# C_2004300EN.01003001.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/30 |
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4.12.2004

EN

Official Journal of the European Union

C 300/30

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Appeal brought on 29 September 2004 by Regione Siciliana against the order made on 8 July 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-341/02 Regione Siciliana v Commission of the European Communities

(Case C-417/04 P)

(2004/C 300/56)

An appeal was brought before the Court of Justice of the European Communities on 29 September 2004 by Regione Siciliana, represented by the Avvocatura dello Stato, against the order made on 8 July 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-341/02 Regione Siciliana v Commission of the European Communities.

The appellant claims that the Court should:

| — | set aside the order of 8 July 2004 of the Court of First Instance of the European Communities. |
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set aside the order of 8 July 2004 of the Court of First Instance of the European Communities.

Pleas in law and main arguments:

The appellant submits that the order under appeal is defective on the following grounds:

| — | paragraphs 47, 48 and 49 of the order state clearly that its legal basis is provided by Article 113 of the Rules of Procedure of the Court of First Instance, which provides that ‘the Court of First Instance may at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action ...’ No ‘absolute bar’ is evident from the material in the case in hand such as to justify the Court of First Instance declaring of its own motion that the action was inadmissible. Furthermore, the Court of First Instance made no effort whatever to explain what might constitute this ‘absolute bar’ capable of bringing into operation the procedure set out in Article 113 of the Rules of Procedure. The complete lack of reasons in this regard constitutes a very serious infringement of the fundamental rights of defence and of the audi alteram partem principle; |
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paragraphs 47, 48 and 49 of the order state clearly that its legal basis is provided by Article 113 of the Rules of Procedure of the Court of First Instance, which provides that ‘the Court of First Instance may at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action ...’ No ‘absolute bar’ is evident from the material in the case in hand such as to justify the Court of First Instance declaring of its own motion that the action was inadmissible. Furthermore, the Court of First Instance made no effort whatever to explain what might constitute this ‘absolute bar’ capable of bringing into operation the procedure set out in Article 113 of the Rules of Procedure. The complete lack of reasons in this regard constitutes a very serious infringement of the fundamental rights of defence and of the audi alteram partem principle;

audi alteram partem

| — | breach and improper application of Article 230 EC with regard to the entitlement of Regione Siciliana to bring a challenge and, consequently, breach of the fundamental rights of defence; |
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breach and improper application of Article 230 EC with regard to the entitlement of Regione Siciliana to bring a challenge and, consequently, breach of the fundamental rights of defence;

| — | breach and improper application of the first subparagraph of Article 4(1) of Council Regulation (EEC) No 2052/88 of 24 June 1988, (1) as subsequently amended; |
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breach and improper application of the first subparagraph of Article 4(1) of Council Regulation (EEC) No 2052/88 of 24 June 1988, (1) as subsequently amended;

1

| — | breach of Article 9(1) of Regulation (EEC) No 4253/88 of 18 December 1988; (2) |
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breach of Article 9(1) of Regulation (EEC) No 4253/88 of 18 December 1988; (2)

2

| — | defective statement of reasons by virtue of inconsistency and arbitrariness; |
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defective statement of reasons by virtue of inconsistency and arbitrariness;

| — | defective statement of reasons by virtue of inherent contradiction, lack of logic and absence of grounds. |
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defective statement of reasons by virtue of inherent contradiction, lack of logic and absence of grounds.

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(1)  OJ L 185 of 15.07.1988, p. 9.

1

(2)  OJ L 374 of 31.12.1988, p. 1.

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