CELEX: C1999/226/24
Language: en
Date: 1999-08-07 00:00:00
Title: Case C-171/99 P: Appeal brought on 6 May 1999 by Clauni S.A., Lomagenais S.A., Jean-Marie Bissière and André Lompech against the order made on 9 March 1999 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-206/98 between Clauni S.A. and Others and the Commission of the European Communities

7.8.1999               EN                    Official Journal of the European Communities                                       C 226/15
        1995, to make a retroactive allocation to the quota; no         — order the Commission to pay the costs.
        reply was ever given to that request;
                                                                        Pleas in law and main arguments
    — It was only when recourse to the natural judicial forum,
        namely the Community judicature, was blocked by an              — Error of law as to the admissibility in the present proceed-
        insurmountable obstacle, in the form of the French                  ings of the reasons given in relation to the documentation
        national authorities, that direct proceedings were                  in the case and the procedural option of making a reference
        brought before the Community judicature, within the                 for a preliminary ruling: it is certainly true that such a
        national time-limit of three years.                                 reference would have been the most appropriate way of
                                                                            proceeding, but the rules governing the tariff classification
                                                                            of mushrooms according to the way in which they are
— Failure to have regard to the admissibility of a reference to             cooked evidently appeared, from the French standpoint, to
    special consultations on issues of fact and of law.                     be so clear that they did not warrant any such reference
                                                                            for a preliminary ruling. The appellants point out that the
— Infringement of the Community Customs Code and of the                     tariff classification of mushrooms has since formed the
    rules governing its application.                                        subject-matter of a number of regulations at Community
                                                                            level; in their view this reflects the erroneous approach
                                                                            adopted by the Community rules. They further recall that
                                                                            the Court of Justice, ruling on a question referred for a
(1) OJ C 71 of 13.3.1999, p. 30.                                            preliminary ruling by a national court of another Member
                                                                            State concerning a master arising in the same area during
                                                                            the same period, held its judgment of 4 July 1996 in
                                                                            Case C-296/94 (2) that Commission Regulation (EEC) No
                                                                            2163/92 on the levying of additional amounts in respect
                                                                            of deep-cooked mushrooms was invalid.
                                                                        — Erroneous legal assessment of the facts, in that the
                                                                            contested judgment found that the damage alleged had not
                                                                            been suffered.
                                                                        — Erroneous legal assessment of the facts, in that the
Appeal brought on 6 May 1999 by Clauni S.A., Lomagenais                     contested judgment found that the application did not
S.A., Jean-Marie Bissière and André Lompech against the                     identify any unlawful failure to act on the part of the
order made on 9 March 1999 by the Fourth Chamber of                         Commission.
the Court of First Instance of the European Communities
in Case T-206/98 between Clauni S.A. and Others and the                 — Failure to have regard to the respective spheres of com-
        Commission of the European Communities                              petence of the Commission and of the administrative
                                                                            authorities of the Member States in relation to customs
                                                                            rebates: in the case of inertia or reticence on the part of
                        (Case C-171/99 P)                                   national administrative authorities as regards the for-
                                                                            warding of a rebate application to the Commission,
                                                                            there is absolutely nothing that the Community citizen
                         (1999/C 226/24)                                    concerned can do in practice to remedy the situation. The
                                                                            right to have effective recourse to the courts and to receive
                                                                            a statement of the reasons underlying decisions of the
An appeal against the order made on 9 March 1999 by the                     national authorities which adversely affect a right conferred
Fourth Chamber of the Court of First Instance of the European               by the Community rules constitutes a fundamental prin-
Communities in Case T-206/98 between Clauni S.A and                         ciple of Community law. By the same token, the principle
Others and the Commission of the European Communities                       of protection against arbitrary or disproportionate inter-
was brought before the Court of Justice of the European                     vention by the administrative authorities has been
Communities on 6 May 1999 by Clauni S.A. Lomagenais S.A.,                   expressly confirmed on numerous occasions. It is clear,
Jean-Marie Bissières and André Lompech, represented by                      therefore, that, in circumstances involving a new instance
Daniel Veyssière, of the Agen Bar, with an address for service              of general failure on the part of the Commission to ensure
in Luxembourg at the Chamber of Aloïse May, 31 Grand-Rue.                   the implementation of the Treaty, an individual may rely
                                                                            on the developmental force of the Court’s case-law. Article
                                                                            906a of the regulation governing the implementation of
The appellants claim that the Court should:                                 the Community Customs Code provides a comprehensive
                                                                            mechanism for a fair examination of rebate applications
— set aside in its entirety the order declaring the action                  and, following years of litigation, for a statement of reasons
                                                                            to be given at Community lever, together with the legal
    inadmissible;
                                                                            guarantees and remedies relating thereto.
— allow the appellants’ claim for a rebate (1) or, more
                                                                        (1) OJ C 71 of 13.3.1999, p. 30.
    precisely, their application for annulment of the implicit          (2) OJ C 336 of 9.11.1996, p. 7.
    decision rejecting their claim for a rebate, so as to enable
    them to demonstrate to the European Commission the
    validity of the tariff heading declared;