Case C-263/02 P: Appeal brought on 17 July 2002 by the Commission of the European Communities against the judgment delivered on 3 May 2002 by the First Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-177/01 between Jégo-Quéré & Cie SA and the Commission of the European Communities
Date: 2002-09-28
Institutions: Court of Justice
Subjects: action for annulment (EU), fishery management, fishery resources, fishing industry, fishing regulations

C 233/14

EN

Official Journal of the European Communities

28.9.2002

Appeal brought on 17 July 2002 by the Commission of the
European Communities against the judgment delivered on
3 May 2002 by the First Chamber, Extended Composition,
of the Court of First Instance of the European Communi-
ties in Case T-177/01 between Jégo-Quéré & Cie SA and
the Commission of the European Communities

According to the new criterion developed by the Court of First
Instance, a natural or legal person is to be regarded as
individually concerned by a Community measure of general
application that concerns him directly if the measure in
question affects his legal position, in a manner which is both
definite and immediate, by restricting his rights or by imposing
obligations on him.

(Case C-263/02 P)

(2002/C 233/22)

An appeal against the judgment delivered on 3 May 2002 by
the First Chamber, Extended Composition, of the Court of First
Instance of the European Communities in Case T-177/01
between Jégo-Quéré & Cie SA and the Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 17 July 2002 by the
Commission of the European Communities, represented by
T. van Rijn and A. Bordes, with an address for service in
Luxembourg.

The appellant claims that the Court should:

— set aside the judgment delivered by the Court of First
Instance of the European Communities on 3 May 2002
in Case T-177/01;

— either determine the present case itself, declaring the
action for annulment of Regulation No 1162/2001 (1) to
be inadmissible or, alternatively, refer the case back to
the Court of First Instance;

— order the applicant in the proceedings at first instance to
pay the costs, including those incurred in the proceedings
before the Court of First Instance.

Pleas in law and main arguments

The Commission advances two pleas in support of its appeal.

First plea: infringement of the Rules of Procedure of the Court
of First Instance, on the ground that the case should have been
referred to the Court of First Instance sitting in plenary session.

Article 14(1) of the Rules of Procedure of the Court of First
Instance provides that, whenever the legal difficulty or the
importance of the case or special circumstances so justify, a
case may be referred to the Court of First Instance sitting in
plenary session. In the present case, the Court of First Instance
decided an important issue in a manner which overturned a
long-standing body of case-law of the Court of Justice. The
absence of any referral to the Court of First Instance sitting in
plenary session results from a manifest error of assessment
which is open to censure by the Court of Justice.

Second plea: infringement of Community law, on the ground
that the Court of First Instance construed the notion of
‘individual concern’, as enshrined in the fourth paragraph of
Article 230 EC, in a manner contrary to the judicial system
established by the Treaty.

That criterion is contrary to the judicial system established by
the Treaty. That system is complete and provides legal remedies
and procedures which are designed to confer on the Court of
the
Justice the power to review the legality of acts of
institutions. Natural and legal persons are protected against
the application to them of measures of general application
which they are unable to contest directly before the Court of
Justice on account of the restrictive terms of Article 230 of the
Treaty: the legal remedies available to an individual consist of
the right indirectly to challenge the validity of the provision at
issue in the context of an action contesting a measure
implementing that provision (Article 241), an action for
damages (Articles 236 and 288) or an action involving a
reference for a preliminary ruling (Article 234).

Moreover, the Court of First Instance erred in law by confusing
the right to an effective remedy, which is fully recognised and
protected, with a general right of direct recourse entitling
individuals to bring proceedings for annulment of measures of
general application. Neither the case-law of the Court of Justice
nor that of the European Court of Human Rights places the
‘right to an effective remedy’ on the same footing as a ‘right to
bring a direct action’. Thus, it is not correct to say that the
remedies available to individuals in order to challenge measures
of general application can no longer be regarded, in the light
of Articles 6 and 13 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms
and Article 47 of the Charter of Fundamental Rights, as
guaranteeing persons the right to an effective remedy. Nor can
any such assimilation be inferred from any of the constitutional
traditions common to the Member States. In most Member
States, the direct right of individuals to seek annulment of a
measure of general application is circumscribed in various
ways.

