Court of Justice 5 June 1997, C-191/95 (Commission of the European Communities v Federal Republic of Germany.)

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The Advocate-General opines that the Commission's infringement action against Germany under Article 169 EC Treaty is inadmissible because the reasoned opinion was not adopted in compliance with the principle of collegiality, as the college of Commissioners approved only a proposal to issue the opinion without adopting its operative part and statement of reasons simultaneously, and without authenticating the text in accordance with Article 12 of the Commission's Rules of Procedure. The Advocate-General further argues that a reasoned opinion under Article 169 constitutes a 'decision of principle' — given its binding effect on the subject-matter of subsequent judicial proceedings — and therefore cannot be adopted under a delegation of authority as a mere act of management or administration. Notwithstanding the inadmissibility, the Advocate-General expresses the view that Germany's penalty regime under Paragraph 335 of the Commercial Code (Handelsgesetzbuch), which conditions imposition of penalties on a request by a limited class of persons, fails to satisfy the requirement for 'appropriate penalties' under Article 6 of the First Council Directive 68/151/EEC, and that Germany would otherwise have been found to have failed to fulfil its Community law obligations.AI