EN Official Journal of the European Union C 260/5

Appeal brought on 27 June 2008 by Landtag Schleswig-Holstein against the order lodged on 3 April 2008 by the Court of First Instance (Second Chamber) in Case T-236/06, Landtag Schleswig-Holstein v Commission of the European Communities

(Case C-281/08 P)

(2008/C 260/06)

Language of the case: German

Parties

Appellant: Landtag Schleswig-Holstein (represented by: S. Laskowski and J. Caspar, acting as Agents)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— declare the appeal to be admissible and well founded;

— annul the order of the Court of First Instance of 3 April 2008;

— uphold the appellant's application at first instance and declare the application in Case T-236/06 to be admissible and well founded;

— in the alternative, refer the case back to the Court of First Instance, for the latter to admit the original application and the prior proceedings to be continued;

— rule on costs and order the Commission to pay all of the costs of the present proceedings.

Pleas in law and main arguments

The Court of First Instance rejected as inadmissible the appellant's application for annulment brought against the Commission of the European Communities on the ground that the appellant is not a legal person within the meaning of the fourth paragraph of Article 230 EC. The application for annulment was brought against the Commission decisions of 10 March 2006 and 23 June 2006, by which the appellant was refused access to document SEK(2005) 420 containing a legal analysis of a draft framework decision, under discussion in the Council, on the retention of data for purposes of the prevention, investigation, detection and prosecution of crime and criminal offences, including terrorism.

The appellant bases its appeal against the contested order of the Court of First Instance on two grounds.

First, it alleges that the Court of First Instance infringed the audi alteram partem rule in judicial proceedings. This principle is designed, inter alia, as an expression of the guarantee of a fair hearing and effective legal protection, to prevent judicial decisions from being potentially influenced by arguments which the parties have not been given the opportunity to discuss. As a result, a decision causing surprise to the parties should be avoided. In order to avoid a judgment of such a kind, the Court of First Instance should have given the appellant the opportunity to obtain clarification.

Secondly, the appellant submits that Court of First Instance infringed Community law by misinterpreting the constituent element ‘legal person’ within the meaning of the fourth paragraph of Article 230 EC, and erred in law by denying the status of legal person, and, in consequence, locus standi to the appellant.

The Court of First Instance proceeded on the basis that the President of the Schleswig-Holstein Landtag (Land Parliament) represents, in the context of his powers as legal representative, not the appellant, but rather ‘the Land directly’, as a result of which it concluded that the appellant does not have legal capacity and thus also does not have locus standi before the Community Courts. It can be deduced from this that the Court of First Instance would have regarded the application as admissible had it been brought by the ‘Land Schleswig-Holstein’ rather than by the appellant. This view is not only incorrect in law, inasmuch as it is at odds with the Constitution of the Land of Schleswig-Holstein, but also inasmuch as it constitutes, in the appellant's view, a surprising decision which the latter should not have had to expect. The order of the Court of First Instance is wrong in law, first, because it failed to recognise that the Landtag is, according to the Constitution of the Land of Schleswig-Holstein, the ‘highest body of political aspiration elected by the people’, and, secondly, because the Court of First Instance did not realise that the President of the Landtag represents the Landtag in its entirety with regard to constitutional disputes affecting it. The term ‘Land’ is used, legally, in an extensive and non-specific way, and may refer, depending on the legal context, to both the Land Government and the Land Parliament.