# C_2006048EN.01001502.xml

| 25.2.2006 | EN | Official Journal of the European Union | C 48/15 |
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25.2.2006

EN

Official Journal of the European Union

C 48/15

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Appeal brought on 7 December 2005 by Land Oberösterreich 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

(Case C-439/05 P)

(2006/C 48/29)

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 7 December 2005 by Land Oberösterreich (the Land of Upper Austria), represented by Franz Mittendorfer, Rechtsanwalt, established in Europaplatz 7, A-4020 Linz.

The appellant claims that the Court should:

| — | Set aside the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 5 October 2005 in Joined Cases T-366/03 and T-235/04 between Land Oberösterreich and Republic of Austria, as applicant, against the Commission of the European Communities, as defendant, (1) due to a declaration of invalidity 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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Set aside the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 5 October 2005 in Joined Cases T-366/03 and T-235/04 between Land Oberösterreich and Republic of Austria, as applicant, against the Commission of the European Communities, as defendant, (1) due to a declaration of invalidity 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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| — | Declare that Commission decision invalid, or in the alternative, refer the case back to the Court of First Instance for judgment; |
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Declare that Commission decision invalid, or in the alternative, refer the case back to the Court of First Instance for judgment;

| — | Order the Commission to bear the costs of the appeal. |
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Order the Commission to bear the costs of the appeal.

Pleas in law and main arguments

Land Oberösterreich pleads that the Court of First Instance both infringed Community law and committed a procedural irregularity.

In relation to the examination of the plea in law alleging 'infringement of the Treaty' the contested judgment dealt only with the factual elements relating to the 'specific problem'; the remaining factual elements of Article 95(5) EC were not examined at all. However, the Court of First Instance also did not — in spite of extensive submissions made by the appellant which were supported by concrete figures — deal with the question of the specific problem in the detailed manner deserved given its importance to the outcome of the case. The Court of First Instance failed to take into account the fact that the specific problem in the unenforceability of traditional co-existence measures exists as a result of the distinctive small-scale structure of agriculture in Oberösterreich which has an unusually high proportion of biologically farmed areas. Failure to carry out an adequate assessment with the relevant information supplied constitutes, in the appellant's opinion, an infringement of the Court of First Instance's duty to give the reasons upon which its judgments are based, which in turn amounts to a procedural irregularity.

The Commission adopted its decision without giving Land Oberösterreich or the Republic of Austria the opportunity to comment on the single item of procedural evidence, namely the opinion of the European Food Safety Authority. In the contested judgment the Court of First Instance concluded that the Court of Justice's considerations in relation to Article 95(4) EC, by which it denied the validity of the basic principle of the adversarial procedure for the procedure under Article 95(4) EC, are simply transferable to the procedure under Article 95(5) EC. The appellant disagrees with that view of the law. The fact must not be overlooked that the judgments of the Court of Justice cited in the contested judgment were made on the basis of Article 100a of the EC Treaty, which was then in force and which did not yet differentiate between the retention of existing, and the introduction of new, provisions of the Member States. Land Oberösterreich also claims that the right to be heard is a fundamental principle of legal procedure the validity of which should not be restricted unnecessarily, even on grounds of procedural economy. The contested Commission decision ought to have been annulled for that reason alone.

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(1)  OJ 2005 C 296 of 26.11.2005.

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

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