Case C-501/08 P: Appeal brought on 20 November 2008 by Município de Gondomar against the order made by the Court of First Instance (Fourth Chamber) on 10 September 2008 in Case T-324/06 Município de Gondomar v Commission
Date: 2008-11-20
Institutions: Court of Justice
Subjects: Cohesion Fund, European Commission, Portugal, appeal, balance of payments assistance, decontamination, fraud, redemption

C 19/18

EN

Official Journal of the European Union

24.1.2009

Parties to the main proceedings

Applicant: Ingeniørforeningen i Danmark for Ole Andersen

Rules of Procedure of the Court of Justice or, alternatively,
that the decision as to costs should be reserved to the judg-
ment or order closing the proceedings.

Defendant: Region Syddanmark

Question referred

the prohibition of direct or

Is
indirect discrimination on
grounds of age contained in Articles 2 and 6 of Council Direc-
tive 2000/78/EC (1) to be interpreted as precluding a Member
State from maintaining a legal situation whereby an employer,
upon dismissal of a salaried employee who has been continu-
ously employed in the same undertaking for 12, 15 or 18 years,
must, upon termination of the salaried employee's employment,
pay an amount equivalent to one, two or three months' salary
respectively, but as meaning that this allowance is not to be
paid where the salaried employee, upon termination of employ-
ment, is entitled to receive an old-age pension from a pension
scheme to which the employer has contributed?

(1) OJ L 303, 2.12.2000, p. 16.

Appeal brought on 20 November 2008 by Município de
Gondomar against the order made by the Court of First
Instance (Fourth Chamber) on 10 September 2008 in Case
T-324/06 Município de Gondomar v Commission

(Case C-501/08 P)

(2009/C 19/32)

Language of the case: Portuguese

Parties

Appellant: Município de Gondomar (represented by J.L. da Cruz
Vilaça and L. Pinto Monteiro, advogados)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

Pleas in law and main arguments

1. ERROR OF LAW IN THE ASSESSMENT OF THE CONDITION OF

DIRECT CONCERN AND FAILURE TO STATE GROUNDS

The Município de Gondamar considers that the Portuguese legal
order includes special features that ought to lead to an interpre-
tation other than that made by the Court of First Instance in its
order in Case T-324/06 declaring the action inadmissible, which
is marred by errors of law.

It is clear from the Portuguese legislation,
in particular from
Articles 18 and 20 of the Regulation giving effect to the Cohe-
sion Fund in Portugal, approved by the single article of Decree-
Law No 191/2000 of 16 August 2000, that the Portuguese
Republic enjoys no latitude at all in deciding whether or not to
maintain the assistance allocated by the Cohesion Fund to the
Município de Gondamar as the body responsible for the execu-
tion of the project,
leading thus to the conclusion that the
Commission's decision to cancel the aid granted by the Cohe-
sion Fund is of an automatic nature,
the legislation
concerned does not permit the bodies responsible for perfor-
mance to be relieved of the duty to reimburse the sums over-
paid.

for

The Court of First Instance,
in its order in Case T-324/06
declaring the action inadmissible, refrained from making any
reference to that question and so, the latter being an essential
point for the purpose of determining whether the action is
Instance erred in law, with
admissible,
immediate effects on the exercise of
the procedural rights
conferred by Article 230 EC.

the Court of First

As a result of that failure to rule on the matter, the order is
vitiated because the statement of grounds is lacking or defective.
In accordance with Community case-law and legal writings,
there is a general duty to state the reasons for the decisions
made by administrative and judicial bodies, so as to make it
easier for the Court of Justice to perform its task of judicial
review.

Instance's

failure to give a decision
The Court of First
concerning the special features of the Portuguese legal order
constitutes a failure to state the grounds capable of seriously
affecting the appellant's interests.

