CELEX: C1999/174/21
Language: en
Date: 1999-06-19 00:00:00
Title: Case T-76/99: Action brought on 1 April 1999 by Jütro Konservenfabrik GmbH & Co. KG against the Commission of the European Communities

C 174/10              EN                     Official Journal of the European Communities                                       19.6.1999
— order the Commission to bear the costs of the present                 The applicant claims that the Court should:
     proceedings.
                                                                        1. annul Commission Regulation (EC) No 590/99 of
                                                                             18 March 1999 supplementing the Annex to Commission
                                                                             Regulation (EC) No 1107/96 on the registration of geo-
Pleas in law and main arguments                                              graphical indications and designations of origin under the
                                                                             procedure laid down in Article 17 of Regulation (EEC)
                                                                             No 2081/92, in so far as the designation ‘Spreewälder
In its judgment in Case T-120/96, (1) the Court of First Instance            Gurken’ is concerned;
annulled the Commission’s decision of 22 May 1996, rejecting
the request for inclusion of somidobove in Annex II to Council          2. order the defendant to pay the recoverable costs of the
Regulation (EEC) No 2377/90 laying down a Community                          proceedings.
procedure for the establishment of maximum residue limits of
veterinary medicinal products in foodstuffs of animal origin. (2)
                                                                        Pleas in law and main arguments
Following that judgment, the Commission, in breach of its
obligations under Article 176 EC, has failed to submit the              The applicant produces tinned cucumbers in accordance with
draft regulation including somidobove in Annex II to the                recipes which have been used for centuries in the Spreewald
abovementioned regulation to the Adaptation Committee.                  area. The seat of the applicant’s undertaking is located some
                                                                        40 to 50 km to the west of that area.
According to the applicant, no margin of discretion is left to
the Commission in this case, so that it is under an obligation          The applicant states that the designation ‘Spreewälder Gurken’
to draw up a draft regulation including somidobove in Annex II          has been included by the contested regulation in the annex to
and to submit it to the Adaptation Committee for approval.              Regulation (EC) No 1107/96 in accordance with Regulation
                                                                        (EEC) No 2081/92 on the protection of geographical indi-
                                                                        cations and designations of origin for agricultural products
Furthermore, on the basis of the case-law of the Court of               and foodstuffs (1). The contested regulation has the effect of
Justice, measures giving effect to a judgment annulling an act          henceforth prohibiting the use of the word ‘Spreewald’ where
of an institution must be taken within a reasonable time. More          the criteria laid down in that regulation are not fulfilled.
than seven months have elapsed since the judgment in Case
T-120/96 was delivered and the defendant institution has still          In the applicant’s view, the contested regulation is character-
failed to take any measure to comply with it, and has,                  ised, in particular, by the fact that it ignores all the legal and
moreover, publicly announced its unwillingness to do so.                factual circumstances and constitutes a dubious manoeuvre
                                                                        prompted by politically and economically motivated machi-
                                                                        nations (‘cliquish intrigues’) on the part of the Justice Ministry
(1) Judgment of 25 June 1998 in Case T-120/96 Lilly Industries Ltd      of the Federal Republic of Germany, which ultimately rec-
    v Commission of the European Communities [1998] ECR II-2573.        ommended to the Commission that the contested regulation
(2) OJ 1990 L 224, p. 1.                                                be adopted.
                                                                        The applicant complains of infringement of essential pro-
                                                                        cedural requirements in relation to the enactment of the
                                                                        contested regulation, especially as regards the application of
                                                                        the simplified procedure under Article 17 of Regulation (EEC)
                                                                        No 2081/92, which is inappropriate in the case of ‘Spreewälder
                                                                        Gurken’, the curtailment of legal remedies connected therewith
                                                                        and failure to observe the six-month time-limit laid down in
                                                                        Article 17 of Regulation (EEC) No 2081/92.
Action brought on 1 April 1999 by Jütro Konservenfabrik
GmbH & Co. KG against the Commission of the European                    The applicant further maintains that the contested regulation
                           Communities                                  is incompatible with Article 2 of Regulation (EEC) No 2081/92
                                                                        as regards the protection of geographical indications and/or
                                                                        designations of origin. Moreover, no provision has been made
                          (Case T-76/99)                                in the contested regulation for transitional arrangements to be
                                                                        applicable in the Federal Republic of Germany, as required in
                                                                        principle by Article 13(2) of Regulation (EEC) No 2081/92.
