/EEC (simple pressure vessels), 88/378/EEC (safety of toys), 89/106/EEC (construction products), 89/336/ EEC (electromagnetic compatibility), 89/392/EEC (machinery), 89/686/EEC (personal protective equipment), 90/384/EEC (non-automatic weighing instruments), II

3 SCHMOLDT OTHERS v COMMISSION 90/385/EEC (active implantable medicinal devices), 90/396/EEC (appliances burning gaseous fuels), 91/263/EEC (telecommunications terminal equipment), 92/42/EEC (new hot-water boilers fired with liquid or gaseous fuels) and 73/23/EEC (electrical equipment designed for use within certain voltage limits) (OJ 1993 L 220, p. 1), ('Directive 89/106') is designed in particular to remove barriers to the free movement of construction products. 2 Under Article 1(2) of Directive 89/106, for the purposes of that directive 'construction product' means 'any product which is produced for incorporation in a permanent manner in construction works, including both buildings and civil engineering works'. 3 Article 2(1) of Directive 89/106 provides that construction products 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 certain essential requirements when and where such works are subject to regulations containing such requirements. 4 Under Article 3(1) of Directive 89/106, these essential requirements are set out in terms of objectives in Annex 1 to the directive. They relate to particular characteristics of construction works as regards mechanical resistance and stability, safety in case of fire, hygiene, health and the environment, safety in use, protection against noise, and energy economy and heat retention. II

4 ORDER OF CASE T-264/03 5 Directive 89/106 also provides for the establishment of Community 'technical specifications'. Accordingly, pursuant to the second subparagraph of Article 4(1) of the directive, the European Committee for Standardisation ('CEN') and the European Committee for Electrotechnical Standardisation can adopt 'standards' and 'technical approvals' for construction products. Such standards and technical approvals are referred to collectively as 'harmonised standards'. 6 CEN/TC 88 is the arm of the CEN responsible for thermal insulation products. 7 Harmonised standards are adopted on the basis of mandates given by the Commission in conformity with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ1998 L 204, p. 37) and opinions given by the Standing Committee on Construction referred to in Article 19 of Directive 89/ Once harmonised standards have been established by the European standards organisations, the Commission publishes the references of those standards in the Official Journal of the European Union, in accordance with Article 7(3) of Directive 89/ Products that comply with the national standards transposing the harmonised standards are presumed to satisfy the essential requirements. Thus, in accordance with Article 4(2) of Directive 89/106, it is presumed that construction products are fit for use if they enable works in which they are employed, provided the latter are properly designed and built, to satisfy the essential requirements and if they bear the II

5 SCIHMOLDT AND OTHERS v COMMISSION CE marking. The CE marking indicates in particular that the construction products comply with the relevant national standards transposing the harmonised standards, references to which have been published in the Official Journal of the European Union. 10 Lastly, under Article 5(1) of Directive 89/106 a Member State may raise an objection to harmonised standards if it considers that they do not satisfy the essential requirements. In that situation, the Member State concerned notifies the Standing Committee on Construction, setting out the reasons for its objection. The Committee then delivers an urgent opinion; in the light of that opinion and after consultation with the Standing Committee set up under Directive 98/34, the Commission informs the Member States whether the standards concerned should be withdrawn from the Official Journal of the European Union. Facts 11 On 23 May 2001 the CEN adopted 10 standards for thermal insulation products numbered from EN 13162:2001 to EN 13171:2001 ('the contested standards'). 12 The contested standards were published in the Official Journal of the European Communities on 15 December 2001 by means of a Commission Communication in the framework of the implementation of Directive 89/106 (OJ 2001 C 358, p. 9). The communication provided that the contested standards would become applicable as harmonised standards on 1 March However, it also provided for a period of coexistence between the harmonised standards and the national technical specifications lasting until 1 March II

6 ORDER OF CASE T-264/03 13 In addition, footnote 2 to the communication stated that after the end of the coexistence period the presumption of conformity had to be based on the harmonised standards and that the date of the end of that period was the same as the date of withdrawal of conflicting national technical specifications. 14 By letter of 9 August 2002, the Federal Republic of Germany raised an objection inter alia to the contested standards, pursuant to Article 5(1) of Directive 89/106. It claimed in particular that those standards did not justify the presumption that the works in which the products were incorporated fully satisfied the essential requirements. 15 In a report of 22 November 2002, an ad hoc group of the Standing Committee on Construction indicated that it had examined inter alia the contested standards and had made recommendations. It stated that the contested standards could probably be improved but that there was no reason to suspend their application for the purposes of the CE marking. 16 On 28 and 29 January 2003 the Committee established under Directive 98/34 met and issued a positive opinion on the draft of a Commission decision rejecting the objection raised by the Federal Republic of Germany. 17 On 9 April 2003 the Commission adopted Decision 2003/312/EC on the publication of the reference of standards relating to thermal insulation products, geotextiles, fixed fire-fighting equipment and gypsum blocks in accordance with Directive II

7 SCHMOLDT AND OTHERS v COMMISSION 89/106 (OJ 2003 L 114, p. 50), in which it rejected the objection raised by the Federal Republic of Germany pursuant to Article 5(1) of Directive 89/106 ('the contested decision'). 18 In the contested decision the Commission stated, inter alia, that the information received in the course of the consultations with the CEN and the national authorities within the Standing Committee on Construction and within the Committee set up by Directive 98/34 had disclosed no evidence of the risk alleged by the Federal Republic of Germany. In Article 1 of the contested decision, the Commission therefore decided that the contested standards, set out in Table 1 in the Annex to that decision, would not be withdrawn from the list of standards published in the Official Journal of the European Union. 19 The contested decision was published in the Official Journal of the European Union on 8 May On a date not apparent from the documents in the case, the Federal Republic of Germany asked the Standing Committee on Construction to extend the period of coexistence between the contested standards and the national standards until 31 December That request for an extension was rejected at the 57th meeting of the Standing Committee on Construction held on 13 and 14 May However, it was decided at that meeting to extend the period of coexistence between the contested standards and the national standards retroactively until 13 May II