— A decision setting aside the order of

the Court of First
Instance and declaring admissible the action for annulment
of Commission Decision C(2006) 3782 of 16 August 2006
on the cancellation of the financial assistance granted by the
Cohesion Fund;

— alternatively, a decision setting aside the order of the Court
of First Instance and ordering the case to be referred back to
the Court of First Instance for it to give another decision;

— an order that the European Commission should pay all the
costs including the appellant's, pursuant to Article 69 of the

2. BREACH OF
PROTECTION

THE

PRINCIPLE OF

EFFECTIVE

JUDICIAL

The Município de Gondamar further considers that it runs the
risk of being denied its right to effective judicial protection, for
want of means of obtaining redress at the domestic level by
which it might challenge the demand for reimbursement of the
financial assistance granted by the Cohesion Fund, given that
the measure notifying it of the Commission's decision to cancel
the financial assistance granted by the Cohesion Fund is not a
measure actionable under domestic law.

24.1.2009

EN

Official Journal of the European Union

C 19/19

The communication of the Commission's decision, unactionable
at domestic level, was made by letter of the sectorial manage-
ment body for the Cohesion Fund of the Ministry of the Envir-
onment, dated 25 September 2006, that letter doing no more
than ‘notify’ the Commission's decision, the latter being the act
with operative content.

Appeal brought on 25 November 2008 by Makhteshim-
Agan Holding BV, Alfa Agricultural
SA,
Aragonesas Agro, SA against the judgment of the Court of
First Instance (Fourth Chamber) delivered on 9 September
2008 in Case T-75/06 Bayer CropScience AG and Others v
Commission

Supplies

The lack of any means of redress is contrary to the principle of
the right to effective judicial protection, as recognised in the
most recent Community case-law and legal writings.

(Case C-517/08 P)

(2009/C 19/34)

Language of the case: English

Action brought on 19 November 2008 — Commission of
the European Communities v Federal Republic of Germany

(Case C-505/08)

(2009/C 19/33)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and M. Adam, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

— Declare that, by failing to adopt, in full, the laws, regulations
and administrative provisions necessary to comply with
Directive 2005/36/EC of the European Parliament and of
the Council of 7 September 2005 on the recognition of
professional qualifications (1), or, as the case may be, by
failing to fully inform the Commission of those provisions,
the Federal Republic of Germany has failed to fulfil its obli-
gations under that directive;

— order Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The prescribed period for implementing the Directive expired
on 20 October 2007.

(1) OJ 2005 L 255, p. 22

Parties

Appellants: Makhteshim-Agan Holding BV, Alfa Agricultural
Supplies SA, Aragonesas Agro, SA (represented by: C. Mereu, K.
Van Maldegem, avocats)

Other parties to the proceedings: Commission of the European
Communities, Bayer CropScience AG, European Crop Protection
Association (ECPA), Kingdom of Spain

Form of order sought

The appellant claims that the Court should, following an oral
hearing:

— set aside the judgment of the Court of First Instance in Case

T-75/06; and

— annul Commission Decision 2005/864/EC (1) of 2 December
2005 concerning the non-inclusion of endosulfan in Annex I
to Directive 91/414/EEC (2) and the withdrawal of authorisa-
tions
that
substance; or

for plant protection products

containing

— alternatively,

refer

the case back to the Court of First

Instance for judgment; and

— order the Respondent to pay all the costs of these proceed-
ings (including the costs before the Court of First Instance).

Pleas in law and main arguments

The Appellants submit that, in dismissing their application for
annulment in respect of Commission Decision 2005/864/EC of
2 December 2005 concerning the non-inclusion of endosulfan
in Annex I to Directive 91/414/EEC and the withdrawal of
authorisations for plant protection products containing that
substance, the Court of First Instance breached Community law.
In particular, the Appellants contend that the Court of First
Instance committed a number of errors in its interpretation of
the facts and of the legal framework as applicable to the Appel-
lants' situation. That resulted in it making a number of errors in
law, in particular:

(i) in failing to find that the Appellants had been placed in a
situation of force majeure by the conduct of the competent
authorities such that the failure of the competent authorities
to defer the procedural deadlines amounted to a manifest
error of assessment; and