Case C-229/05 P: Appeal brought on 18 May 2005 by Osman Ocalan, on behalf of the Kurdistan Worker's Party (PKK) and Serif Vanley, on behalf of the Kurdistan National Congress (KNK) against the order made on 15 February 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-229/02, between Kurdistan Workers' Party (PKK) and Kurdistan National Congress (KNK) and the Council of the European Union, supported by the United Kingdom of Great Britain and Northern Ireland and by the Commission of the European Communities
Date: 2005-10-01
Institutions: Court of Justice
Subjects: General Court (EU), appeal, formation of a party, international sanctions, judicial proceedings, terrorism

C 243/2

EN

Official Journal of the European Union

1.10.2005

Appeal brought on 4 May 2005 by Energy Technologies
ET SA against the order made on 28 February 2005 by the
Fourth Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-445/04 between Energy
Technologies ET SA and the Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM),
the other party to the proceedings before the Board of
Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) being Aparellaje eléc-
trico, SL

Appeal brought on 18 May 2005 by Osman Ocalan, on
behalf of the Kurdistan Worker's Party (PKK) and Serif
Vanley, on behalf of the Kurdistan National Congress
(KNK) against the order made on 15 February 2005 by the
Second Chamber of the Court of First Instance of the
European Communities in Case T-229/02, between Kurdi-
stan Workers' Party (PKK)
and Kurdistan National
Congress (KNK) and the Council of the European Union,
supported by the United Kingdom of Great Britain and
Northern Ireland and by the Commission of the European
Communities

(Case C-197/05 P)

(2005/C 243/03)

(Case C-229/05 P)

(2005/C 243/04)

(Language of the case: English)

(Language of the case: English)

An appeal against the order made on 28 February 2005 by the
Fourth Chamber of the Court of First Instance of the European
Communities in case T-445/04 (1) between Energy Technolo-
gies ET SA and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), the other party to
the proceedings before the Board of Appeal of the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs) being Aparellaje eléctrico, SL, was brought before the
Court of Justice of the European Communities on 4 May 2005
by Energy Technologies ET SA, established in Fribourg (Swit-
zerland), represented by Ms A. Boman.

The Appellant

1) claims that the Court annuls the contested decision and
remands the case to the Court of First Instance for trial of
the trade mark matter.

An appeal against the order made on 15 February 2005 by the
Second Chamber of the Court of First Instance of the European
Communities in Case T-229/02 (1), between the Kurdistan
Worker's Party (PKK) and the Kurdistan National Congress
(KNK) and the Council of the European Union, supported by
United Kingdom of Great Britain and Northern Ireland and by
the Commission of the European Union, was brought before
the Court of Justice of the European Communities on 18 May
2005 by Osman Ocalan, on behalf of the Kurdistan Worker's
Party (PKK) and Serif Vanley, on behalf of
the Kurdistan
National Congress, established in Brussels, Belgium, represented
by M. Muller and E. Grieves, barristers,
instructed by J.G.
Pierce, solicitor.

The Appellants claim that the Court should:

1. declare that the Application of Osman Ocalan on behalf of
the organisation formerly known as the PKK is admissible;

2) requests further respite of six months in order to be able to
evaluate the need for further substantiation of this appeal
and possibly for submittance of expert opinion.

2. declare that the Application of Serif Vanly on behalf of the

organisation known as the KNK is admissible;

Pleas in law and main arguments:

In the appealed decision the Court of First Instance dismissed
the application on the grounds that Energy Technologies ET SA
was not represented by a lawyer pursuant to Article 19 of the
Statute of the Court of Justice.

The appellant claims that the Court of First Instance has misin-
terpreted Article 19 of the Statute of the Court of Justice and
that its finding that the appellant was not represented by a
lawyer within the terms of that Article is incorrect.

(1) OJ C 182, 23.07.2005, p. 36

3. make an order
proceedings.

for costs

relating to the admissibility

Pleas in law and main arguments:

The First Applicant appeals the Ruling on the following
grounds:

It is submitted that the ruling is erroneous as the Court of First
Instance had already accepted that the first applicant existed
and had the requisite capacity to institute proceedings, nomi-
nate legal representatives, and respond to pleadings. On the
face of the papers the first applicant's power of attorney plainly
complied with Article 44 of the rules of procedure of the Court
of First Instance governing such powers. The said power was
neither contested by the defendant nor the Court when it
communicated the application to the defendant in accordance
with the normal rules governing receipt of a valid power of
attorney.

1.10.2005

EN

Official Journal of the European Union

C 243/3

The defendant's objection relating to capacity due to alleged
PKK dissolution is contrary to Article 114(1) (formerly Article
91) of the rules of procedure as it goes to the substance of the
the objection should not have been
application.
considered or dealt with at the admissibility stage.

In short,

The Court of First Instance erred in its application of the admis-
sibility criteria and in relying upon an assumption that the PKK
no longer exists, thereby assuming a substantive issue in order
to defeat the claim on admissibility.

(1) OJ C 143, 11.06.2005, p. 34

Likewise, the Court's ruling on capacity, arising out of a provi-
sional construction of
the first applicant's case concerning
dissolution, constituted an irregular de facto ruling upon a
matter of substance which should not have been made at this
state of proceedings. Such a ruling contradicts the Court's
injunction that the ‘reality of PKK's existence’ was a matter of
substance not to be examined at the admissibility stage.

The Court's construction of the first applicant's case on dissolu-
tion is wholly misplaced in any event. A close reading of Mr
Ocalan's statement does not confirm that the PKK had dissolved
for all purposes, including the purpose of challenging proscrip-
tion.

Even if the Court was correct in construing the first applicant's
case as conclusively resting upon an unreserved assertion of
dissolution,
it is submitted that the issue of residual rights,
including the right to an effective remedy to challenge proscrip-
tion, remained live as a matter of substance which should have
been dealt with at a later stage.

It is also submitted that the Court's criteria concerning admissi-
bility, including ‘capacity’ and the test regarding ‘individual and
direct concern’,
is far too restrictive in cases concerning the
operation of fundamental freedoms. In particular, the narrow
and restrictive criteria applied by the Court breach Articles 6,
13 and 34 of the European Convention on Human Rights and
related jurisprudence concerning locus standi.

Further, irrespective of the test to be applied, it is oppressive,
disproportionate and contrary to the rules of natural justice for
a court to completely shut out an applicant asserting a breach
of fundamental rights solely upon a provisional construction of
the applicant's case.

The Second Applicant submits that:

Reference for a preliminary ruling from the Rechtbank
Rotterdam by interim decision of that court of 8 June
2005 in the criminal proceedings against OMNI Metal
Service

(Case C-259/05)

(2005/C 243/05)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by interim decision of
the Rechtbank
Rotterdam of 8 June 2005, received at the Court Registry on
20 June 2005, for a preliminary ruling in the criminal proceed-
ings against OMNI Metal Service on the following questions:

1. Can cable scrap such as that in issue in the present case (in
part with a diameter of 15 cm) be classified as ‘electronic
scrap (e.g. … wire, etc.)’ within the terms of Code GC 020
of the green list? (1)

2. If the Court of Justice should answer Question 1 in the
negative, can or must a combination of green list materials,
which is not as such mentioned in the green list, be
regarded as a green list material and may that combination
of materials be transported for purposes of recovery without
the notification procedure being applicable?

3. Is it necessary in this connection that the waste materials be

offered or transported separately?

(1) Annex II to Council Regulation (EEC) No 259/93 of 1 February
1993 on the supervision and control of shipments of waste within,
into and out of the European Community (OJ 1993 L 30, p. 1)