Case C-517/06: Action brought on 20 December 2006 — Commission of the European Communities v Republic of Austria
Date: 2007-02-24
Institutions: Court of Justice
Subjects: Austria, European Commission, access to information, action for failure to fulfil an obligation, data collection, dissemination of information, national implementing measure, public sector

C 42/14

EN

Official Journal of the European Union

24.2.2007

assessment of the factual and economic evidence for that of the
Commission, an exercise that
is not permissible in judicial
review. However, given that the Commission shares the ultimate
conclusions reached by the Court,
i.e that the agreement in
question produced anticompetitive effects, it does not intend at
this stage to raise grounds of appeal against this part of the
judgment.

The present appeal raises two series of pleas. The first series
relates to the findings concerning Article 81(1), and in particular
the errors of law and distortions in the interpretation and appli-
cation of the notion of ‘object’ in the provision, as well as the
many distortions, errors of law, and inadequacies or contradic-
tions in the reasoning in relation with ‘legal and economic
context’ of the agreement. The second series of pleas relates to
the findings under Article 81(3):
those
relating to the first condition contemplated in this provision,
but also the lack of examination of several other conditions.

first and foremost

pean Communities v Ferriere Nord SpA infringes the first paragraph
of Article 230 EC, read in conjunction with Article 249 EC,
concerning the interpretation of the concept of an act against
which proceedings can be brought, fails to state reasons or
states incorrect reasons and is vitiated by a lack of jurisdiction
on the part of the Court of First Instance.

first

the applicant at

Instance did not demonstrate that

The Court of First
the
contested acts produced binding legal effects likely to affect the
interests of
thereby bringing
about a significant change in its legal position. The Court of
First
Instance also based its finding of admissibility on the
assumption, also unsubstantiated, that a presumption of lawful-
ness attached to the acts contested at first instance. Lastly, the
Court of First Instance exceeded the powers conferred on it by
the Treaty.

instance,

Appeal brought on 20 December 2006 by the Commission
of the European Communities against the judgment of the
Court of First
Instance (First Chamber) delivered on
27 September 2006 in Case T-153/04 Ferriere Nord SpA v
Commission of European Communities

(Case C-517/06)

(2007/C 42/24)

Language of the case: German

Action brought on 20 December 2006 — Commission of
the European Communities v Republic of Austria

(Case C-516/06 P)

(2007/C 42/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Braun and E. Montaguti)

Parties

Defendants: Republic of Austria

Appellant: Commission of the European Communities (repre-
sented by: V. Di Bucci and F. Amato, Agents)

Form of order sought

Other party to the proceedings: Ferriere Nord SpA

The Court is asked to:

Form of order sought

— The Court

is asked to set aside the judgment appealed
against in so far as it declares admissible the action for
annulment brought by Ferriere Nord against the Commis-
sion's letter of 5 February 2004 and its fax of 13 April
2004;

— declare inadmissible and accordingly dismiss the action for
annulment brought by Ferriere Nord against the contested
acts;

— order Ferriere Nord to pay the costs of the proceedings,
together with the costs of the proceedings at first instance.

— declare that, by failing to adopt, in the Steiermark and Salz-
burg Länder, the laws, regulations and administrative provi-
sions necessary to comply with Directive 2003/98/EC of the
European Parliament and of the Council of 17 November
2003 on the re-use of public sector information (1) or, in
any event, by failing to communicate them to the Commis-
sion, the Republic of Austria has failed to fulfil its obliga-
tions under that directive;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired
on 1 July 2005.

Pleas in law and main arguments

(1) OJ 2003 L 345, p. 90.

In so far as it declares admissible the action brought at first
Instance of
instance,
27 September 2006 in Case T-153/04 Commission of the Euro-

the Court of First

the judgment of