# C_2007129EN.01000701.xml

| 9.6.2007 | EN | Official Journal of the European Union | C 129/7 |
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9.6.2007

EN

Official Journal of the European Union

C 129/7

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Appeal brought on 26 March 2007 by Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar against the order of the Court of First Instance (Fourth Chamber) of 17 January 2007 in Case T-129/06 Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar v Commission of the European Communities

(Case C-163/07 P)

(2007/C 129/10)

Language of the case: German

Parties

Appellants: Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar (represented by: C. Şahin, lawyer)

Appellants:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | set aside the order of the Court of First Instance of the European Communities of 17 January 2007 in Case T-129/06 (1), served on the appellants on 26 January 2007, and annul the contested decision of the respondent of 23 December 2005 No MK/KS/DELTUR/(2005)/SecE/D/1614; |
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set aside the order of the Court of First Instance of the European Communities of 17 January 2007 in Case T-129/06 (1), served on the appellants on 26 January 2007, and annul the contested decision of the respondent of 23 December 2005 No MK/KS/DELTUR/(2005)/SecE/D/1614;

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| — | alternatively, to uphold the pleas in law raised by the appellant at first instance and to set aside the order of the Court of First Instance referred to above and annul the contested decision of the respondent of 23 December 2005 No MK/KS/DELTUR/(2005)/SecE/D/1614 in so far as incompatible with those pleas in law; |
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alternatively, to uphold the pleas in law raised by the appellant at first instance and to set aside the order of the Court of First Instance referred to above and annul the contested decision of the respondent of 23 December 2005 No MK/KS/DELTUR/(2005)/SecE/D/1614 in so far as incompatible with those pleas in law;

| — | in the further alternative, to set aside the order of the Court of First Instance referred to above and to refer the matter back to the Court of First Instance; |
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in the further alternative, to set aside the order of the Court of First Instance referred to above and to refer the matter back to the Court of First Instance;

| — | order the respondent to pay the costs. |
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order the respondent to pay the costs.

Pleas in law and main arguments

The appellants base their appeal against the order of the Court of First Instance on the following grounds.

The Court is not required, in appraising the facts in proceedings before, it to have regard only to the contentions of the parties and to decide the case solely on the basis of evidence put forward by them. Rather, Article 21 of the Statute of the Court of Justice makes it clear that the Courts of the European Communities are under an obligation to appraise the facts of the proceedings and can, on their own initiative, not only take active steps, but are also under a duty to do so when the circumstances require.

Since, in the present case, the Court of First Instance did not assess whether the respondent had set out proper reasons in the contested decision, and the appellants learned only of the failure to observe formal requirements only after one month had expired, that is to say, after the end of the prescribed period, it infringed Article 21 of the Statute of the Court of Justice, Article 64 of its Rules of Procedure and substantive Community law regarding the principles relating to the scope of the presumption of legality of legal acts and the doctrine of the apparent existence of an act. Where acts of the administration contain particularly serious and blatant errors, Community law requires that these be treated as null and void.

Had the appellants been properly informed of the remedies available to them, they would have instructed a qualified lawyer and accordingly brought proceedings within the prescribed period. The contention of the Court of First Instance that the appellants and their Turkish lawyers had not used the care that is required of an applicant who is aware of all relevant matters did not relieve the respondent of the duty to provide details of the remedies that were available.

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(1)  OJ 2007 C 212, p. 29.

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