Case C-262/07P: Appeal brought on 1 June 2007 by Tokai Europe GmbH against the order of the Court of First Instance (Fourth Chamber) delivered on 19 March 2007 in Case T-183/04 Tokai Europe GmbH v Commission of the European Communities
Date: 2007-07-21
Institutions: Court of Justice
Subjects: Combined Nomenclature, European Commission, General Court (EU), action for annulment (EU), admissibility, judicial proceedings, manufactured goods, rights of the defence, tobacco industry

C 170/16

EN

Official Journal of the European Union

21.7.2007

Parties to the main proceedings

Applicant: Gävle Kraftvärme AB

dures of entities operating in the water, energy, transport
and postal services sectors, or in any event by failing to
notify those provisions to the Commission, the Kingdom of
Spain has failed to fulfil its obligations under that directive;

Defendant: Länsstyrelsen i Gävleborgs län

— order the Kingdom of Spain to pay the costs.

Questions referred

Pleas in law and main arguments

1. Where a combined power and heating plant consists of a
number of units (furnaces), on interpretation of Directive
2000/76/EC (1) of
the
Council on the incineration of waste,
is each unit to be
assessed as a separate plant or is the assessment to cover the
combined power and heating plant as a whole?

the European Parliament and of

2. On interpretation of the Directive, is a plant constructed for
waste incineration but having as its main purpose the
production of energy to be classified as an incineration plant
or as a co-incineration plant?

(1) OJ L 332, p. 91.

The period within which Directive 2004/17/EC had to be trans-
posed expired on 31 January 2006.

(1) OJ 2004 L 134, p. 1.

Appeal brought on 1 June 2007 by Tokai Europe GmbH
against the order of the Court of First Instance (Fourth
Chamber) delivered on 19 March 2007 in Case T-183/04
the European
Tokai Europe GmbH v Commission of

Communities

(Case C-262/07P)

(2007/C 170/30)

Language of the case: German

Action brought on 30 May 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-254/07)

(2007/C 170/29)

Language of the case: Spanish

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Alcover San Pedro and D. Kukovec, acting as
Agents)

Defendant: Kingdom of Spain

Form of order sought

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to transpose Directive
2004/17/EC of the European Parliament and of the Council
of 31 March 2004 (1) coordinating the procurement proce-

Appellant: Tokai Europe GmbH (represented by G. Kroemer,
Rechtsanwalt)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the order of the Court of First Instance of the Euro-
pean Communities of 19 March 2007 in Case T-183/04 (1)
and declare the application to be admissible;

— in the alternative, set aside the order referred to above and
refer the case back to the Court of First Instance in order for
it to give a ruling on the substance;

— order the respondent to pay the costs.

21.7.2007

EN

Official Journal of the European Union

C 170/17

Pleas in law and main arguments

to submit relevant documents and evidence. Since this did not
happen, the Court of First Instance infringed Article 64(3)(d) of
its Rules of Procedure.

By its appeal, the appellant raises the following complaints,
which relate to the infringement by the order under appeal of
procedural requirements of Community law, by which its inter-
ests were prejudiced and which went so far as to affect the
content of the order under appeal. They relate to the observance
of the right to be heard and measures of inquiry.

(1) Not published.

The Court of First Instance ordered that the decision on the
respondent's objection of
inadmissibility should be reserved
until final judgment. Following the lodging of the response by
it closed the written procedure and indicated
the respondent,
that the date for the hearing would be notified to the parties at
a later date. The applicant had accordingly, in reliance on a date
being fixed for a hearing and, above all, on the basis of the
order made by the Court, waived its right to present a request
under Article 47(1) of the Rules of Procedure of the Court of
First Instance that the documents be supplemented. Notwith-
standing its earlier indication, the Court ultimately made the
order under appeal without there being a hearing.

The appellant proceeded on the basis that it would be able to
provide further justification at the hearing that was to be noti-
fied for its claim that there are no products on the market that
are similar to the small metal wheels that are supplied by its
Japanese parent company to manufacturers in Hong Kong and
Mexico. In addition, it was its intention to make it clear once
again that the wheels in question are not ‘friction wheels’, as the
respondent incorrectly indicated in its response. The appellant
also wished to explain at the hearing that the small metal
wheels that were represented in the disputed classification regu-
lation could only have been produced by its parent company in
Japan and that it was accordingly not a question of small metal
wheels of a generic nature as the Court of First Instance indi-
cated in the order under appeal. It also intended to rebut the
Commission's contentions that it was not the sole importer of
Tokai cigarette lighters.

However, as is clear from the order under appeal
itself, the
Court of First Instance adopted the Commission's arguments as
in its response,
to the admissibility of
without, as mentioned, giving the appellant the opportunity to
challenge the version of the events put forward by the respon-
dent. The appellant claims that this represents an infringement
of its right to a fair hearing.

the action set out

Action brought on 1 June 2007 — Commission of the
European Communities v Hellenic Republic

(Case C-264/07)

(2007/C 170/31)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and M. Konstantinidis)

Defendant: Hellenic Republic

Form of order sought

its characteristics, a review of

— declare that, by failing to draw up by 22 December 2004
for each river basin district falling within its territory an
analysis of
the impact of
human activity on the status of surface waters and on
groundwater and an economic analysis of water use,
in
in
accordance with the technical specifications set out
Annexes II and III, the Hellenic Republic has failed to fulfil
its
of Directive
2000/60/EC (1) establishing a framework for Community
action in the field of water policy, while, by failing to submit
summary reports of the analyses required under that article,
it has also failed to fulfil its obligations under Article 15(2)
of that directive;

obligations

Article

under

5(1)

— order the Hellenic Republic to pay the costs.

The Court of First Instance is also under a duty to establish the
facts. In so doing, it is not restricted in the proceedings before it
simply to establishing the facts in reliance on the requests of the
parties for measures of inquiry and to reach a decision on the
basis of the evidence led before it alone. Therefore, not only can
it take the initiative of its own motion, but it is also under a
duty to take the initiative where this is necessary. Accordingly,
the Court of First Instance was under a duty to clarify the
evidence put forward by the applicant in its written pleadings
and, by making the appropriate orders, to call upon the parties

Pleas in law and main arguments

Directive 2000/60 entered into force on 22 December 2000.
Therefore the Member States were obliged to have completed
the analyses and the review required under Article 5(1) of the
Directive by 22 December 2004 at the latest, and to submit to
the Commission a summary report concerning those analyses,
as laid down by Article 15(2) of the directive, by 22 March
2005 at the latest.