Case C-367/04 P: Appeal brought on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l) against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA
Date: 2004-11-20
Institutions: Court of Justice
Subjects: General Court (EU), Italy, State aid, action for annulment (EU), admissibility, interest in bringing an action, postal service, restriction on competition

C 284/8

EN

Official Journal of the European Union

20.11.2004

(2) If the reply to the first question is affirmative, is it suffi-
cient, in order to satisfy the requirements of the abovemen-
tioned provision of Directive 93/37/EEC, for the document
to mention the specific discount offered by the tenderer for
one or more groups of prices adjudged by the contracting
authority to be problematic or must the latter also indicate
the reasons why it regards such discount as problematic by
providing a reasoned appraisal concerning the maximum
cost for carrying out the relevant works?

having characteristics analogous to those of the mathema-
tical method described in the grounds of this order?

(2) If the reply to the first question is affirmative, is it suffi-
cient, in order to satisfy the requirements of the abovemen-
tioned provision of Directive 93/37/EEC, for the document
to mention the specific discount offered by the tenderer for
one or more groups of prices adjudged by the contracting
authority to be problematic or must the latter also indicate
the reasons why it regards such discount as problematic by
providing a reasoned appraisal concerning the maximum
cost for carrying out the relevant works?

Reference for a preliminary ruling by the Simvoulio tis
Epikratias — by order of that court of 30 July 2004 in the
case of Tholos Anonimi Tekniki Touristiki Emboriki Pliro-
foriki Biomekaniki Eteria (Tholos AE) against the Ministry
of the Environment, Planning and Public Works supported
by the interveners (1) Sindesmos Teknikon Etaireion
Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki
Etairia, ‘Thessaliki ATE’

(Case C-365/04)

(2004/C 284/16)

Appeal brought on 24 August 2004 (Fax: 20.08.04) by
Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly
operating under the name of DHL International S.r.l)
against the order made on 27 May 2004 by the Court of
the European Communities (Second
First
Chamber, Extended Composition)
in Case T-358/02
between Deutsche Post AG and DHL International S.r.l.
and the Commission of
the European Communities,
supported by the Italian Republic and Poste Italiane SpA

Instance of

(Case C-367/04 P)

(2004/C 284/17)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Simvoulio tis Epikratias
(Council of State, 4th Section, Greece) of 30 July 2004,
received at the Court Registry on 20 August 2004, for a preli-
minary ruling in the case of Tholos Anonimi Tekniki Touristiki
Emboriki Pliroforiki Biomekaniki Eteria (Tholos AE) against the
Ministry of the Environment, Planning and Public Works and
against
(1) Sindesmos Teknikon Etaireion
Anoteron Taxeon and (2) Thessaliki Anonimi Tekniki Etairia,
‘Thessaliki ATE’, on the following questions:

the interveners

(1) Must Article 30(4) of Council Directive 93/37/EEC of 14
June 1993 concerning the coordination of procedures for
the award of public works contracts (OJ 1993 L 199,
p. 54) be interpreted as meaning that,
in the case of a
tendering procedure such as that described in the grounds
hereof (offers not accompanied by a justificatory report,
indicating the specific discount percentages applied to each
group of prices and verification as to whether discounts are
at a normal level), the contracting authority is required to
give a specific content to the document in which it requests
a bidder to provide explanations concerning an offer which
has been adjudged abnormally low in regard to a threshold
determined by application of a mathematical method

An appeal against the order made on 27 May 2004 by the
Court of First Instance of the European Communities (Second
Chamber, Extended Composition) in Case T-358/02 between
Deutsche Post AG and DHL International S.r.l. and the
Commission of the European Communities, supported by the
Italian Republic and Poste Italiane SpA, was brought before the
Court of Justice of the European Communities on 24 August
2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express
(Italy) S.r.l. (formerly operating under the name of DHL Interna-
tional S.r.l.), represented by Jochim Sedemund and Thomas
Lübbig, lawyers at Freshfields Bruckhaus Deringer, Potsdamer
Platz 1, D-10785 Berlin.

The appellants claim that the Court should:

1. set aside the order of the Court of First Instance of 27 May
2004 in Case T-358/02 (1), and declare the action brought
by Deutsche Post AG and DHL Express
(Italy) on 3
December 2002 admissible.

