The rights and wrongs of getting off on a technicality

Date: 22/10/1998

Ian S Forrester
A FAMOUS American judge once spoke with dismay about the possibility that the burglar should go free because the constable erred.

Should a legal act be annulled because of a procedural error? On the one hand, if rules are too strict, no one will be surprised if officials or police officers cut corners. A few irregularities should not vitiate a condemnation which is in its totality not unfair. On the other hand, a public authority is bound by its own rules. If it is allowed to disregard some of them, it may one day disregard them all.

In a judgement rendered on 29 September, the European Court of Justice produced a deeply entangled rationale for excusing the European Commission from being too fussy in cases against member states, while sustaining its criticism of lapses in competition cases against private companies.

There have been two splendid opinions on this issue from advocate-general Georges Cosmas.

The root of the problem is the collegiate nature of the Commission's procedures. The College of 20 Commissioners must collectively take many acts such as decisions in competition cases, the initiation of Article 169 proceedings to 'prosecute' member states for breach of their treaty obligations and many more. Collegiate decision-making implies circulation of a draft in advance, negotiations between cabinets and final adoption by the 20 Commissioners with or without a vote.

The Commission blushed with embarrassment in 1992 when the Court of First Instance noted that the final version of the decision in the PVC cartel cases was finalised only after Commissioner Peter Sutherland, whose name appeared at the foot of the document, had left office.

The CFI held that authentic versions of the text of the decision in the national language of the enterprise to which it was addressed must be adopted by the Commission as a whole. The ECJ agreed, saying it was impossible to accept the Commission's argument that "the College of Commissioners can confine itself to making clear its intention" to act without being "involved in the drafting and finalisation of the act".

The Court ruled that "only simple corrections of spelling and grammar may be made to the text of an act after its formal adoption by the College of Commissioners ..." This was a very public and very severe reproach to the institution for having cut corners.

Then came the Commission versus Germany, concerning whether German corporate law was in conformity with a directive. Germany argued that the initiation of the case had not been effected by the College of Commissioners. The Court called for the original documents and found that the 'reasoned opinion' had clearly not been reviewed collectively.

The Commission said there were 5,000 pending cases and about 1,000 hostile communications to member states issued each year. The advocate-general noted that these numbers were higher than the Commission's own published statistics indicated, and suggested that respecting the principle of collegiality would be much easier than the Commission feared.

In any event, he noted that the reasoned opinion launching the case against Germany bore the signature of Vice-President Martin Bangemann and was dated 2 June 1992. Yet that text had been neither adopted by or even presented to the Commission. It had merely approved the principle of sending the document.

The Commission's lawyers argued, astonishingly, that the institution had taken a décision de base, which would then be drafted, polished and finalised by the services. Surely, said the advocate-general, this was exactly the sort of thing which both Courts had criticised so severely in the PVC case?

It was clear that the Commissioners had not been involved in the drafting and finalisation of the act, yet it was also clear that collegiate involvement was required by the institution's rules. The advocate- general noted that strict procedural propriety assured transparency and, finally, morality. Procedures should not merely be fair but should be seen to be so.

The Court did not wish the burglar to go free even if the constable erred, and continued to err, in his paperwork. It began by reaffirming the principle of 'collegiate responsibility', saying the decision to launch a case against a member state was not mere "administration or management" and should be the subject of collective deliberation by all members of the Commission.

Then came the difficult bit: how to reconcile collegiality, as sulphurously endorsed in the PVC cases, with the adoption by the Commissioners of texts not yet seen and not even drafted? The Court said the reasoned opinion, although important and indeed indispensable, did not change the member state's legal position.

So collegiality could be satisfied if Commissioners had available the information they deemed necessary, and they could leave the wording of the acts to others. It is clear that finding the best route to reach the desired result was not easy. The advocate-general's opinions are very persuasive, if uncomfortable for the civil service.

This article reflects the personal views of the author.

Should a EC legal act be annulled because of a procedural error.