Source: EURLEX
Language: en
Format: md

21.2.2004 EN Official Journal of the European Union C 47/23

2. Given that Article 3c of Commission Directive 90/388/
EEC of 28 June 1990 ( [1] ), as inserted by Commission
Directive 96/2/EC of 16 January 1996 ( [2] ) amending
Directive 90/388/EEC with regard to mobile and personal
communications, refers to the lifting of ‘all restrictions’,
does that article preclude the introduction, by a national
or local authority, of a tax on mobile and personal
communications infrastructures used to carry on activities
covered by licences and authorisations?

( [1] ) Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ L 192,
24.7.1990, p. 10).
( [2] ) Commission Directive 96/2/EEC of 16 January 1996 amending
Directive 90/388/EEC with regard to mobile and personal communications (OJ L 20, 26.1.1996, p. 59).

**Appeal brought on 22 December 2003 by Asian Institute**
**of Technology (AIT) against the order made on 15 Octo-**
**ber 2003 by the Fifth Chamber of the Court of First**
**Instance of the European Communities in Case T-288/02**
**between Asian Institute of Technology (AIT) and the**
**Commission of the European Communities**

**(Case C-547/03 P)**

(2004/C 47/38)

An appeal against the order made on 15 October 2003 by the
Fifth Chamber of the Court of First Instance of the European
Communities in Case T-288/02 between Asian Institute of
Technology (AIT) and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 22 December 2003 by Asian
Institute of Technology (AIT), represented by H. Teissier du
Cros, avocat, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. set aside the contested order dated 15 October 2003 of
the Court of First Instance of the European Communities;

2. refer the case back to the Court of First Instance;

3. otherwise arrange for and open the oral procedure;

4. after which, annul the decision of the European Commission of 20 or 27 February 2002 to conclude a research
contract with T. Lefevre, who states that he is the Director
of the ‘Center for Energy — Environment Research &
Development’.

_Pleas in law and main arguments_

(a) Procedural irregularity

The Court of First Instance dismissed the AIT’s application in
Case T-288/02 as manifestly inadmissible, relying on the
provisions of Article 111 of its Rules of Procedure. Manifest
inadmissibility may be raised only at the start of the proceedings and cannot in any case be based on further investigation.
If a ground of inadmissibility is revealed by a measure of
inquiry, it is then governed by Article 113 of the Rules of
Procedure of the Court of First Instance and not by Article 111.
The safeguard in respect of non-manifest inadmissibility means
that, in contrast to Article 111, where the cancellation of the
oral procedure is automatic, such cancellation is within the
discretionary power of the Court of First Instance in cases of
non-manifest inadmissibility. In this case, the Court of First
Instance has made a finding of manifest inadmissibility based
on the results of an additional enquiry, thus depriving the
party of the guarantee that cancellation of the oral procedure
is subject to the CFI’s discretion.

(b) Error of assessment as to admissibility having regard to
the fourth subparagraph of Article 230 of the EC Treaty

Since it is understood that the AIT is not the ‘addressee’ of the
decision to award the contract, the CFI should have applied
the test in Plaumann, with the flexibility which the Court of
Justice has brought to that case-law in order to give a
less restrictive interpretation to the second paragraph of
Article 173 (now the fourth paragraph of Article 230 of
the EC Treaty). ‘CEERD/FIHRDS’ to which the Commission
awarded the contract, is a competitor of ‘CEERD/AIT’, and
even an unfair competitor. The award of the contract to
‘CEERD/FIHRDS’ by the Commission, which has deprived the
AIT of the competitive advantages flowing from the fact that
the ‘CEERD/AIT’ is one of its departments, adversely and
substantially affects it in its competitive position. The contested
decision also impairs the AIT’s entitlement to use its name and
logo ‘CEERD’, a prejudice which distinguishes its situation in
relation to all other economic operators. The contested
contract concerns the AIT directly and individually because it
substantially affects its competitive position, even though it is
not a trader.

C 47/24 EN Official Journal of the European Union 21.2.2004

(c) In the alternative, breach of the AIT’s right to an effective
remedy guaranteed by Article 47 of the Charter of
Fundamental Rights of the European Union.

**Action brought on 23 December 2003 by the European**
**Parliament against the Council of the European Union**

**(Case C-548/03)**

(2004/C 47/39)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communities on 23 December 2003 by the European Parliament,
represented by C. Pennera and A. Neergaard, acting as Agents,
with an address for service in Luxembourg.

The European Parliament claims that the Court should:

—
annul Council Directive 2003/93/EC amending Directive
77/799/EEC concerning mutual assistance by the competent authorities of the Member States in the field of
direct and indirect taxation ( [1] );

— maintain the effects of the annulled directive until the
European Parliament and the Council have adopted, on
the appropriate legal basis, new legislation;

—
order the defendant to pay the costs.

_Pleas in law and main arguments_

Directive 2003/93/EC and Regulation (EC) No 1798/03 should
be annulled because they should have been based on Article 95
EC and not on Article 93 EC. The difference in legal basis is not
merely formal, but directly affects the European Parliament’s
prerogatives. Indeed, according to Article 93 EC the Council
acts unanimously after merely consulting the Parliament,
whereas, under Article 95 EC, the co-decision procedure
applies.

According to the field of application determined by the Treaty,
for provisions which have as their object improvement of the
conditions for the establishment and functioning of the
internal market, the general rule is Article 95 EC. Article 93
EC provides otherwise in relation to indirect taxation, in
derogation, as lex specialis, from Article 95 EC. The ancillary

provisions on administrative measures in fiscal matters, such
as cooperation between tax authorities enabling or facilitating
the collection of tax, are not specifically covered by that
provision. The directive and the regulation have therefore been
adopted in breach of essential procedural requirements and of
the EC Treaty.

( [1] ) OJ L 264, 15.10.2003, p. 23.

**Action brought on 23 December 2003 by the European**
**Parliament against the Council of the European Union**

**(Case C-549/03)**

(2004/C 47/40)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communities on 23 December 2003 by the European Parliament,
represented by C. Pennera and A. Neergaard, acting as Agents,
with an address for service in Luxembourg.

The European Parliament claims that the Court should:

—
annul Council Regulation No 1798/2003 of 7 October
2003 on administrative cooperation in the field of value
added tax and repealing Regulation (EEC) No 218/92 ( [1] );

—
maintain the effects of the annulled regulation until the
European Parliament and the Council have adopted, on
the appropriate legal basis, new legislation;

—
order the defendant to pay the costs.

_Pleas in law and main arguments_

The pleas in law and main arguments relied upon are identical
to those in Case C-548/03.

( [1] ) OJ L 264, 15.10.2003, p. 1.