Case C-159/03 P: Appeal brought on 7 April 2003 by Jan Pflugradt against the order of the Court of First Instance of the European Communities (Fifth Chamber) of 11 February 2003 in Case T-83/02, Jan Pflugradt v European Central Bank
Date: 2003-06-07
Institutions: Court of Justice
Subjects: European Central Bank, General Court (EU), action for annulment (EU), data protection, dismissal

7.6.2003

EN

Official Journal of the European Union

C 135/17

That national of a non-Member State may not be required to
show any independent reason for entering into and residing in
is
the territory. His right, as a matter of Community law,
derived from the right enjoyed by the Community national in
such a way that to impose on that person prior formalities
concerning entry into national territory constitutes not only a
restriction on his (derived) right but also a restriction on the
principal right of the Community national.

The Commission at the same time emphasises that, in con-
formity with the general system of the Community rules on
the issue of residence permits and, with particular regard to
Article 5 of Directive 64/221, the Member State must adopt
the decision concerning the residence permit as soon as
possible and in any event not later than six months of the date
of the application, it being understood that this maximum
period of six months is to be taken into account only in
cases where examination of the application is interrupted on
grounds of public policy.

( 1) Directive 68/360 of 15 October 1968 on the abolition of
restrictions on movement and residence within the Community
for workers of Member State and their families (OJ, English Special
Edition 1968 (I), p. 485).

( 2) Directive 73/148/EEC of 21 May 1973 on the abolition of
restrictions on movement and residence within the Community
for nationals of Member States with regard to establishment and
the provision of services (OJ 1973 L 172, p. 14).

( 3) Council Directive 90/365 of 28 June 1990 on the right of
residence for employees and self-employed persons who have
ceased their occupational activity (OJ 1990 L 180 p. 28).

( 4) Directive 64/221/EEC of the Council of 25 February 1964 on the
coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of
public policy, public security or public health (OJ English Special
Edition (1963-1964) I, p. 117).

Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain

The applicant claims that the Court should:

1. Declare that, by including in the invitation to bid in
various tender procedures organised by the Instituto
Nacional de la Salud para la prestación de servicios de
terapias respiratorias domiciliarias criteria for admission,
assessment and selection which require bidders to have,
at the time of submitting the bid, certain installations on
Spanish territory, or within a radius of 1 000 kilometres
thereof, and, prior to that, public information offices in
specific locations, or that they should at the time be
providing the same kind of service, the Kingdom of Spain
has failed to fulfil its obligations under Articles 43 and 49
EC;

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the invitations to bid
relating to the tender procedures which are the subject of these
proceedings are discriminatory inasmuch as they are not
justified by any overriding reason relating to the public interest
nor do they observe the principle of proportionality.

Appeal brought on 7 April 2003 by Jan Pflugradt against
the order of the Court of First Instance of the European
Communities (Fifth Chamber) of 11 February 2003 in
Case T-83/02, Jan Pflugradt v European Central Bank

(Case C-159/03 P)

(2003/C 135/25)

(Case C-158/03)

(2003/C 135/24)

An appeal against the order of the Court of First Instance of
the European Communities (Fifth Chamber) of 11 February
2003 in Case T-83/02, Jan Pflugradt v European Central Bank,
was brought before the Court of Justice of the European
Communities on 7 April 2003 by Jan Pflugradt, represented
by Dr Norbert Pflüger, 44 Kaiserstrasse, D-60329 Frankfurt
am Main, with an address for service in Luxembourg.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana and Klaus Wiedner, of
its Legal Service, acting as Agents, with an address for service
in Luxembourg.

The appellant claims that the Court, at the same time as it sets
aside the order appealed against, should:

1. Declare the action admissible;

C 135/18

EN

Official Journal of the European Union

7.6.2003

2. Annul the respondent ECB’s formal warning of 28 Febru-

ary 2002;

Reference for a preliminary ruling by the Commission de
Conciliation et d’Expertise Douaniere (France) by decision
of that Court of 18 March 2003 in the case of Customs
against CAFOM and SAMSUNG Electronics France

3. Order the defendant to pay the costs.

Pleas in law and main arguments

The Court of First Instance of the European Communities
failed to recognise that the contested measure is an act
adversely affecting the person concerned against which an
action lies under Article 42(1) of the Conditions of Employ-
ment for staff of the ECB.

the order under appeal the
Contrary to the findings of
contested measure is not merely a preparatory act in a multi-
stage procedure which may culminate in dismissal. Rather it is
a direct and immediate infringement (a) of the general right to
protection of personality and (b) of the applicant’s right to
protection of data.

(a)

First the applicant’s general right to protection of person-
ality is directly and immediately affected because the ECB
did not confront the applicant at the appropriate time
with the allegations which formed the subject-matter of
a reproach. The applicant was thus precluded from
responding to the allegations and obtaining immediate
clarification in regard to them. Secondly, the reproach is
said to be based on inaccurate factual assertions, thus
constituting a direct and immediate infringement of the
general right to protection of personality.

(b)

In the contested order the Court of First Instance failed to
recognise the direct and immediate infringement of the
applicant’s right to data protection. The applicant’s right
to be informed, prior to collection of personal data
concerning him, of the purpose pursued thereby was
infringed by the contested act.

In particular, the Court of First Instance failed to recognise that
that infringement is not remedied even where at the end of the
procedure under Article 2.2.5 of the ECB Staff Rules it is
decided not to proceed with dismissal.

(Case C-161/03)

(2003/C 135/26)

Justice of the
Reference has been made to the Court of
European Communities by decision of the Commission de
Conciliation et d’Expertise Douaniere (Customs Arbitration
and Advisory Committee) (France) of 18 March 2003, received
at the Court Registry on 8 April 2003, for a preliminary ruling
in the case of Customs against CAFOM and SAMSUNG
Electronics France on the following questions:

1.

2.

Is Article 27 of Protocol 4 annexed to the EC/Hungary
Agreement of 13 March 1993 to be interpreted as
meaning that the authorities of the importing State must
apply the preferential arrangement established by that
Agreement when the authorities of the exporting State,
to whom they have addressed queries concerning specific
facts on which the granting of the arrangement depends,
merely declare that the products to which the certificates
of origin which they have issued relate fulfil the conditions
for granting the arrangement?

Is a reply furnished by the authorities of the exporting
State after the expiry of the 10-month period referred to
in Article 27(7) of the [Protocol] to be taken into account
in determining whether the goods in question qualify for
the preferential arrangement?

if

3. May it be inferred from Article 27(2) of the [Protocol]
the request for verification is made by the
that,
authorities of the importing State more than two years
after the disputed operations, the fact that the authorities
of the exporting State are unable to carry out that
investigation since they have not kept the necessary
documents must mean that the goods qualify for the
preferential arrangement?