# C_2007170EN.01001602.xml

| 21.7.2007 | EN | Official Journal of the European Union | C 170/16 |
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21.7.2007

EN

Official Journal of the European Union

C 170/16

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Appeal brought on 1 June 2007 by Tokai Europe GmbH against the order of the Court of First Instance (Fourth Chamber) delivered on 19 March 2007 in Case T-183/04 Tokai Europe GmbH v Commission of the European Communities

(Case C-262/07P)

(2007/C 170/30)

Language of the case: German

Parties

Appellant: Tokai Europe GmbH (represented by G. Kroemer, Rechtsanwalt)

Appellant:

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 19 March 2007 in Case T-183/04 (1) and declare the application to be admissible; |
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set aside the order of the Court of First Instance of the European Communities of 19 March 2007 in Case T-183/04 (1) and declare the application to be admissible;

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| — | in the alternative, set aside the order referred to above and refer the case back to the Court of First Instance in order for it to give a ruling on the substance; |
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in the alternative, set aside the order referred to above and refer the case back to the Court of First Instance in order for it to give a ruling on the substance;

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

Pleas in law and main arguments

By its appeal, the appellant raises the following complaints, which relate to the infringement by the order under appeal of procedural requirements of Community law, by which its interests were prejudiced and which went so far as to affect the content of the order under appeal. They relate to the observance of the right to be heard and measures of inquiry.

The Court of First Instance ordered that the decision on the respondent's objection of inadmissibility should be reserved until final judgment. Following the lodging of the response by the respondent, it closed the written procedure and indicated that the date for the hearing would be notified to the parties at a later date. The applicant had accordingly, in reliance on a date being fixed for a hearing and, above all, on the basis of the order made by the Court, waived its right to present a request under Article 47(1) of the Rules of Procedure of the Court of First Instance that the documents be supplemented. Notwithstanding its earlier indication, the Court ultimately made the order under appeal without there being a hearing.

The appellant proceeded on the basis that it would be able to provide further justification at the hearing that was to be notified for its claim that there are no products on the market that are similar to the small metal wheels that are supplied by its Japanese parent company to manufacturers in Hong Kong and Mexico. In addition, it was its intention to make it clear once again that the wheels in question are not ‘friction wheels’, as the respondent incorrectly indicated in its response. The appellant also wished to explain at the hearing that the small metal wheels that were represented in the disputed classification regulation could only have been produced by its parent company in Japan and that it was accordingly not a question of small metal wheels of a generic nature as the Court of First Instance indicated in the order under appeal. It also intended to rebut the Commission's contentions that it was not the sole importer of Tokai cigarette lighters.

However, as is clear from the order under appeal itself, the Court of First Instance adopted the Commission's arguments as to the admissibility of the action set out in its response, without, as mentioned, giving the appellant the opportunity to challenge the version of the events put forward by the respondent. The appellant claims that this represents an infringement of its right to a fair hearing.

The Court of First Instance is also under a duty to establish the facts. In so doing, it is not restricted in the proceedings before it simply to establishing the facts in reliance on the requests of the parties for measures of inquiry and to reach a decision on the basis of the evidence led before it alone. Therefore, not only can it take the initiative of its own motion, but it is also under a duty to take the initiative where this is necessary. Accordingly, the Court of First Instance was under a duty to clarify the evidence put forward by the applicant in its written pleadings and, by making the appropriate orders, to call upon the parties to submit relevant documents and evidence. Since this did not happen, the Court of First Instance infringed Article 64(3)(d) of its Rules of Procedure.

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(1)  Not published.

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