Case C-78/03 P: Appeal brought on 20 February 2003 (by fax on 19 February 2003) by the Commission of the European Communities against the judgment delivered on 5 December 2002 by the Fourth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-114/00 between Aktionsgemeinschaft Recht und Eigentum eV and Commission of the European Communities, supported by the Federal Republic of Germany
Date: 2003-04-26
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), Germany, acquisition of property, action for annulment (EU), discrimination on the basis of nationality, reduced price

26.4.2003

EN

Official Journal of the European Union

C 101/23

Appeal brought on 20 February 2003 (by fax on 19 Febru-
ary 2003) by the Commission of the European Communi-
ties against the judgment delivered on 5 December 2002
by the Fourth Chamber, Extended Composition, of the
Court of First Instance of the European Communities in
Case T-114/00 between Aktionsgemeinschaft Recht und
Eigentum eV and Commission of the European Communi-
ties, supported by the Federal Republic of Germany

(Case C-78/03 P)

(2003/C 101/38)

An appeal against the judgment delivered on 5 December
2002 by the Fourth Chamber, Extended Composition, of the
Court of First Instance of the European Communities in
Case T-114/00 (1) between Aktionsgemeinschaft Recht und
Eigentum eV and Commission of the European Communities,
supported by the Federal Republic of Germany, was brought
before the Court of Justice of the European Communities on
20 February 2003 (by fax on 19 February 2003) by the
Commission of the European Communities, represented by
James Flett, of its Legal Service, and Viktor Kreuschitz, Legal
Adviser, with an address for service in Luxembourg.

The appellant claims that the Court of Justice should:

— set aside the judgment of the Court of First Instance of
5 December 2002 in Case T-114/00 Aktionsgemeinschaft
Recht und Eigentum eV v Commission;

— give a final decision in the case and in so doing dismiss
the application as inadmissible on the ground that the
contested act is not of individual concern, within the
meaning of the fourth paragraph of Article 230 EC, to
the applicant; or

— refer the case back to the Court of First Instance with

regard to the question of admissibility; and

— order the applicant to pay the costs of Case T-114/00

and of this appeal.

Pleas in law and main arguments

The Court of First Instance erred

— inasmuch as it found that its conclusion that the applicant
was individually concerned by the contested act was not
contradicted by the fact that the contested act is a measure
of general scope; and that the contested act affects the
applicant (or one of the applicant’s members) by reason
of certain attributes peculiar to the applicant or by reason

of particular circumstances in which the applicant is
differentiated from all other persons. The Court of First
Instance thereby infringed Articles 230, 232 and 234 EC
as interpreted by the Court of Justice;

— inasmuch as its findings were made on the basis that for
the purposes of the criterion of individual concern under
Article 230 EC the competitive relationship (where
competition constitutes the decisive criterion) is not the
same as when that criterion is applied to decisions under
Article 88(2) EC and Article 88(3) EC in the sphere of
State aid, so that admissibility is subject to different
criteria. The Court of First Instance thereby infringed
Articles 230, 232 and 234 EC as interpreted by the Court
of Justice;

— inasmuch as it applied a criterion of competitive relation-
ship (the applicant’s position under competition law must
be affected) which is different from, and less strict than,
the criterion established by the Court of Justice (the
applicant’s position under competition law must be
appreciably affected). The Court of First Instance thus
infringed Articles 230, 232 and 234 EC as interpreted by
the Court of Justice;

— inasmuch as it included in the judgment, of its own
motion, without hearing the views of the Commission,
the intervener or the applicant, a ground of action for the
purposes of Article 230 EC which was not contained in
the application, namely the allegation that the Com-
mission — unjustifiably — adopted its decision without
initiating the procedure under Article 88(2) EC. The Court
of First Instance thereby infringed Article 230 EC, the
Statute, the Rules of Procedure and a general principle of
Community law — the Commmission’s right to a fair
hearing;

— inasmuch as it found that the applicant was affected in
its capacity as negotiating partner and was therefore
individually concerned by the contested act. The Court of
First Instance thereby infringed Articles 230, 232 and
234 EC as interpreted by the Court of Justice as well as
the Statute, the Rules of Procedure and a general principle
of Community law — the Commission’s right to a fair
hearing;

