Case C-259/05: 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
Date: 2005-10-01
Institutions: Court of Justice
Subjects: electric cable, electronic waste, interpretation of the law, waste management, waste recycling

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)