Case C-470/02 P: Appeal brought on 23 December 2002 by the European Broadcasting Union (EBU) against the judgment delivered on 8 October 2002 by the Second Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-185/00, T-216/00, T-299/00 and T-300/00 between Métropole télévision SA (M6), Antena 3 de Televisión, SA, Gestevisión Telecinco, SA, SIC-Sociedade Independente de Communicação, SA, supported by Deutsches SportFernsehen GmbH (DSF) and Reti Televisive Italiane Spa (RTI) and Commission of the European Communities, supported by European Broadcasting Union (EBU) and Radiotelevisión Española (RTVE)
Date: 2003-03-08
Institutions: Court of Justice
Subjects: European Broadcasting Union, General Court (EU), action for annulment (EU), cable distribution, free movement of programmes, restriction on competition, sport, television

8.3.2003

EN

Official Journal of the European Union

C 55/13

Pleas in law and main arguments

(Public
storage
EUR 37 621,55)

of olive oil,

financial

correction of

The successful tenderer fulfilled its obligation to communicate
its refusal to take over the lot, informing and notifying the
Commission thereof in fulfilment of
its obligation under
Article 10 of Regulation No 561/99 (2).

Secondly, return of the securities did not result in any loss to
the Community budget since the oil in question continued to
form part of the intervention stock, subject to that body of
rules and available to cover future operations, just as if refusal
had been communicated by the successful tenderer directly to
the Commission.

(Areas harvested for pasture by the paying agency of Castile
and Leon, financial correction of EUR 1 229 951,00)

The corrections relating to the 1998 and 1999 harvests are
the result of applying 2 % to the result of dividing the total
declared area in cases where the discrepancies detected during
administrative checks were in excess of 3 % or 2 hectares into
the total declared area.

Spain does not agree with the Commission on the proposed
financial correction because, first, Community legislation (3)
does not mean that the results of the administrative checks
should be included in the risk analysis when selecting the
checks to be made on the spot and, secondly, handling of the
applications for ‘area’ aid makes it impossible to carry out all
the administrative checks before on-the-spot checks are carried
out.

Nonetheless, in the Autonomous Community of Castile and
Leon cases in which irregularities have been detected in
the administrative checks carried out the previous year are
systematically included as a risk criterion when selecting the
sample of cases for on-the-spot checks.

( 1) Commission Decision 2002/881/EC of 5 November 2002 exclud-
ing from Community financing certain expenditure incurred by
the Member States under the Guarantee Section of the European
Agricultural Guidance and Guarantee Fund (EAGGF), OJ 2002 L
306, p. 26.

( 2) Commission Regulation (EC) No 561/1999 of 15 March 1999 on
the opening of a standing invitation to tender for the sale of olive
oil held by the Spanish intervention agency, OJ L 69, 16.1.1999,
p. 13.

( 3) Article 6(4) of Commission Regulation (EEC) No 3887/92 of

23 December 1992, OJ 1992 L 391, p. 36.

Appeal brought on 23 December 2002 by the European
Broadcasting Union (EBU) against the judgment delivered
on 8 October 2002 by the Second Chamber, Extended
Composition, of the Court of First Instance of the Euro-
pean Communities in Joined Cases T-185/00, T-216/00,
T-299/00 and T-300/00 between Métropole télévision SA
(M6), Antena 3 de Televisión, SA, Gestevisión Telecinco,
SA, SIC-Sociedade Independente de Communicação, SA,
supported by Deutsches SportFernsehen GmbH (DSF)
and Reti Televisive Italiane Spa (RTI) and Commission
of the European Communities, supported by European
Broadcasting Union (EBU) and Radiotelevisión Española
(RTVE)

(Case C-470/02 P)

(2003/C 55/22)

An appeal against the judgment delivered on 8 October 2002
by the Second Chamber, Extended Composition, of the Court
of First Instance of the European Communities in Joined
Cases T-185/00, T-216/00, T-299/00 and T-300/00 between
Métropole télévision SA (M6), Antena 3 de Televisión, SA,
Gestevisión Telecinco, SA, SIC-Sociedade Independente de
Communicação, SA, supported by Deutsches SportFernsehen
GmbH (DSF) and Reti Televisive Italiane Spa (RTI) and
Commission of the European Communities, supported by
European Broadcasting Union (EBU) and Radiotelevisión
Española (RTVE) was brought before the Court of Justice of
the European Communities on 23 December 2002 by the
European Broadcasting Union (EBU), represented by D. Wael-
broeck and M. Johnsson, lawyers.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
the European Communities of 8 October 2002 in Joined
Cases T-185/00, T-216/00, T-299/00 and T-300/00,
Métropole Télévision and Others v Commission;

— send the case back to the Court of First Instance so that it
may rule on the other pleas in law raised by the applicants
on which it has not yet ruled;

— reserve the costs.

