# C_2006060EN.01002002.xml

| 11.3.2006 | EN | Official Journal of the European Union | C 60/20 |
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11.3.2006

EN

Official Journal of the European Union

C 60/20

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Appeal brought on 22 December 2005 by the Republic of Austria against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04

(Case C-454/05P)

(2006/C 60/40)

Language of the case: German

An appeal against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04 was brought before the Court of Justice of the European Communities on 22 December 2005 by the Republic of Austria, represented by Dr. Harald Dossi, acting as Agent, with an address for service in Luxembourg.

The appellant claims that the Court should:

| 1. | set aside the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v Commission of the European Communities, (1) concerning annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, (2) |
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1.

set aside the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v Commission of the European Communities, (1) concerning annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, (2)

Land Oberösterreich and Republic of Austria

Commission of the European Communities

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| 2. | order Court of First Instance of the European Communities to pay the costs, |
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2.

order Court of First Instance of the European Communities to pay the costs,

| 3. | annul the Commission's Decision, or in the alternative, refer the case back to the Court of First Instance for judgment. |
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3.

annul the Commission's Decision, or in the alternative, refer the case back to the Court of First Instance for judgment.

Pleas in law and main arguments

The appellant contends that in adopting its contested judgment of 5 October 2005, the Court of First Instance made a procedural error which both prejudiced the interests of the Republic of Austria and violated Community law.

According to the appellant, the content of the contested judgment is concerned only with the constituent element of the ‘specific problem’; the other elements required under Article 95(5) EC were not examined further after the Court formed the view that there was no problem specific to the applicant Member State. The Court did not, however, examine the question of the ‘specific problem’ with the level of rigour that would have been appropriate to its importance for the outcome of the proceedings. This failure to make a proper assessment of the arguments on this point amounts, first, to a breach of the principle of the right to a fair hearing, and secondly, to a breach of the duty to provide reasons, which in each case constitutes a procedural irregularity.

The scientific risk assessment is above all of particular importance in the field of environmental protection, not least in the application of the precautionary principle, and requires, in the context of a procedure under Article 95(5) EC, a thorough examination of the scientific argumentation, particularly when there is even the slightest doubt as to whether the level of protection envisaged by a harmonisation measure is sufficient. However, neither the Commission nor, subsequently, the Court of First Instance analysed the content of the arguments advanced by the Republic of Austria or performed a thorough examination of the necessity of the notified measure for environmental protection. The decision of the Commission and the judgment of the Court are based on a study by the EFSA (European Food Safety Authority), which dealt only marginally — and in no way in specific relation to the Land Oberösterreich — with the key element of the Austrian submission, the question of the co-existence of genetically modified and non-modified cultures. At no point was there any examination, in the light of the precautionary principle, of the scientific evidence put forward.

Finally the applicant submits that the earlier case-law of the Court of Justice is not inconsistent with the need to conduct proceedings in which all parties are heard in a procedure under Article 95 EC and to this extent the legal view of the Court of First Instance constitutes a breach of Community law. Since failure to conduct such proceedings violates the right to a fair hearing, the contested decision of the Commission should therefore already have been annulled on this ground.

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(1)  OJ 2005 C 296 of 26 November 2005.

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(2)  OJ 2003 L 230, p. 34.

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