8 ORDER OF CASE T-264/03 22 On 22 May 2003 the contested standards were again published in the Official Journal of the European Union by means of a Commission Communication in the framework of the implementation of Directive 89/106, together with the new expiry date for the period of coexistence between the contested standards and the national standards (OJ 2003 C 120, p. 17). Procedure and forms of order sought by the parties 23 By an application lodged on 28 July 2003 at the Registry of the Court of First Instance, Mr Schmoldt ('the first applicant'), Kaefer Isoliertechnik GmbH & Co. KG ('the second applicant') and Hauptverband der Deutschen Bauindustrie e.v. ('the third applicant') brought the present action for annulment of the contested decision. The first applicant is the chairman of Committee CEN/TC 88, a member of the ad hoc group of the Standing Committee on Construction, and the manager of the third applicant. The second applicant is a German undertaking that uses thermal insulation products and is a member of the third applicant. The third applicant is an association representing the interests of the construction industry in Germany. 24 By separate document lodged on the same day at the Registry of the Court of First Instance, the applicants also applied under Article 243 EC for interim measures ordering the Commission to extend the period of coexistence between the national and the contested standards until the Court of First Instance had delivered its judgment. 25 By document lodged at the Registry of the Court of First Instance on 27 August 2003, the Commission raised a plea of inadmissibility based on Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicants submitted their observations on that plea on 20 October II

9 SCHMOLDT AND OTHERS v COMMISSION 26 By application lodged at the Registry of the Court of First Instance on 25 November 2003, Fachvereinigung Mineralfaserindustrie e.v. applied for leave to intervene in support of the forms of order sought by the defendant. 27 By order of 28 November 2003 the President of the Court of First Instance dismissed the applicants' application for interim measures (order of the President of the Court of First Instance of 28 November 2003 in Case T-264/03 R Schmoldtand Others v Commission [2003] ECR II-5089). 28 The applicants claim that the Court should: annul Article 1 of the contested decision in conjunction with Table 1 in the Annex to that decision, with the result that the communication of 15 December 2001 and the communication of 22 May 2003 be removed from the Official Journal of the European Union; order the Commission to pay the costs. 29 On the basis of its plea of inadmissibility, the Commission claims that the Court should: dismiss the application as inadmissible; order the applicants to pay the costs. II

10 ORDER OF CASE T-264/03 Law 30 Under Article 114(1) of the Rules of Procedure, if one of the parties so requests, the Court of First Instance may give a decision on admissibility without going to the substance of the case. Under Article 114(3), the remainder of the proceedings is to be oral, unless the Court of First Instance decides otherwise. In the present case, the Court has sufficient information, from examining the documents in the case, to be able to give a decision on the Commission's application without opening the oral procedure. 31 In its plea of inadmissibility, the Commission submits, first, that the present action is out of time and, second, that the applicants are not individually concerned within the meaning of the fourth paragraph of Article 230 EC. 32 First, however, it is necessary to determine the subject-matter of the action, about which the parties hold differing opinions. Subject-matter of the action Arguments of the parties 33 The Commission contends that the subject-matter of the action cannot be extended to cover the communications of 15 December 2001 and 22 May 2003, as their withdrawal would be a necessary indirect consequence of the action and not its subject-matter, which consists solely in the application for annulment of Article 1 of the contested decision. II

11 SCHMOLDT AND OTHERS v COMMISSION 34 According to the applicants, the purpose of the present application is to obtain the withdrawal of the contested standards published on 15 December 2001, including the withdrawal of the communication of 22 May 2003 in which the Commission set 13 May 2003 as the expiry date of the period of coexistence between the national and Community standards. 35 They note that the subject-matter of the action is first and foremost Article 1 of the contested decision in conjunction with Table 1 in the Annex to that decision, in which the Commission rejected the objection raised by the Federal Republic of Germany under Article 5(1) of Directive 89/106 and decided that the contested standards would not be withdrawn from the list of standards published in the Official Journal of the European Union. 36 They point out, however, that the Commission subsequently republished the contested standards in a communication of 22 May 2003, thus rendering inoperative the earlier communication of 15 December The applicants explain that the communication of 15 December 2001 was mentioned in the application for the purpose of clarification. If they had asked only for the standards listed in the communication of 22 May 2003 to be withdrawn if the application for annulment of the contested decision were successful, it might have been considered that the communication of 15 December 2001 was not covered by the withdrawal and that the standards listed there retained their legal effect. 38 The applicants maintain that the communication of 22 May 2003 constitutes not only a legal consequence of the contested decision but also a further implementation of the publication required by Article 7(3) of Directive 89/106. II

