# C_2008171EN.01001402.xml

| 5.7.2008 | EN | Official Journal of the European Union | C 171/14 |
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5.7.2008

EN

Official Journal of the European Union

C 171/14

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Appeal brought on 3 April 2008 by Efkon AG against the order of the Court of First Instance (Fifth Chamber) of 22 January 2008 in Case T-298/04, Efkon AG v European Parliament and Council of the European Union

(Case C-146/08 P)

(2008/C 171/25)

Language of the case: German

Parties

Appellant: Efkon AG (represented by: M. Novak, Rechtsanwalt)

Appellant:

Other parties to the proceedings: European Parliament, Council of the European Union, Commission of the European Communities

Other parties to the proceedings:

Form of order sought

| — | Set aside the order of the Court of First Instance of 22 January 2008 under appeal (T-298/04) as unlawful, and direct the Court to follow due process of law and to reach a decision on the merits; |
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Set aside the order of the Court of First Instance of 22 January 2008 under appeal (T-298/04) as unlawful, and direct the Court to follow due process of law and to reach a decision on the merits;

| — | in the alternative, annul the contested directive as unlawful, as applied for in the application, and order the defendants to pay the costs; |
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in the alternative, annul the contested directive as unlawful, as applied for in the application, and order the defendants to pay the costs;

| — | declare furthermore that, inasmuch as the order of 22 January 2008 determines an action which was brought on 21 July 2004, the order amounts to a violation of Article 6 of the ECHR owing to the excessive duration of the proceedings and that, on that ground alone, the applicant is to be granted legal redress. |
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declare furthermore that, inasmuch as the order of 22 January 2008 determines an action which was brought on 21 July 2004, the order amounts to a violation of Article 6 of the ECHR owing to the excessive duration of the proceedings and that, on that ground alone, the applicant is to be granted legal redress.

Pleas in law and main arguments

The appellant's appeal against the order of the Court referred to above is based on the erroneous interpretation of the fourth paragraph of Article 230 EC and on the procedural irregularities which occurred in the course of the proceedings.

The Court of First Instance dismissed the application as inadmissible on the ground that the appellant was not directly and individually concerned by the contested measure within the meaning of the fourth paragraph of Article 230 EC.

That view is incorrect in law. The Court fails to recognise that interference with intellectual property in itself gives rise to an individual and direct concern, which results in an individual and direct concern within the meaning of the fourth paragraph of Article 230 EC. The nature of a patent is such that a particular person is granted an exclusive right for a limited period of time. Such a right can necessarily be conferred only on a particular person. No one else may exercise those rights; therefore interference with that right through a Community law measure necessarily has the effect of establishing individual and direct concern.

The Court's argument that there are also other providers of electronic road toll systems besides the appellant who, in certain circumstances, would be affected in the same way as the appellant, and that therefore the appellant is not directly and individually concerned, is not convincing. Direct and individual concern within the meaning of the fourth paragraph of Article 230 EC cannot be ruled out by the fact that there are other persons affected by the contested measure if such persons do not in fact have a patent.

The rejection of the appellant's statement, from which it emerges that the appellant is developing an ISO-CALM Infrared standard for which it has won the State Prize, is invoked as an infringement of the right to a fair hearing. Finally, the four-year duration of the proceedings is also unacceptable and in itself constitutes a serious procedural irregularity.

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