Pleas in law and main arguments

By basing its reasoning on arguments that were not raised by
the applicants, the Court of First Instance has ruled ultra petita
and infringed the rights of the defence of the EBU and of the
Commission. The decisive element for the Court of First
Instance is the application of the sub-licensing scheme for ‘live

C 55/14

EN

Official Journal of the European Union

8.3.2003

broadcast of un-used Eurovision rights’, when such a ground
was not argued before it. By so doing, the Court of First
Instance deprived the EBU of its right, as a party to the
proceedings, to refute the points accepted by the Court. By
thus challenging a relatively marginal but no less essential
aspect such as the sub-licensing scheme rather than the
Eurovision system itself or the substance of the sub-licensing
scheme introduced at the behest of the Commission, the Court
of First Instance in fact requires the EBU to adjust that scheme
in order to grant access to non-members to rights which the
latter have not asked for nor, doubtless, wish to ask for.

Action brought on 7 January 2003 by the Hellenic
Republic against the Community of the European Com-
munities

(Case C-5/03)

(2003/C 55/24)

Reference for a preliminary ruling by the Oberlandesge-
richt Düsseldorf by order of that Court of 5 December
2002 in the case of GAT, Gesellschaft für Antriebstechnik
mbH & Co. KG against LuK Lamellen und Kupplungsbau
Beteiligungs KG

(Case C-4/03)

(2003/C 55/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Düsseldorf (Higher Regional Court Düsseldorf) of 5 December
2002, received at the Court Registry on 6 January 2003, for a
für
preliminary ruling in the case of GAT, Gesellschaft
Antriebstechnik mbH & Co. KG against LuK Lamellen und
Kupplungsbau Beteiligungs KG on the following question:

Is Article 16(4) of the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
(‘the Brussels Convention’) to be interpreted as meaning that
the exclusive jurisdiction conferred by that provision on the
the Contracting State in which the deposit or
courts of
registration of a patent has been applied for, has taken place
or is under the terms of an international convention deemed
to have taken place only applies if proceedings (with erga
omnes effect) are brought to declare the patent invalid or are
proceedings deemed to be concerned with the validity of
patents within the meaning of the aforementioned provision
where the defendant in a patent infringement action or the
claimant in a declaratory action to establish that a patent is
not infringed pleads that the patent is invalid or a nullity and
that there is also no patent infringement for that reason,
irrespective of whether the court seised of the proceedings
considers the plea to be substantiated or unsubstantiated and
of when the plea is raised during the course of the proceedings.

An action against the Commission of the European Communi-
ties was brought on 7 January 2003 by the Hellenic Republic,
represented by Stilianis Xharitakis and Eleni Svolopoulou,
members of the State legal service, with an address for service
in Luxembourg at the Greek embassy, 27 Rue Marie-Adélaïde.

The applicant claims that the Court should:

— Annul, or amend, Decision E/2002/4127 concerning
the exclusion from Community financing of certain
expenditure incurred by the Member States within the
context of the EAGGF — Guarantee section.

Pleas in law and main arguments

The financial corrections called in question by the Hellenic
Republic concern fruit and vegetables and financing for beef
cattle and goats and sheep.

As regards fruit and vegetables, the Hellenic Republic maintains
that the 2 % correction imposed for the years 1997 to 2001
concern non-existent or wholly isolated infringements of the
Community rules and must be annulled for being adopted
(a) on the basis of an erroneous interpretation and a misappli-
cation of the provisions of Regulation No 729/70, as amended;
(b) on the basis of inadequate reasoning; (c)
following a
misappraisal of the factual circumstances; (d) on the basis of a
manifest infringement of the limits of its margin of discretion,
and (e) of the principle of proportionality.

As regards financing for beefcattle and goats and sheep, the
applicant maintains that the Commission did not provide
adequate evidence of the degree of risk to which,
in its
estimation, EAGGF Funds were exposed so as to ensure that
the amount of the corrections proposed was commensurate
with that risk. In its view the financial corrections in the
amount of 10 % or 5 % imposed in those sectors should be set
aside or else reduced to 2 %.