12 ORDER OF CASE T-264/03 Findings of the Court 39 In Article 1 of the contested decision, the Commission decided that the contested standards mentioned in Table 1 in the Annex to that decision would not be withdrawn from the list of standards published in the communication of 15 December It is common ground that, as far as the contested standards are concerned, apart from the change in the expiry date of the period of coexistence between the contested and national standards, the list published in the communication of 22 May 2003 is identical to the lists published in the annex to the contested decision and in the communication of 15 December In those circumstances, in so far as the applicants seek the annulment of the communication of 22 May 2003 in that it republished the contested standards, their application merges with their application for annulment of Article 1 of the contested decision and will therefore be examined in that context. 42 However, in so far as the applicants apply for the communications of 15 December 2001 and 22 May 2003 to be removed from the Official Journal of the European Union if Article 1 of the contested decision is annulled, that application must be dismissed as inadmissible. It is settled case-law that the Community judicature may not issue directions to the Community institutions in the context of judicial review of the lawfulness of measures. In accordance with Article 233 EC, it is for the institution that issued the annulled act to adopt the necessary measures to comply with the judgment (see, inter alia, Case C-353/01 P Mattila v Council and II

13 SCHMOLDT AND OTHERS v COMMISSION Commission [2004] ECR I-1073, paragraph 15, and the order of 15 October 2003 in Case T-372/02 Internationaler Hilfsfonds v Commission [2003] ECR II-4389, paragraphs 48 and 49). 43 In so far as the applicants contest the change in the expiry date of the period of coexistence between the contested standards and the national standards by the communication of 22 May 2003, it must be stated that the application merely alleges that that communication 'has no legal basis and lacks a statement of reasons'. Such an abstract formulation, which does not specify the nature of the plea on which the application is based, does not satisfy the requirement, laid down in the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to the procedure before the Court of First Instance under the first paragraph of Article 53 of that Statute, and in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, that the application must contain a summary of the pleas in law (Case T-293/01 Ineichen v Commission [2003] ECR-SC I-A-83 and II-441, paragraph 84 and Case T-385/00 Seiller v EIB [2003] ECR-SC I-A-161 and II-801, paragraph 40)! On those grounds the application is also inadmissible in that respect. 44 Consequently, the present application is to be examined only in so far as the applicants seek the annulment of Article 1 of the contested decision. The late submission of the application Arguments of the parties 45 In the view of the Commission, it is settled case-law that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the II

14 ORDER OF CASE T-264/03 period prescribed for instituting proceedings, is subsidiary to the criteria of publication or notification of the measure (Case C-122/95 Germany v Council [1998] ECR I-973, paragraph 35). It maintains that this applies in particular where publication of a measure is consistent practice, as in that case the applicant may legitimately assume that publication will take place (Germany v Council, paragraph 37). 46 The Commission contends that in the present case the date on which the contested decision came to the knowledge of the applicants has no such subsidiary importance, as its publication in the Official Journal of the European Union was not mandatory. The period for instituting proceedings against that decision therefore commenced formally on the day on which the decision came to the knowledge of the applicants and not on the date of publication. Hence Article 102(1) of the Rules of Procedure, under which the period for commencing proceedings against a measure adopted by an institution is to be calculated from the end of the 14th day after publication of the measure in the Official Journal of the European Union where that period runs from the publication of a measure, is not applicable. 47 Consequently, according to the Commission, since the contested decision of 9 April 2003 was published in the Official Journal of the European Union on 8 May 2003, it came to the knowledge of the applicants on that day at the latest. It therefore contends that the application lodged on 28 July 2003 was submitted 10 days too late, even taking into account the extension on account of distance provided for in the Rules of Procedure. 48 The applicants dispute the claim that their application was lodged after expiry of the time-limit. 49 In this regard, they state that it is not disputed by the Commission that the contested decision was not notified to them. They assert that the decision first came to their knowledge when it was published in the Official Journal of the European Union on II

15 SCHMOLDT AND OTHERS v COMMISSION 8 May As their application was lodged on 28 July 2003, they complied with the period of two months beginning 14 days after publication in accordance with Article 102(1) of the Rules of Procedure, taking into account the 10-day extension on account of distance. 50 In the view of the applicants, no actual publication of measures or decisions by Community institutions occurs that does not trigger the time-limit laid down in Article 102(1) of the Rules of Procedure. Assessment by the Court of First Instance 51 Pursuant to the fifth paragraph of Article 230 EC, the proceedings provided for in that article are to be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. 52 It is consistent case-law that, according to the actual wording of that provision, the criterion of the day on which the contested measure came to the knowledge of an applicant, as the starting point for the period prescribed for instituting proceedings is subsidiary to the criteria of publication or notification of the measure (Germany v Council, cited in paragraph 45 above, paragraph 35, and Case T-296/97 Alitalia v Commission [2000] ECR II-3871, paragraph 61). 53 In the present case the decision was published in the Official Journal of the European Union on 8 May 2003, so that for the applicants the period for commencing proceedings began on that date and not on the date on which it came to their knowledge. II

16 ORDER OF CASE T-264/03 54 Under Article 102(1) of the Rules of Procedure, where the period of time runs from the publication of the contested measure, that period is to be calculated from the end of the 14th day after publication of the measure in the Official Journal of the European Union. 55 Contrary to the opinion of the Commission, this additional period of time cannot be ruled out on the grounds that publication of the contested decision is not mandatory and is not the institution's consistent practice, so that the date of publication cannot be taken into consideration as such but only as the date on which the decision came to the knowledge of the applicants. 56 It follows from Germany v Commission (cited in paragraph 45 above) that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the period prescribed for instituting proceedings, is subsidiary to the criterion of publication. Consequently, since the contested decision was in fact published in the Official Journal of the European Union, the criterion of the day on which the measure came to the knowledge of the applicant is thereby overridden and cannot therefore be applied. 57 Moreover, since the time-limit prescribed for bringing actions under Article 230 EC was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (Case 152/85 Misset v Council [1987] ECR 223, paragraph 11; Case C-246/95 Coen v Belgium [1997] ECR I-403, paragraph 21; and Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services v Commission [1997] ECR II-1355, paragraph 38), determination of the start of that time-limit cannot depend on whether the institution concerned has a consistent practice in that regard. II

