Case C-521/03 P: Appeal brought on 15 December 2003 by Internationaler Hilfsfonds e.V. against the order made on 15 October 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-372/02 between Internationaler Hilfsfonds e.V. and the Commission of the European Communities
Date: 2004-03-06
Institutions: Court of Justice
Subjects: ECHO, European Commission, action for annulment (EU), administration of the Institutions, humanitarian aid

6.3.2004

EN

Official Journal of the European Union

C 59/5

Appeal brought on 15 December 2003 by Internationaler
Hilfsfonds e.V. against the order made on 15 October
2003 by the Fifth Chamber of the Court of First Instance
of the European Communities in case T-372/02 between
Internationaler Hilfsfonds e.V. and the Commission of the
European Communities

misinterpreted both the content and the significance of these
letters and, thus, made a judicial error creating negative legal
consequences for the Appellant. The Court did not apply the
rule of Article 48 of the Rules of Procedure, that consideration
of the admissibility of the plea shall be reserved for final
judgment.

(Case C-521/03 P)

(2004/C 59/08)

An appeal against the order made on 15 October 2003 by the
Fifth Chamber of the Court of First Instance of the European
Communities in case T-372/02 (1) between Internationaler
Hilfsfonds e.V. and the Commission of the European Com-
munities, was brought before the Court of Justice of the
European Communities on 15 December 2003 by Interna-
tionaler Hilfsfonds e.V., (hereinafter ‘IH’), established in Ros-
bach (Germany), represented by H. Kaltenecker, lawyer.

The Appellant claims that the Court should:

— quash the order of
15 October 2003;

the Court of First

Instance of

— order the Respondent to bear the cost of the procedure.

Pleas in law and main arguments

The Appellant submits that the Court of First Instance has
been guilty of a serious breach of procedure in not organising
an oral procedure, thus preventing the Appellant from pre-
senting in detail its views on the question of the admissibility
of its action. The Court was not correct in considering that
there existed any absolute bar to proceeding with the action.
Also, the Court ignored the fact that the Defendant had not
applied for a decision on admissiblity by separate document.

The Court of First Instance has, on the contrary, based its
deliberations on a letter from the Defendant of 19 July 2001
which was, however, nothing more than a reply to ongoing
discussions between ECHO and the Appellant in the course of
that year. IH was not able to recognise it as a ‘decision’. The
contested decision (letter of 22 October 2002, signed on
behalf of the responsible member of the Commission to
whom the Appellant had addressed a request for decision on
27 August 2002) was, indeed, the final decision which closed
the debate between the parties. The Court of First Instance has

The Court of First Instance committed a further procedural
error by not accepting the final observations of the Appellant
of 14 October 2002 as part of the file of pleadings. According
to Article 48 of the Rules of Procedure, new evidence may be
intoduced if based on matters of law or fact which come to
light during the course of the procedure. The Appellant has
confirmed that
the ECHO message was only discovered
recently. The Court had not informed the Appellant that the
written procedure had been closed.

The Court of First Instance has, furthermore, to be held
responsible for not having organised an inquiry, in accordance
with normal procedural practice, into the question of why
ECHO did not reopen the file of the Applicant after it had
received the positive (although late) reaction of the German
Foreign Office with regard to the situation of the Applicant.

The Court of First Instance, by including in its deliberations
matters of substance, has erroneously based its considerations
on Regulation (EC) No 1257/96 (2) although that Regulation
entered into force after the application by IH for signing the
first FPA.

The Court has not addressed in its deliberations the ‘suspen-
sion’ of the treatment of IH’s application, which had been
defined as an illegal measure by the European Ombudsman.
The Court has ignored the fact that neither the earlier rules on
cooperation with ECHO nor the new Regulation (EC) No 1257/
96 include any reference to the need for consultation of
national authorities.

The Court of First Instance has not given any weight to the
decisions of the European Ombudsman (1702/2001/GG) who
had declared ECHO guilty of four acts of maladministration
and pronounced a certain number of critical remarks.

With regard to another matter of substance, the Court has,
according to the terms of its order, disregarded the rules
applicable to audits which the ECHO-staff wanted to undertake
at the IH-office. In particular, it has not checked the question
of the application of the principle of subsidiarity. Nor has the

C 59/6

EN

Official Journal of the European Union

6.3.2004

Court taken into account that neither the former rules nor the
new Regulations include a reference to audits. The audit
proposed by ECHO had a discriminatory character in so far as
there was no justification given for undertaking such an audit
once the German Foreign Office had confirmed the legal status
of IH as a charitable organisation.

(1) OJ C 31, 8.2.2003, p. 21.
(2) of the Council, of 20 June 1996, concerning humanitarian aid (OJ

L 163, 2.7.1996, p. 1).

Action brought on 15 December 2003 by the Commission
of the European Communities against Biotrast AE, Anoni-
mi Eteria Tekhnologion Aikhmis

(Case C-523/03)

(2004/C 59/09)

An action against Biotrast AE, Anonomi Eteria Tekhnologion
Aikhmis, was brought before the Court of Justice of the
European Communities on 15 December 2003 by the Com-
mission of the European Communities, represented by Dimitris
Triantafillou, of its Legal Service, and by Nikolaos Koroyian-
nakis, of the Athens Bar, with an address for service in
Luxembourg. The applicant claims that the Court should:

order the defendant:

(a)

to pay the amount of EUR 730 726,81, representing a
capital sum of EUR 661 838,82 and daily interest of EUR
68 887,99, from the date on which the debit note fell
due with interest at 4,77 % until 31.12.2002 and 6,77 %
from 11.2003;

(b)

to pay interest in the amount of EUR 122,75 per day
from 31.10.2003 until the debt is repaid in full;

(c)

to pay the costs.

Pleas in law and main arguments

(a) There is an obligation to repay the amount unduly paid

by the Commission.

(b) The date on which interest became payable.

Action brought on 16 December 2003 by the Commission
of the European Communities against G. & E. Gianniotis
EPE, trading as ‘Nosokomio Agia Eleni’

(Case C-524/03)

(2004/C 59/10)

An action against G. &. E. Gianniotis EPE, trading as ‘Nosoko-
mio Agia Eleni’ was brought before the Court of Justice of
the European Communities on 16 December 2003 by the
Commission of the European Communities, represented by
Dimitri Triandafilou of its Legal Service, assisted by Nicolao
Korogiannakis, of the Athens Bar, with an address for service
in Luxembourg.

The applicant claims that the Court should order the defendant:

(a)

to pay the amount of EUR 236 977,73, comprising the
principal sum of EUR 212 010,17 and daily interest of
EUR 24 697,76 from the date of each debit note until
31 October 2003;

(b)

to pay interest in the amount of EUR 42,16 per day as
from 31 October 2003 until payment in full of the debt;

(c)

to pay the costs.

Pleas in law and main arguments

(a)

Liability to repay the amount unduly paid by the Com-
mission;

(b) Date on which interest became payable.

Action brought on 16 December 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-525/03)

(2004/C 59/11)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 16 December
2003 by the Commission of the European Communities,
represented by Klaus Wiedner and Claudio Loggi, acting as
Agents.