Case C-4/06 P: Appeal brought on  4 January 2006  by J. Ouariachi against the order of the Court of First Instance (Fifth Chamber) of  26 October 2005  in Case T-124/04: J. Ouariachi v Commission of the European Communities
Date: 2006-02-25
Institutions: Court of Justice
Subjects: General Court (EU), Morocco, Spain, appeal, divorced person, duties of civil servants, illegal restraint

C 48/20

EN

Official Journal of the European Union

25.2.2006

Pleas in law and main arguments

In support of the present appeal, the appellant raises five pleas
to have the judgment under appeal set aside in part. Those
pleas are based, firstly, on an incorrect interpretation by the
Court of First Instance of the concept of 'repeated infringement'
and, secondly, on the manifest unlawfulness of the amendment
of the method of calculation of the fine which led to a decrease
in the reduction of the fine granted for attenuating circum-
stances and, accordingly, an increase in the amount of the fine
by comparison with that which would have been applicable
had the Court of First Instance reduced the increase for aggra-
vating circumstances from 50 % to 40 % without amending the
method of calculation of the fine used by the Commission.

In support of its arguments in relation to the incorrect interpre-
tation of the concept of repeated infringement, the appellant
relies on three separate pleas.

— By the first plea, the appellant maintains that the Court of
First Instance failed to take account of the principle that
offences and penalties must be defined by law and its corol-
lary, the principle of non-retroactivity of more severe crim-
inal laws, by confirming the increase in the appellant's fine
for the aggravating circumstance of repeated infringement,
in the absence of a clear and sufficiently foreseeable legal
basis.

— By its second plea, the appellant maintains that the Court
of First Instance incorrectly applied the principle of legal
certainty by refusing to limit in time the application of
the
repeated infringement, contrary to the case-law of
Court of Justice.

— Finally, by its third plea, the appellant maintains that the
is vitiated by a contradiction in the grounds
judgment
amounting to a defect in the statement of grounds in rela-
tion to the assessment of the link between repeated infrin-
gement and the need to ensure that fines be sufficiently
deterrent.

The appellant raises two further pleas in support of its argu-
ment
the
in relation to the manifestly unlawful nature of
increase in the amount of the fine decided on by the Court of
First Instance following the change in the weighting applied for
extenuating circumstances. The main plea relates to misuse of
power, lack of jurisdiction and infringement of Articles 229 EC
and 230 EC on the part of the Court of First Instance. That
plea is divided into two parts.

— The first part is based on the fact that the Court of First
Instance failed to observe the limits of its jurisdiction under
Articles 229 EC and 230 EC by varying the Commission's
decision in relation to the method of calculation of the fine.

— In the second part, the appellant complains that the Court
of First Instance ruled ultra petita in amending the percen-
tage reduction applied for attenuating circumstances and,
consequently, increasing the amount of the fine imposed on
the appellant.

In the alternative, the appellant puts forward a second plea
based on infringement of the rights of the defence and the prin-
ciple of non-retroactivity of penalties. By failing to allow discus-
sion on its intention to amend the method of calculation of the
fine and increase the amount of the fine, the Court of First
Instance acted in breach of a fundamental principle of Com-
munity law with a real impact on the ability of the appellant to
defend itself. The Court of First
Instance also retroactively
applied to the ‘Belgian Beer’ decision of 2001 case-law dating
from 2003, clarifying the method of applying the weighting for
attenuating circumstances in the method of calculation of the
fine.

(1) Regulation No 17: First Regulation implementing Articles 85 and

86 of the Treaty (OJ, English Special Edition 1959-62, p. 87).

Appeal brought on 4 January 2006 by J. Ouariachi against
the order of the Court of First Instance (Fifth Chamber) of
26 October 2005 in Case T-124/04: J. Ouariachi v Commis-
sion of the European Communities

(Case C-4/06 P)

(2006/C 48/38)

(Language of the case: French)

An appeal against the order of the Court of First Instance (Fifth
Chamber) of 26 October 2005 in Case T-124/04 J. Ouariachi v
Commission of the European Communities was brought before the
Court of Justice of the European Communities on 4 January
2006 by J. Ouariachi, Rabat
(Morocco), represented by L.
Dupong, avocat.

The appellant claims that the Court should:

— annul the contested decision and, in so doing:

— order all measures of inquiry necessary to establish the
falsification by Mr Louis Charles of certain documents,
his general conduct in connection with the abduction of
the appellant's children and the connection between the
falsification and the issue of visas to the appellant's chil-
dren by the Sudanese authorities which made their
abduction possible, including;

— Mr Louis Charles' personal appearance before the Court;

25.2.2006

EN

Official Journal of the European Union

C 48/21

— a request that information be provided by the European

Union Delegation in Khartoum;

Action brought on 11 January 2006 by the Commission of
the European Communities against the Hellenic Republic

— a request

for production of

the file lodged by Mrs
Ronda with the Sudanese Consulate in Rabat in order to
obtain a visa for herself and her children;

— all other measures necessary to establish the facts;

— declare that the application is admissible and well-founded;

— order the respondent to pay the appellant a total lump sum
indemnity of EUR 100 000 by way of compensation for
the damage suffered by him;

— order the respondent to pay all the costs.

Pleas in law and main arguments

The appellant, who has dual Spanish and Moroccan nationality,
seeks compensation for damage (assessed at EUR 100 000)
caused by Mr. L. Charles, former expert with the European
Union Delegation in Khartoum (Sudan), as a result of unlawful
acts committed in the performance of his duties and, especially,
the production of false documents: a false official
invitation
from the European Union Delegation in Khartoum enabling the
appellant's ex-wife and children to be issued with a visa by the
Sudanese Consulate in Rabat
(Morocco), which was instru-
mental in the international abduction of the appellant's chil-
dren.

The appellant considers that the Court of First Instance was
wrong in declaring his claim for compensation inadmissible
without first ordering that measures of inquiry be taken and
without clarifying:

— the wrongful nature of Mr. Charles' conduct, and

— the direct link between that wrongful conduct and the fact
that the Sudanese authorities were deceived into issuing a
visa to children without the authority of their father (the
appellant).

(Case C-13/06)

(2006/C 48/39)

(Language of the case: Greek)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 11 January
2006 by the Commission of the European Communities, repre-
sented by Dimitris Triantafillou, with an address for service in
Luxembourg.

The Commission claims that the Court should:

1. declare that, by imposing VAT on services which consist in
the provision of a vehicle-breakdown service, the Hellenic
its obligations under Article
Republic has failed to fulfil
13B(a) of the Sixth Directive; (1)

2. order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that although the Greek body ELPA
(Elliniki Leskhi Aftokinitou kai Periigiseon; Automobile &
Touring Club of Greece) which provides roadside assistance is
not subject to the insurance directives, it engages in insurance
activity for the purposes of Article 13B(a) of the Sixth VAT
Directive.

The Commission relies on the other language versions of the
directive and also:

— the principle of neutrality of VAT, which requires the same
irrespective of the

activity to be taxed in the same way,
person carrying it out;

— the fact that in case-law the term ‘insurance’ (Case C-349/
covering vehicle-breakdown

construed as

is

96 CPP)
services;

— the independence of the tax provisions vis-à-vis other Com-

munity provisions (insurance directives);

— the fact that roadside assistance by insurers is subject to the
Insurance Directive 73/239 (as amended by Directive
84/641).

(1) OJ No L 145, 13.6.1977, p.1.