17 SCHMOLDT AND OTHERS v COMMISSION 58 It is true that in their judgments the Court of Justice and the Court of First Instance have taken account of the fact that it was consistent practice for the institution concerned to publish the measure, even though publication was not a precondition for its applicability, and on that basis ruled that the period for bringing actions began at the time of publication, because in such a case the applicant was legitimately entitled to assume that it would be published (Germany v Council, cited in paragraph 45 above, paragraphs 36 to 38, and Alitalia v Commission, cited in paragraph 52 above, paragraph 62). 59 It may not be deduced from this, however, that such a practice is an essential precondition for the date of publication of a measure to mark the commencement of the period for bringing actions. On the contrary, it is apparent from this case-law that publication of the contested measure is a sufficient condition and that a consistent practice in this regard merely reinforces that finding (see, to that effect, Case T-11/95 BP Chemicals v Commission [1998] ECR II-3235, paragraph 49; Case T-123/97 Salomon v Commission [1999] ECR II-2925, paragraph 43; and Case T-190/00 Regione Siciliana v Commission [2003] ECR II-5015, paragraphs 30 and 31). Moreover, the provisions of the Treaty regarding the right of interested parties to bring an action must not be interpreted restrictively (Case 25/62 Plaumann v Commission [1963] ECR 95, at 107). 60 Furthermore, it should be noted that the additional period of 14 days under Article 102(1) of the Rules of Procedure is applicable, according to the wording of that provision, 'where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure', and not only where publication is mandatory for the applicability of the measure or constitutes a consistent practice of the institution concerned. 61 The Commission is therefore wrong to argue that Article 102(1) of the Rules of Procedure is not applicable in the present case. II

18 ORDER OF CASE T-264/03 62 Consequently, since the present application, which was lodged on 28 July 2003, was brought within a period of two months of publication of the decision in the Official Journal of the European Union on 8 May 2003, taking account of the period of 14 days and the single period of 10 days on account of distance laid down in Article 102 (1) and (2) of the Rules of Procedure, the Commission's plea of inadmissibility on the grounds that the action was brought out of time must be dismissed. The individual concern of the applicants Arguments of the parties 63 The Commission submits that the applicants are not individually concerned by the contested decision. 64 In that regard the Commission argues essentially that the first applicant lodged his application not as an official representative of CEN/TC 88 but only in his personal capacity; that the second applicant is admittedly concerned by the contested decision to a significant extent, but in no way individually; and that the third applicant cannot base its right to bring proceedings either on that of the second applicant, which is not individually concerned by the contested decision, or on its mere involvement in preparing the application made by the Federal Republic of Germany under Article 5(1) of Directive 89/ The applicants contend that they are individually concerned by the contested decision. II

19 SCHMOLDT AND OTHERS v COMMISSION 66 First, they claim that the plea of inadmissibility raised by the Commission constitutes an abuse of rights, as the action is manifestly well-founded. 67 In that regard they point out that, since the entry into force of the Treaty of Nice on 1 February 2003, the principle of the rule of law has been an express basis of the European Union (Article 6 EU). Moreover, they contend that the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) gives every person the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union (Article 41), and everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal (Article 47). 68 The applicants assert that pursuant to Article 220 EC the primary duty of the Court of First Instance is to ensure that the law is observed in the interpretation and application of the EC Treaty. 69 In their view, in the contested decision the Commission demanded, in manifest violation of the procedural rules, the implementation of European standards which, because of the many errors, internal contradictions and omissions they contained, made uniform application within the European Union impossible. 70 Second, the applicants allege that, in the absence of even the theoretical possibility of obtaining judicial review of the contested Community measure of general application in any other manner, they can exercise their right to effective judicial protection only in the context of an individual action under the fourth paragraph of Article 230 EC, and must therefore be regarded as individually concerned. II

20 ORDER OF CASE T-264/03 71 They observe that they can challenge the contested decision only before the Court of First Instance, as an action before the national courts is not possible in the present case. 72 They maintain that where a natural or legal person is directly concerned by a Community measure of general application and every form of effective judicial protection against that measure outside the fourth paragraph of Article 230 EC is objectively impossible because Community law makes no provision for any legal remedy or procedure for that circumstance and the measure in question by its nature falls outside the jurisdiction of national courts and no such remedy can be created by amending national procedural laws, it follows from Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 that an individual action may not, in these exceptional cases, be declared inadmissible on the grounds that the applicant is not individually concerned. Any person who can claim that a Community measure directly affects his rights or legally protected interests must therefore be regarded as individually concerned if the nature of the measure is such that no other legal remedy is available and none can be created even by interpreting or amending national law. 73 According to the applicants, the admissibility of such actions before the Court of First Instance would not have the effect of setting aside the condition that the applicant be individually concerned; on the contrary, it would demonstrate the usefulness and relevance of that condition. Admissibility is, in their opinion, of particular importance in cases where a natural or legal person who is directly concerned by a Community measure can otherwise obtain no judicial protection for reasons that are objectively immutable and cannot be influenced by that person or by the Member State concerned or by its courts. 74 The applicants consider that only a decision to that effect can guarantee effective judicial protection at European level and a complete system of legal remedies and II