— inasmuch as it did not set out with sufficient clarity the
reasons on which the contested judgment was based. The
Court of First Instance thereby infringed Article 253 EC;

— inasmuch as it

found, with regard to the applicant’s
advice during the procedure under the provisions on
State aid, that on the one hand the applicant had not
been consulted and on the other hand had been consulted
sufficiently for it
to have acquired the status of a
negotiating partner. By at least one of these findings or
— in the Commission’s view — by both findings, the
Court of First Instance completely distorted the facts of

C 101/24

EN

Official Journal of the European Union

26.4.2003

the case and made a manifest error of assessment. The
Court of First Instance thus infringed Articles 230, 232
and 234 EC as well as the Statute and the Rules of
Procedure.

( 1) OJ C 44 of 22.2.2003.

Action brought on 21 February 2003 by Commission of
the European Communities against Kingdom of Spain

(Case C-79/03)

(2003/C 101/39)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 21 Febru-
ary 2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by tolerating the practice of hunting with
birdlime in the Autonomous Community of Valencia,
governed by Decree 135/2000 of 12 September 2000 of
the Government of Valencia laying down conditions and
requirements for the granting of special permits for the
hunting of thrush with birdlime in the Community of
Valencia, the Kingdom of Spain has failed to fulfil its
obligations under Article 8(1) and Article 9(1) of Council
Directive 79/409/EEC (1) of 2 April 1979 on the conser-
vation of wild birds.

— order the Kingdom of Spain to pay the costs.

The Commission takes the view that there are alternative
methods for capturing thrushes with the aim of avoiding
damage to crops, such as hunting with rifles or employing
auditory or visual deterrents using flare guns, vibrating tapes
or a combination of such methods. In other Spanish regions
(Andalusia, Castilla-La Mancha, etc) there are extensive areas
of olive groves and vineyards where hunting with lime is not
permitted and where hunting with rifles in autumn and winter
is considered adequate protection.

Finally, the derogation under Article 9(1)(c) of Directive 79/
409/EEC cannot apply in view of the fact that the parany is a
non-selective hunting method and the high number of speci-
mens captured.

(1) OJ 1979 L 103, p. 1.
(2) According to Article 4(1) of Decree 135/2000, ‘the only species
whose capture is permitted are the following: song thrush (Turdus
philomenus), fieldfare (Turdus pilares), redwing (Turdus iliacus)
and mistle thrush (Turdus viscivorus)’.

Action brought on 24 February 2003 (by fax on 21 Febru-
ary 2003) by the Commission of the European Communi-
ties against the Republic of Austria

(Case C-81/03)

(2003/C 101/40)

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 February 2003 (by fax on 21 February 2003) by the
Commission of the European Communities, represented by
Maria Patakia, Legal Adviser in the Commission’s legal service
and Claudia Schmidt, a member of the Commission’s legal
service, with an address for service at the office of Luis Escobar
Guerrero, a member of the Commission’s legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.

Pleas in law and main arguments

The Commission claims that the Court should:

The ‘parany’ is an arrangement intended for the capture of
thrush (2), which requires the use of small twigs impregnated
with birdlime. Hunting with birdlime is a non-selective method
of capture, as referred to in Annex IV(a) to Directive 79/409/
EEC and, accordingly, prohibited under Article 8 thereof, since
it cannot be guaranteed that birds of the species listed in
Annex I to Directive 79/409/EEC or other protected migratory
or non-hunting species are not caught in the parany and
trapped in the lime.

1.

declare that, by prohibiting, under Paragraph 7a of
the Bundesgesetz über die Regelung der gehobenen
medizinisch-technischen Dienste (Federal Law on the
Regulation of Higher Medico-Technical Services; ‘MTD-
Gesetz’), the independent exercise in Austria of certain
medico-technical professions
(laboratory, radiological
and orthoptic services), the Republic of Austria has failed
to fulfil its obligations under Articles 43 and 49 EC;

2.

order the Republic of Austria to pay the costs.