# C_2004262EN.01001701.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/17 |
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23.10.2004

EN

Official Journal of the European Union

C 262/17

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Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities

(Case C-342/04 P)

(2004/C 262/30)

An appeal against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities was brought before the Court of Justice of the European Communities on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer [manager] Jürgen Schmoldt, represented by Prof. Hans-Peter Schneider, Rominteweg 3, D-30559 Hanover.

The appellants claim that the Court should:

| — | set aside the order and refer the case back to the Court of First Instance; |
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set aside the order and refer the case back to the Court of First Instance;

| — | order the defendant to pay the costs of the dispute. |
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order the defendant to pay the costs of the dispute.

Pleas in law and main arguments

Contrary to the findings of the Court of First Instance, the appellants are individually concerned by the Commission decision contested in the main proceedings.

The appellants put forward eight grounds of appeal.

| 1) | The contested decision proceeds on an incorrect factual basis: there is incontestably no report of 22 November 2002 of the ad hoc working party of the Standing Committee on Construction. The working party set up at the 55th meeting of the Standing Committee on 10/11 September 2002 under the objection procedure pursuant to Article 5(1) of Directive 89/106/EEC never met and/or adopted such a report. |
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1)

The contested decision proceeds on an incorrect factual basis: there is incontestably no report of 22 November 2002 of the ad hoc working party of the Standing Committee on Construction. The working party set up at the 55th meeting of the Standing Committee on 10/11 September 2002 under the objection procedure pursuant to Article 5(1) of Directive 89/106/EEC never met and/or adopted such a report.

| 2) | The third appellant did not bring an action ‘on a personal basis’: the third appellant is incontestably manager of the federal division for ‘heat, cold, acoustic and fire insulation’ of the first appellant, which is an association of the undertakings in Germaany using construction products in that field, and is employed as such with the first appellant. His official tasks include representing the first appellant and the undertakings affiliated to it in the context of the relevant national and European standardisation work. |
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2)

The third appellant did not bring an action ‘on a personal basis’: the third appellant is incontestably manager of the federal division for ‘heat, cold, acoustic and fire insulation’ of the first appellant, which is an association of the undertakings in Germaany using construction products in that field, and is employed as such with the first appellant. His official tasks include representing the first appellant and the undertakings affiliated to it in the context of the relevant national and European standardisation work.

| 3) | Community law lays down procedural guarantees for the appellants. The procedural guarantees relating to the Standing Committee on Construction that are contained in Article 5(1) of Directive 89/106/EEC and in the seventh recital in its preamble must also be for the benefit of those whom the Standing Committee professionally involves as an ad hoc working party in the opinion required under Article 5(1). |
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3)

Community law lays down procedural guarantees for the appellants. The procedural guarantees relating to the Standing Committee on Construction that are contained in Article 5(1) of Directive 89/106/EEC and in the seventh recital in its preamble must also be for the benefit of those whom the Standing Committee professionally involves as an ad hoc working party in the opinion required under Article 5(1).

| 4) | In the procedure under Article 5(1) of Directive 89/106/EEC, the third appellant as member of the ad hoc working party of the Standing Committee on Construction represented not only the first appellant but, of course, also the second appellant as an affiliated undertaking. The second appellant is incontestably a member of the first appellant's federal division for ‘heat, cold, acoustic and fire insulation’. |
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4)

In the procedure under Article 5(1) of Directive 89/106/EEC, the third appellant as member of the ad hoc working party of the Standing Committee on Construction represented not only the first appellant but, of course, also the second appellant as an affiliated undertaking. The second appellant is incontestably a member of the first appellant's federal division for ‘heat, cold, acoustic and fire insulation’.

| 5) | The second appellant made clear to the Court of First Instance, using four instances by way of example, that there was interference with ongoing contracts. |
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5)

The second appellant made clear to the Court of First Instance, using four instances by way of example, that there was interference with ongoing contracts.

| 6) | The first appellant was — not that it would matter — a ‘negotiatior’. |
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6)

The first appellant was — not that it would matter — a ‘negotiatior’.

| 7) | The first appellant was directly involved in the European standardisation work and the procedure pursuant to Article 5(1) of Directive 89/106/EEC. |
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7)

The first appellant was directly involved in the European standardisation work and the procedure pursuant to Article 5(1) of Directive 89/106/EEC.

| 8) | The Court's decision as to costs was inappropriate. |
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8)

The Court's decision as to costs was inappropriate.

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