21 SCHMOLDT AND OTHERS v COMMISSION procedures designed to ensure judicial review of the legality of acts of the Community institutions, as the Court of Justice ruled in paragraphs 39 and 40 of Unión de Pequeños Agricultores v Council, cited in paragraph 72 above. 75 Third, the applicants submits that each of them is individually concerned by the contested decision. 76 As regards the first applicant, the applicants allege that he was not invited in his capacity as the Chairman of CEN/TC 88 to participate in the adoption of the contested decision in the framework of the ad hoc group of the Standing Committee on Construction entrusted with examining the contested standards and that his participation in the group's report was simulated. 77 According to the applicants, the ad hoc group should have delivered an expert opinion on Germany's objection based on Article 5(1) of Directive 89/106, but in fact it did not meet. The Commission nevertheless presented a report from the group on this issue, giving the false impression that CEN/TC 88 had given its approval, whereas it had not been consulted. 78 The applicants contend that if CEN/TC 88 had been involved in the proper manner in the report of the ad hoc group of the Standing Committee on Construction, the first applicant, as the Chairman of CEN/TC 88, would have been directly involved in the procedure. Moreover, in their view, that applicant had been appointed a member of the ad hoc group and was its only member who could have given authoritative information on any positions adopted by CEN/TC 88. II

22 ORDER OF CASE T-264/03 79 According to the applicants, the first applicant is therefore entitled to bring proceedings against the contested decision, as not only his procedural rights but also his personal rights have been infringed, because his reputation as an internationally recognised expert on standards for thermal insulation products was damaged by the alleged consultation of CEN/TC In addition, the applicants state that the first applicant is manager of the Federal Technical Department 'Thermal insulation, refrigeration, acoustic insulation and fire protection' of the third applicant. 81 With regard to the second applicant, the applicants state that, as a major user of thermal insulation products and the largest insulating undertaking in Germany and the second largest in Europe, the contested decision has a significant impact on its current contracts and does not take account of its specific legal obligations. They maintain that it finds itself in a conflict between standards under German law and those under Community law. In addition, it is exposed to guarantee claims from its customers. As a result, the applicants claim that it is at a serious disadvantage in relation to its competitors from other Member States. Furthermore, under Article 95 (3) EC, users of construction materials in particular, who have responsibility for the correct execution of works, are under an obligation to ensure a high level of consumer and environmental protection. 82 Moreover, according to the applicants, as a member of the third applicant's Federal Technical Department 'Thermal insulation, refrigeration, acoustic insulation and fire protection', the second applicant played a key role in the decision of the German Preparatory Committee for EC Harmonisation to lodge an objection to the contested standards pursuant to Article 5(1) of Directive 89/106. II

23 SCHMOLDT AND OTHERS v COMMISSION 83 Lastly, with regard to the third applicant, the applicants state that it is a member of national standardisation committees and hence directly involved in the work of CEN/TC 88. In addition, it is a member of the German Preparatory Committee for EC Harmonisation, within which the competent Federal Ministry decides the national position to adopt within the Standing Committee on Construction. 84 According to the applicants, the contested decision deprives the third applicant of the opportunity to lobby, in the interests of the undertakings it represents, for a new version of, or at least an improvement in, the Community standards for thermal insulation products. Moreover, even if it is held thai entitlement to bring proceedings is not transferred to the third applicant from the undertakings it represents, it is individually concerned by virtue of the fact that it was directly involved in the procedure which led up to the adoption of the contested decision, via one of its managers, the first applicant. The first applicant, who is Chairman of CEN/TC 88, stated in a letter to the Commission of 28 November 2002 that he requested proper participation by the ad hoc group of the Standing Committee on Construction not only in his capacity as a member of that group but also as manager of the Federal Technical Department Thermal insulation, refrigeration, acoustic insulation and fire protection' of the third applicant. Since the first applicant, in his dual role as member of the ad hoc group and as manager of the third applicant, not only conducted negotiations and conversations with the Commission but should also have been called upon by the latter to participate personally in a particular formal procedure, the applicants contend that the third applicant must be regarded as an association that is directly and individually concerned. 85 On those grounds, the applicants consider that they are entitled to bring the present proceedings. Findings of the Court 86 Under the fourth paragraph of Article 230 EC, '[a]ny natural or legal person may... institute proceedings against a decision addressed to that person or against a II

24 ORDER OF CASE T-264/03 decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former'. 87 According to settled case-law, the criterion for distinguishing between a regulation and a decision must be sought in the general application or otherwise of the act in question (orders of 23 November 1995 in Case C-10/95 P Asocarne v Council [1995] ECR I-4149, paragraph 28; of 24 April 1996 in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 33; of 26 March 1999 in Case T-114/96 Biscuiterie- Confiserie LOR and Confiserie du Tech v Commission [1999] ECR II-913, paragraph 26; and of 6 May 2003 in Case T-45/02 DOW AgroSciences v Parliament and Council [2003] ECR II-1973, paragraph 31). 88 A measure is of general application if it applies to objectively determined situations and produces its legal effects with respect to categories of persons envisaged generally and in the abstract (Case T-482/93 Weber v Commission [1996] ECR II- 609, paragraph 55 and the case-law cited). 89 It has consistently been held that the fact that the identities of the economic operators to whom such measures apply was known to the Commission at the time they were adopted is not sufficient to call into question their legislative nature, as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose (Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 18; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, paragraph 65; and order of 30 April 2003 in Case T-154/02 Villiger Söhne v Council [2003] ECR II-1921, paragraph 49). II

