Case C-348/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia Murcia (Spain) lodged on 30 July 2008 — Aurelio Choque Cabrera v Delegación del Gobierno en Murcia
Date: 2008-07-30
Institutions: Court of Justice
Subjects: EU law - national law, Schengen Agreement, border control, fine, foreign national, interpretation of the law, removal, residence permit

C 260/10

EN

Official Journal of the European Union

11.10.2008

Reference for a preliminary ruling from the Tribunal
Superior de Justicia Murcia (Spain) lodged on 30 July 2008
— Aurelio Choque Cabrera v Delegación del Gobierno en
Murcia

Other parties to the proceedings: Council of the European Union,
Commission of the European Communities

(Case C-348/08)

(2008/C 260/17)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia Murcia

Parties to the main proceedings

Applicant: Aurelio Choque Cabrera

Defendant: Delegación del Gobierno en Murcia

Question referred

the European Parliament and of

Should Article 62(1) and (2)(a) of the Treaty Establishing the
European Community and Articles 5, 11 and 13 of Regulation
(EC) No 562/2006 of
the
Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders
(Schengen Borders Code) (1) be
interpreted as precluding
national legislation, and the case-law which interprets it, which
permits the substitution of the expulsion of any ‘third country
national’ who does not have documentation authorising him to
enter and remain in the territory of the European Union by the
imposition of a fine?

(1) OJ 2006 L 105, p. 1.

Appeal brought on 30 July 2008 by WWF-UK Ltd against
the order of the Court of First Instance (Eighth Chamber)
delivered on 2 June 2008 in Case T-91/07, WWF-UK Ltd v
Council of the European Union

(Case C-355/08 P)

(2008/C 260/18)

Language of the case: English

Parties

Appellant: WWF-UK Ltd (represented by: R. Stein, Solicitor, P.
Sands and J. Simor, Barristers)

Form of order sought

The applicant claims that the Court should:

— quash the Order of 5 June 2008 and declare WWF's applica-

tion to the Court of First Instance (‘CFI’ ) admissible;

— order the Council and Commission to pay WWF's costs

before this Court and the Court of First Instance.

Pleas in law and main arguments

1) The CFI wrongly held that WWF's entitlement as a member
of the RAC to be involved in the decision making procedure
and the obligation on the Council to consider its views prior
to adoption of the relevant measures were not sufficient to
of
distinguish
Article 230 EC Treaty. The CFI wrongly considered that
WWF did not have procedural rights, holding that these
belonged solely to the RAC and not to its members.

‘individually’

purposes

the

for

it

considered that

erroneously
even assuming
2) The CFI
‘standing’,
judicial protection would not be aimed at safe-
guarding WWF's procedural rights and did not therefore
require judicial protection. That is an incorrect approach to
the question of standing. Providing ‘direct and individual’
concern can be shown, the Applicant is entitled to challenge
the ‘legality of the relevant measure’, which is what WWF
seeks to do in this case. WWF is not confined to challenging
a failure in the procedure, as the CFI suggest.

3) The CFI's decision is vitiated by procedural unfairness. The
CFI closed the proceedings after receiving the intervention of
the Commission dated 21 November 2007, despite having
agreed on 27 September 2007 that WWF should have the
opportunity to respond to any Commission observations.
WWF was
in
response. WWF nevertheless sent in submissions but these
were not considered by CFI prior to it reaching its determin-
ation, which makes no reference to WWF's submissions in
response to the Commission. Accordingly, there has been a
serious breach of natural justice and fair procedure by CFI.

refused permission to send observations