CELEX: C2004/047/38
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-547/03 P: Appeal brought on 22 December 2003 by Asian Institute of Technology (AIT) 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

21.2.2004               EN                         Official Journal of the European Union                                             C 47/23
2.     Given that Article 3c of Commission Directive 90/388/               3.    otherwise arrange for and open the oral procedure;
       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             4.    after which, annul the decision of the European Com-
       communications, refers to the lifting of ‘all restrictions’,              mission of 20 or 27 February 2002 to conclude a research
       does that article preclude the introduction, by a national                contract with T. Lefevre, who states that he is the Director
       or local authority, of a tax on mobile and personal                       of the ‘Center for Energy — Environment Research &
       communications infrastructures used to carry on activities                Development’.
       covered by licences and authorisations?
(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
                                                                           Pleas in law and main arguments
    tition 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 com-
    munications (OJ L 20, 26.1.1996, p. 59).
                                                                           (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 proceed-
                                                                           ings 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.
Appeal brought on 22 December 2003 by Asian Institute                      The safeguard in respect of non-manifest inadmissibility means
of Technology (AIT) against the order made on 15 Octo-                     that, in contrast to Article 111, where the cancellation of the
ber 2003 by the Fifth Chamber of the Court of First                        oral procedure is automatic, such cancellation is within the
Instance of the European Communities in Case T-288/02                      discretionary power of the Court of First Instance in cases of
between Asian Institute of Technology (AIT) and the                        non-manifest inadmissibility. In this case, the Court of First
          Commission of the European Communities                           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
                         (Case C-547/03 P)                                 is subject to the CFI’s discretion.
                           (2004/C 47/38)
                                                                           (b)   Error of assessment as to admissibility having regard to
                                                                                 the fourth subparagraph of Article 230 of the EC Treaty
An appeal against the order made on 15 October 2003 by the                 Since it is understood that the AIT is not the ‘addressee’ of the
Fifth Chamber of the Court of First Instance of the European               decision to award the contract, the CFI should have applied
Communities in Case T-288/02 between Asian Institute of                    the test in Plaumann, with the flexibility which the Court of
Technology (AIT) and the Commission of the European                        Justice has brought to that case-law in order to give a
Communities was brought before the Court of Justice of the                 less restrictive interpretation to the second paragraph of
European Communities on 22 December 2003 by Asian                          Article 173 (now the fourth paragraph of Article 230 of
Institute of Technology (AIT), represented by H. Teissier du               the EC Treaty). ‘CEERD/FIHRDS’ to which the Commission
Cros, avocat, with an address for service in Luxembourg.                   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 applicant claims that the Court should:                                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
1.     set aside the contested order dated 15 October 2003 of              logo ‘CEERD’, a prejudice which distinguishes its situation in
       the Court of First Instance of the European Communities;            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
2.     refer the case back to the Court of First Instance;                 not a trader.
 ---pagebreak--- 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        provisions on administrative measures in fiscal matters, such
      remedy guaranteed by Article 47 of the Charter of                  as cooperation between tax authorities enabling or facilitating
      Fundamental Rights of the European Union.                          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-548/03)
                         (2004/C 47/39)
                                                                         Action brought on 23 December 2003 by the European
                                                                            Parliament against the Council of the European Union
An action against the Council of the European Union was                                          (Case C-549/03)
brought before the Court of Justice of the European Communi-
ties on 23 December 2003 by the European Parliament,
represented by C. Pennera and A. Neergaard, acting as Agents,                                     (2004/C 47/40)
with an address for service in Luxembourg.
The European Parliament claims that the Court should:
                                                                         An action against the Council of the European Union was
                                                                         brought before the Court of Justice of the European Communi-
—     annul Council Directive 2003/93/EC amending Directive              ties on 23 December 2003 by the European Parliament,
      77/799/EEC concerning mutual assistance by the com-                represented by C. Pennera and A. Neergaard, acting as Agents,
      petent authorities of the Member States in the field of            with an address for service in Luxembourg.
      direct and indirect taxation (1);
—     maintain the effects of the annulled directive until the           The European Parliament claims that the Court should:
      European Parliament and the Council have adopted, on
      the appropriate legal basis, new legislation;
                                                                         —     annul Council Regulation No 1798/2003 of 7 October
                                                                               2003 on administrative cooperation in the field of value
—     order the defendant to pay the costs.
                                                                               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
Pleas in law and main arguments
                                                                               the appropriate legal basis, new legislation;
Directive 2003/93/EC and Regulation (EC) No 1798/03 should               —     order the defendant to pay the costs.
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,                 Pleas in law and main arguments
whereas, under Article 95 EC, the co-decision procedure
applies.
                                                                         The pleas in law and main arguments relied upon are identical
                                                                         to those in Case C-548/03.
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                  (1) OJ L 264, 15.10.2003, p. 1.
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