The Court of First Instance was incorrect in its view that,
where a regulation is directly effective and directly applicable,
the only way in which an aggrieved party may bring the matter
before a national court is by committing an infringement of
the law, and that individuals cannot be required to breach the
law in order to gain access to justice. However, that is the
position in various national legal orders.

28.9.2002

EN

Official Journal of the European Communities

C 233/15

Thus, the criticisms made by the Court of First Instance
concerning the ineffectiveness of the legal remedies conferred
on individuals by the Community legal order are without any
foundation in law.

( 1) Commission Regulation (EC) No 1162/2001 of 14 June 2001
establishing measures for the recovery of the stock of hake in
ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d,
e and associated conditions for the control of activities of fishing
vessels (OJ 2001 L 159, p. 4).

Reference for a preliminary ruling by the Tribunal d’In-
stance de Vienne by judgment of that Court of 5 July
2002 in the case of S.A. Cofinoga Mérignac against Sylvain
Sachithanathan

(Case C-264/02)

(2002/C 233/23)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal d’Instance
de Vienne of 5 July 2002, received at the Court Registry on
18 July 2002, for a preliminary ruling in the case of S.A.
Cofinoga Mérignac against Sylvain Sachithanathan on the
following questions:

— On a proper construction of Council Directive 87/102/
EC (1) of 22 December 1986 and Council Directive 90/
88/EC (2) of 22 February 1990 must the national court
uphold the interpretation of its law which requires lenders
of consumer credit to inform the consumer-borrower in
writing of the current annual percentage charge before
each extension of an agreement for credit renewable in
instalments at an interest rate that is stipulated to be
variable?

— On a proper construction of those directives must the
national court uphold the interpretation of
its law
which requires lenders of consumer credit to inform the
consumer of the clause concerning the variation of that
annual percentage charge before the extension of that
agreement?

— On a proper construction of those directives is the
national court to uphold the interpretation of its law
which authorises it to allow, without any time-limit, a
plea of illegality vitiating the formation or extension of a
consumer credit agreement, such as that arising from
failure to state the annual percentage charge, raised by
the consumer or by the court of its own motion, in a
dispute arising from an action for payment brought by
the lender?

— If not, on a proper construction of those directives is the
court to uphold the interpretation of its law according to
which it is authorised to set aside a provision of its
national law which prohibits the consumer or the court
of its own motion from raising a plea of illegality
vitiating the formation or extension of a consumer credit
agreement after a time-limit which derogates from the
in so far as it constitutes an exceptional
general law,
restriction on the right of action of the consumer and
undermines the effectiveness of consumer protection?

(1) Council Directive 87/102/EEC of 22 December 1986 for the
approximation of the laws, regulations and administrative pro-
visions of the Member States concerning consumer credit (OJ
L 42, 12.2.1987, p. 48).

(2) Council Directive 90/88/EEC of 22 February 1990 amending
Directive 87/102/EEC for the approximation of the laws, regu-
lations and administrative provisions of
the Member States
concerning consumer credit (OJ L 61, 10.3.1990, p. 14).

Reference for a preliminary ruling by the Corte Suprema
di Cassazione by order of that Court of 11 April 2002 in
the appeal brought by Frahuil SA against Assitalia SpA

(Case C-265/02)

(2002/C 233/24)

Reference has been made to the Court of
Justice of the
European Communities by order of the Corte Suprema di
Cassazione (Supreme Court of Cassation) of 11 April 2002,
received at
for a
preliminary ruling in the appeal brought by Frahuil SA against
Assitalia SpA on the following question:

the Court Registry on 18 July 2002,

‘Is Article 5(1) of the Brussels Convention of 27 September
1968, as amended by the Convention of 9 October 1978 on
the accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland, by the
Convention of 25 October 1982 on the accession of the
Hellenic Republic, by the Convention of 26 May 1989 on the
accession of
the Kingdom of Spain and the Portuguese
Republic and by the Convention of 29 November 1996 on the
accession of the Republic of Austria, the Republic of Finland
and the Kingdom of Sweden, to be interpreted as subsuming
under the expression “matters relating to a contract” the
obligation which a guarantor who paid customs duties under
a guarantee obtained by the forwarding agent seeks to enforce
in legal proceedings by way of subrogation to the financial
authorities and by way of recourse against the third-party
debtor who is the owner of the imported goods but was
unconnected with the guarantee?’