2. order the respondent and the interveners to pay the costs.

20.11.2004

EN

Official Journal of the European Union

C 284/9

Pleas and main arguments:

(c) contrary to the principle of equal treatment; and/or

The appeal concerns the order of the Court of First Instance of
27 May 2004 in Case T-358/02 (DPAG and Others v Commis-
sion). By this order, the Court of First Instance dismissed the
action brought on 3 December 2002 by Deutsche Post AG and
DHL Express (Italy) S.r.l. as inadmissible. In the Court's view
the applicants were unable to show that the conditions for
locus standi were fulfilled. Conversely, the applicants assert on
appeal that the Commission's decision is of direct and indivi-
dual concern to them and that they therefore have standing for
the purposes of the fourth paragraph of Article 230 EC. Since
the applicants also possess the necessary legal
the
above mentioned order of the Court of First Instance of 27
May 2004 should, in the applicants' submission, be set aside
and the action brought by Deutsche Post AG and DHL Express
(Italy) on 3 December 2002 be declared admissible.

interest,

(1) OJ C 228 of 11.9.2004.

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen's Bench Division
(Administrative Court), by order of that court dated 24
August 2004, in the case of The Queen on the application
of South Western Fish Producers' Organisation Ltd and
others against Secretary of State for Environment, Food
and Rural Affairs

(Case C-388/04)

(2004/C 284/18)

the High Court of

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
Justice
(England & Wales), Queen's Bench Division (Administrative
Court), dated 24 August 2004, which was received at the Court
Registry on 10 September 2004 for a preliminary ruling in the
case of The Queen on the application of South Western Fish
Producers' Organisation Ltd and others and Secretary of State
for Environment, Food and Rural Affairs on the following ques-
tions:

Are Article 12 and paragraph 6 of Annex V of Council Regu-
lation (EC) 2287/2003 (1),
insofar as they apply to vessels
carrying gear in the class referred to in paragraph 4(b) of that
Annex, unlawful in their application to ‘chain mat’ beam traw-
lers operating in the Eastern Channel because they are:

(a) contrary to Articles 33 and 34 EC;

(b) disproportionate;

(d) contrary to the Claimant's right to earn a living free from

unnecessary constraint?

(1) Regulation of 19 December 2003 fixing for 2004 the fishing oppor-
tunities and associated conditions for certain fish stocks and groups
of fish stocks, applicable in Community waters and, for Community
vessels, in waters where catch limitations are required (OJ L 344,
31.12.2003, p. 1).

Appeal brought on 22 September 2004 by Sumitomo
Metal Industries Ltd against the judgment delivered on 8
July 2004 by the Second Chamber of the Court of First
Instance of the European Communities in joined cases T-
67/00, T-68/00, T-71/00 and T-78/00 between JFE Engi-
neering Corp., Nippon Steel Corp., JFE Steel Corp. and
Sumimoto Metal Industries Ltd and the Commission of
the European Communities

(Case C-403/04 P)

(2004/C 284/19)

An appeal against the judgment delivered on 8 July 2004 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in joined cases T-67/00, T-68/00, T-71/00
and T-78/00 between JFE Engineering Corp., Nippon Steel
Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and
the Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
22 September 2004 by Sumitomo Metal Industries Ltd, estab-
lished in Osaka, Japan, represented by C. Vajda QC and G.
Sproul, Solicitor.

The Appellant claims that the Court should:

(i) allow the Appeal, in whole or in part, against the judgment
in joined cases T-67/00, T-68/00, T-71/00 and T-78/00
and set aside, in whole or in part, the said judgment;

(ii) annul, in whole or in part, Articles 1 and 3 to 6 of the

Decision in so far as they are addressed to SMI;

(iii) order, if appropriate, the Commission to pay compensa-
tion to SMI for the breach of Article 6(1) of the ECHR a
sum of not less than EUR 1,012,332, being the aggregate
of EUR 217,183 (the extra cost of the bank guarante), EUR
620,249 (the extra cost of the default interest), and EUR
175,000; and

(iv) order the Commission to pay SMI's costs, both before the

Court and the Court of First Instance.