25 SCHMOLDT AND OTHERS v COMMISSION 90 In the present case, the contested decision is addressed to the Member States, and it rejects the request of a Member State to withdraw certain harmonised standards adopted in accordance with Directive 89/106 from the list of standards published in the Official Journal of the European Union. 91 Under Article 4(2) of Directive 89/106, it is in particular by reference to the national standards transposing the harmonised standards, references to which have been published in the Official Journal of the European Union, that construction products must be presumed to be fit for use and may therefore be placed on the market in the European Union. 92 The purpose of the harmonised standards adopted pursuant to Directive 89/106 is therefore to define the characteristics of the products that economic agents may market or purchase. They therefore produce effects with respect to all producers and users of construction products within the European Union. 93 Consequently, the contested decision refusing to withdraw harmonised standards itself applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract, that is to say, all producers and users of construction products within the European Union. 94 Hence, the contested decision is of general application by virtue of its nature and scope. II

26 ORDER OF CASE T-264/03 95 However, the fact that the contested decision by virtue of its nature and scope is of general character does not as such preclude an individual from being able to bring an action for annulment against it (Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraph 13; Codorniu v Council, cited in paragraph 89 above, paragraph 19; Antillean Rice Mills and Others v Commission, cited in paragraph 89 above, paragraph 66; order of 21 March 2003 in Case T-167/02 Établissements Toulorge v Parliament and Council [2003] ECR II-1111, paragraph 26; and order in Villiger Söhne v Council, cited in paragraph 89 above, paragraph 40). 96 According to settled case-law, a measure of general application can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Unión de Pequeños Agricultores v Council, cited in paragraph 72 above, paragraph 36; Case C-142/00 P Commission v Nederlandse Antillen [2003] ECR I-3483, paragraph 65; order of 12 December 2003 in Case C-258/02 P Bactria v Commission [2003] ECR I-1505, paragraph 34; order in Villiger Söhne v Council, cited in paragraph 89 above, paragraph 44; and Case T-392/02 Solvay Pharmaceuticals v Council [2003] ECR II-4555, paragraph 78). 97 It is therefore necessary to examine whether in the present case the contested decision is of concern to the applicants by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons in relation to that decision. Admissibility of the action by the first applicant 98 In order to demonstrate that the first applicant is individually concerned by the contested decision, the applicants point to his function as Chairman of CEN/TC 88 and to the fact that he should have been a member of the ad hoc group of the Standing Committee on Construction. II

27 SCHMOLDT AND OTHERS v COMMISSION 99 In that regard, it must be stated from the outset that the Secretary-General of the CEN notified the Commission in a letter dated 11 August 2003 that the first applicant was not authorised to represent that body in connection with the action, a fact that has not been disputed by any of the applicants. It is therefore apparent that the first applicant brought the action in a purely personal capacity, so that it is necessary to examine solely on the basis of his personal attributes whether he is entitled to bring proceedings against the contested decision, without it being necessary to determine in addition whether the CEN might be entitled to commence proceedings. 100 The fact that a person participates, in one way or another, in the process leading to the adoption of a Community act does not distinguish him individually in relation to the act in question unless the relevant Community legislation has laid down specific procedural guarantees for such a person (order of 3 June 1997 in Case T-60/96 Merck and Others v Commission [1997] ECR II-849, paragraph 73; order of 15 September 1998 in Case T-109/97 Molkerei Großbraunshain and Bene Nahrungsmittel v Commission [1998] ECR II-3533, paragraphs 67 and 68; order of 29 April 2002 in Case T-339/00 Bactria v Commission [2002] ECR II-2287 paragraph 51; and Joined Cases T-38/99 to T-50/99 Sociedade Agrícola dos Arinhos and Others v Commission [2001] ECR II-585, paragraph 46). 101 In the present case, Article 5(1) of Directive 89/106 lays down guarantees for the benefit of the CEN and the Standing Committee on Construction, not personally for specific members or the chairmen of those bodies. 102 Consequently, without it being necessary at this stage to determine whether the guarantees under Article 5(1) of Directive 89/106 distinguish individually the persons to whom they apply, the first applicant cannot rely in a personal capacity on any procedural guarantee or on any provision of Directive 89/106, the infringement II

28 ORDER OF CASE T-264/03 of which might be such as to distinguish him individually in his capacity as Chairman of CEN/TC 88 when the contested decision was adopted or as a member of the ad hoc group of the Standing Committee on Construction. 103 Even if the first applicant could rely in a personal capacity on such procedural guarantees, the alleged damage to his reputation by infringement of those guarantees cannot, as such, distinguish him individually within the meaning of the fourth paragraph of Article 230 EC. The guarantees under Article 5(1) of Directive 89/106 are not designed to protect the reputation of the members of the committees mentioned in that provision, be they chairman or not, but provide only for an opinion to be delivered if the Commission or a Member State requests the withdrawal of a harmonised standard. 104 Hence the first applicant is not personally entitled to bring these proceedings either as Chairman of CEN/TC 88 or as a member of the ad hoc group of the Standing Committee on Construction. 105 Second, the applicants rely on the first applicant's position as manager of the third applicant as proof that he is individually concerned. 106 However, as this entitlement to bring proceedings, if proven, merges with that of the third applicant, the first applicant could not claim to be individually concerned by the contested decision unless the third applicant itself were individually concerned by the decision. This question must therefore be examined in the context of the entitlement of the third applicant to bring proceedings. II