                         (1999/C 174/21)
                                                                        In addition, the applicant complains of a misuse of discretion-
                                                                        ary powers with regard to the demarcation of the ‘Spreewald
                  (Language of the case: German)                        economic area’, which has been artificially delimited and, in
                                                                        particular, incorrectly defined. The discretion conferred on the
                                                                        Community legislature in the definition of geographical areas
An action against the Commission of the European Communi-               is not properly exercised where the geographic delimitation is
ties was brought before the Court of First Instance of the              based — as it is in the present case — on extraneous
European Communities on 1 April 1997 by Jütro Konservenfa-              considerations such as political and economic needs. Further-
brik GmbH & Co. KG, of Jüterbog (Germany), represented by               more, to define a ‘Spreewald economic area’, having nothing
Rolf Schultz-Süchting, Rechtsanwalt, of Messrs Boesebeek                whatever to do with the ‘Spreewald’ geographical region,
Droste, Hamburg, with an address for service in Luxembourg              instead of defining that region itself, which is well-known in
at the Chambers of Messrs Arendt & Medernach, 8-10 Rue                  commercial circles, amounts to an incorrect exercise of
Mathias Hardt.                                                          discretion.
 ---pagebreak--- 19.6.1999             EN                      Official Journal of the European Communities                                         C 174/11
Finally, the applicant pleads infringement of fundamental                The applicant was subsequently refused registration of his
Community rights, alternatively of rights equivalent thereto, in         vehicle. He learned thereafter that the chassis number of his
the form of a disproportionate impairment, contrary to the               vehicle had been blocked by the customs service by reason of
principle of the protection of legitimate expectations, of the           the fact that the Commission had not supplied the Belgian
commercial enterprise set up and operated by the applicant,              Customs and Excise Administration with relevant and necess-
viewed as a property right. According to the applicant, there            ary information that had been requested a number of times.
has been an infringement of the guaranteed right to have
access to legal remedies (see Article 19(4) of the German Basic          The applicant maintains that the Commission is liable to him
Law), which is enshrined in the German constitution but which            for the following failures in its administrative system:
also falls to be observed in the context of Community law.
                                                                         — The Commission did not ensure that the applicant’s
                                                                              individual file contained all the important and relevant
(1) OJ L 208 of 24.7.1992, p. 1.                                              documents which it should have contained in order to
                                                                              enable it to give the Belgian authorities correct and
                                                                              complete information;
                                                                         — the Commission did not correctly defend the applicant’s
                                                                              interests before the Belgian authorities, in that they insisted
                                                                              on 1 November 1992 as the date on which he assumed
                                                                              his duties, whereas his individual file contained two
                                                                              documents showing that it was 5 January 1993;
Action brought on 2 April 1999 by Girish Ojha against
       the Commission of the European Communities                        — the Commission did not appear to know the terms of the
                                                                              agreements concluded with the Belgian Ministry of Finance
                                                                              and did not make the effort to become acquainted with
                         (Case T-77/99)                                       them.
                        (1999/C 174/22)                                  The material damage comprises the cost of hiring a vehicle
                                                                         identical to the applicant’s, at the rate of BFR 2 200 per day
                                                                         for the period from 1 February 1996 until 31 December 1997.
                                                                         The applicant considers that the non-material damage may
                   (Language of the case: French)                        fairly be assessed at BFR 300 000, since he suffered significant
                                                                         non-material damage through the errors and omissions of the
An action against the Commission of the European Communi-                Commission’s staff.
ties was brought before the Court of First Instance of the
European Communities on 2 April 1999 by Girish Ojha,
residing at Bierbeek (Belgium), represented by Antonietta
Ottati and Marc Dallemagne, both of the Brussels Bar.
The applicant claims that the Court should:                              Action brought on 1 April 1999 by Sonia Marion Elder
                                                                         and Robert Dale Elder against the Commission of the
                                                                                              European Communities
— annul the express decision of the Commission rejecting
    the applicant’s complaint under Article 90(2) of the Staff                                     (Case T-78/99)
    Regulations;
                                                                                                  (1999/C 174/23)
— order the Commission to pay the applicant damages of
    BFR 1 552 339 for material damage and BFR 300 000 for
    non-material damage;                                                                    (Language of the case: English)
— order the Commission to pay the costs.                                 An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 1 April 1999 by Sonia Marion
                                                                         Elder and Robert Dale Elder, represented by Scott Crosby of
Pleas in law and main arguments
                                                                         Kemmier Rapp Böhlke & Crosby, 9, Rond-Point, Brussels.
The applicant was posted to the Commission delegation in                 The applicant claims that the Court should.
Dacca (Bangladesh) until 31 December 1992. He imported a
Mercedes motor car, purchased free of VAT on 17 December                 (i) annul the refusal of the Commission to grant the appli-
1991, to Bangladesh from Belgium. On 5 January 1993, he                       cation for review of 6 January 1999 addressed to the
resumed his duties with the Commission in Brussels.                           Secretary General of the Commission constituted by its
                                                                              failure to reply in any form by the last hour of 8 February
                                                                              1999, or in the alternative by its failure to define its
According to the applicant, the relevant department of the                    position before the last hour of 13 or 14 February 1999;
Commission stated on tax forms on 23 December 1992 and
15 January 1993 that the applicant satisfied the conditions for          (ii) order the defendant to pay the applicants’ costs pursuant
customs exemption, erroneously indicating 1 November 1992                     to Article 87 of the Rules of Procedure of the Court of First
as the date on which he assumed his duties.                                   Instance.