29 SCHMOI.DT AND OTHERS v COMMISSION 107 Consequently, subject to examination of the entitlement of the third applicant to bring proceedings, the contested decision is not of individual concern to the first applicant within the meaning of the fourth paragraph of Article 230 EC. Admissibility of the action by the second applicant 108 The applicants maintain, first, that the second applicant is individually concerned by the contested decision on account of its position as a major user of construction products and as the largest insulation undertaking in Germany and the second largest in Europe. 109 In that regard, it has to be stated that the contested decision constituted a refusal to withdraw the disputed harmonised standards that had been adopted in accordance with Directive 89/106. Those harmonised standards, the purpose of which is to lay down the characteristics of construction products, apply to all producers and users of such products within the European Union. 10 Hence the second applicant is concerned by the contested decision only by reason of its objective status as an economic operator manufacturing the products in question, in the same way as any other economic operator in the same situation. According to the case-law of the Court, that status alone is not sufficient to establish that the second applicant is individually concerned by the contested decision (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 14 Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 51; and' order in Villiger Söhne v Council, cited in paragraph 89 above, paragraph 47). II

30 ORDER OF CASE T-264/ As regards the assertion that the second applicant is a major user of the products in question on the market concerned, according to the case-law the fact that a measure of general application may have specific effects which differ according to the various persons to whom it applies is not such as to differentiate them in relation to all the other operators concerned where that measure is applied on the basis of an objectively determined situation (see, inter alia, Case T-138/98 ACAV and Others v Council [2000] ECR II-341, paragraph 66; and the case-law cited, and order in Établissements Toulorge v Parliament and Council, cited in paragraph 95 above, paragraph 63). In the present case the second applicant is concerned by the contested decision on account of its objective situation as a user of construction products. 112 Similarly, the second applicant is no more distinguished individually by the fact that it is one of 62 German undertakings in the construction industry using thermal insulation products and grouped at national level in the Federal Technical Department 'Thermal insulation, refrigeration, acoustic insulation and fire protection'. In accordance with the settled case-law cited in paragraph 89 above, the fact that the number or even the identity of the persons to whom a measure applies can be determined more or less precisely does not in any way signify that they are to be considered to be individually concerned by the measure if it is established that, as in the present case, application of the measure is based on an objective legal or factual situation specified in that measure. Moreover, as the applicants themselves have stated, the contested standards apply not only to the users of construction products but also to the Member States, the manufacturers of construction products, and the supervisory authorities. 113 With regard to the claim that the contested decision places the second applicant at a disadvantage in relation to its competitors from other Member States, in particular because of the alleged risk of guarantee claims from its customers or even actions for criminal liability, it must be stated that even if this alleged risk were shown to be unavoidable, which at first sight appears improbable, it cannot in any way distinguish this applicant individually within the meaning of the fourth paragraph of Article 230 EC, as all of its many competitors in Germany are in the same situation. II

31 SCHMOLDT AND OTHERS v COMMISSION 114 Similarly, the alleged fact that under Article 95(3) EC it is incumbent in particular on the users of construction products, who are responsible for the correct execution of works, to ensure a high level of environmental and consumer protection is not such as to distinguish the second applicant individually, since, even supposing that such an obligation exists, in that respect it is in the same situation as all of its competitors in Germany and in the other Member States of the European Union. 115 Lastly, with regard to the assertion that the contested decision has a serious impact on the second applicant's current contracts, it must be stated not only that no evidence to support that claim has been adduced, and that it can therefore not be regarded as proven, but also that it does not constitute a factual situation that differentiates this applicant from other users of construction products, which are equally bound by such current contracts. 116 It is true that the Court of Justice and the Court of First Instance have declared actions for annulment of a measure of general application to be admissible where an overriding provision of law required the author of the measure to take account of the particular situation of the applicant, as the existence of contracts entered into by an applicant and affected by the disputed measure may in certain circumstances distinguish such a particular situation (Commission v Nederlandse Antillen, cited in paragraph 96 above, paragraphs 72 and 75, and Antillean Rice Mills and Others v Commission, cited in paragraph 89 above, paragraphs 67 and 74). 117 However, the present case is different from those which gave rise to the judgments cited, in that such an obligation arising from an overriding provision does not exist in this case (Sociedade Agrícola dos Arinhos and Others v Commission, cited in paragraph 100 above, paragraph 51). Contrary to the view of the applicants, Article 5 (1) of Directive 89/106 does not oblige the Commission to take account of their particular situation or that of the Member State that has objected to a harmonised standard, but merely lays clown the procedure to be followed if such an objection is raised. II

32 ORDER OF CASE T-264/ Consequently, the applicants' arguments based on the existence of current contracts cannot in any event be accepted as distinguishing the second applicant individually. 119 It follows that the second applicant is not individually concerned by the contested decision in its capacity as a major user of construction products. 120 Second, the applicants claim that the second applicant is individually concerned by the contested decision because of the key role it played as a member of the Federal Technical Department 'Thermal insulation, refrigeration, acoustic insulation and fire protection' of the third applicant in the taking of the decision by the Federal Republic of Germany to object to the disputed standards on the basis of Article 5(1) of Directive 89/ As stated in paragraph 100 above, the fact that a person participates, in one way or another, in the process leading to the adoption of a Community act does not distinguish him individually in relation to the act in question unless the relevant Community legislation has laid down specific procedural guarantees for such a person. 122 In the present case, Directive 89/106 does not lay down that before adopting a decision under Article 5(1) of that directive the Commission must follow a procedure in which undertakings such as the second applicant or the national standards associations could exercise any rights or even be entitled to be heard. II

33 SCHMOLDT AND OTHERS v COMMISSION 12.3 As has been determined in paragraph 101 above, Article 5(1) of Directive 89/106 lays down guarantees only for the benefit of the CEN and the Standing Committee on Construction, not for individual undertakings or national associations. 124 Hence the second applicant cannot be considered to be individually concerned by the contested decision in its capacity as a member of the Federal Technical Department 'Thermal insulation, refrigeration, acoustic insulation and fire protection' of the third applicant. 125 Consequently, the second applicant is not individually concerned by the contested decision within the meaning of the fourth paragraph of Article 230 EC. Admissibility of the action by the third applicant 126 With regard to the individual concern of the third applicant, the applicants submit that the latter represents the construction industry in Germany and that its entitlement to bring proceedings against the contested decision stems first from the entitlement of the second applicant, which is one of its members, and second from its participation, via the first applicant, in the procedure leading to the adoption of the contested decision. 127 As regards the entitlement of the third applicant to bring proceedings on the basis of its members' own entitlement to do so, it is settled case-law that an association formed for the protection of the collective interests of a category of persons cannot be considered to be individually concerned for the purposes of the fourth paragraph II

34 ORDER OF CASE T-264/03 of Article 230 EC by a measure affecting the general interests of that category, and is therefore not entitled to bring an action for annulment on behalf of its members where they may not do so individually (Case C-321/95 P Greenpeace and Others v Commission [1998] ECR I-1651, paragraphs 14 and 29; Joined Cases T-447/93 to T-449/93 AITEC and Others v Commission [1995] ECR II-1971, paragraph 62; order of 24 January 2001 in Joined Cases T-112/00 and T-122/00 Iberotam and Others v Commission [2001] ECR II-97, paragraph 74; and order of 14 January 2002 in Case T-84/01 Association contre l'heure d'été v Parliament and Council [2002] ECR II-99, paragraph 25). 128As stated in paragraph 125 above, there is nothing to indicate that the second applicant's action is admissible. 129 Moreover, the applicants have provided no evidence to show that other members of the third applicant are individually concerned by the contested decision. 130 Hence the third applicant cannot successfully claim to be individually concerned by the contested decision on the grounds that its members could themselves bring proceedings for annulment of the decision in question. 131 Second, as regards the participation of the third applicant in the drafting of the contested decision, it is true that the existence of special circumstances, such as the part taken by an association in the procedure leading up to the adoption of an act within the meaning of Article 230 EC, may be grounds for the admissibility of an action brought by an association whose members are not directly and individually II

35 SCHMOLDT AND OTHERS v COMMISSION concerned by that act, especially where its negotiating position is affected by that measure (see, to that effect, Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219, paragraphs 21 to 24, and Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraphs 28 to 30). 132 In those circumstances, according to the case-law, an association which is not the addressee of the contested act has a particular interest in bringing an action for annulment of the act, even where its members may not do so individually (Joined Cases T-481/93 and T-484/93 Vereniging van Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 64; order in Iberotam and Others v Commission, cited in paragraph 127 above, paragraph 75; and order in Association contre l'heure d'été v Parliament and Council, cited in paragraph 127 above, paragraph 25). 133 It is therefore necessary to examine whether the alleged participation of the third applicant, via the first applicant, in the preparation of the objection brought by the Federal Republic of Germany via the first applicant constitutes a special circumstance which may entitle it, as an association of undertakings representing the interests of its members, to bring proceedings in accordance with the case-law cited. 134 As stated in paragraphs 122 and 123 above, Directive 89/106 does not prescribe that before adopting a decision under Article 5(1) of that directive the Commission must follow a procedure in which national associations such as the third applicant could exercise any rights or even be entitled to be heard. 135 Hence the third applicant cannot rely on an individual interest distinct from that of its members to justify its entitlement to bring proceedings. II

36 ORDER OF CASE T-264/ Moreover, the letter of 28 November 2002 from the third applicant, sent via the first applicant, was sent to the Commission for information purposes only, since the Commission was under no duty either to consult or to hear the third applicant in the context of the procedure under Article 5(1) of Directive 89/106 (see, to that effect, order of 9 August 1995 in Case T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205, paragraph 63). 137 Furthermore, the applicants cannot submit, as they have in their pleadings, that in Van der Kooy and Others v Commission, cited in paragraph 131 above, the Court of Justice ruled that the applicant association was entitled to bring proceedings merely on the basis of its status as a negotiator on behalf of an interest group that had been established in the form of an association, had submitted written observations to the Commission and had maintained close contacts with the Commission throughout the procedure. In that judgment the Court of Justice also, and above all, stated in paragraph 23 that the applicant association was one of the signatories of the agreement on the preferential tariff which the Commission had disallowed in the contested decision on the basis of Community rules on State aid and that in that capacity the association was obliged, in order to give effect to the decision, to commence fresh tariff negotiations with the operator concerned and to reach a new agreement. That is not the case here (see, to that effect, Case T-86/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1999] ECR II-179, paragraph 62). 138 Nor can the situation of the third applicant be compared with that of the applicant association in CIRFS and Others v Commission, cited in paragraph 131 above. Although it is not disputed that the third applicant is a member of national standards committees, and thus involved in the work of CEN/TC 88, and is also a member of the German Preparatory Committee for EC Harmonisation, within which the competent Federal Ministry decides the national position to adopt within the Standing Committee on Construction, such indirect participation by a national association in the Community procedure for establishing harmonised standards constitutes only a tenuous link with the subject-matter of the contested decision. It is therefore not comparable to the situation of an association bringing together the II