CELEX: C2001/079/23
Language: en
Date: 2001-03-10 00:00:00
Title: Case C-470/00 P: Appeal brought on 22 December 2000 by the European Parliament against the judgment delivered on 26 October 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-83/99, T-84/99 and T-85/99 between Ripa di Meana and Others and the European Parliament

C 79/12                EN                     Official Journal of the European Communities                                        10.3.2001
(b) If that question is answered in the negative: Does the first               (c)   a national central bank,
      half of the final sentence of Article 2(8) of Council
      Directive 89/665/EEC of 21 December 1989 on the                          (d) a statutory body representing its members’ interests,
      coordination of the laws, regulations and administrative
      provisions relating to the application of review pro-                    (e)   a partially State-controlled undertaking which is
      cedures to the award of public supply and public                               operated for profit?
      works contracts require an interpretation of the national
      legislation to the effect that the court (the independent          2.    If the answer to at least part of the above question is in
      body) clarifies of its own motion, without specific                      the affirmative:
      assertions (and certainly without relevant offers of evi-
      dence) made by one of the parties, whether the invitation                Are the provisions precluding the abovementioned
      to tender in question is not an individual project, but                  national rules directly applicable, in the sense that persons
      merely a part-project and — in the event that the latter is              obliged to disclose data may rely on them to prevent the
      the case — whether the overall project has an estimated                  application of conflicting national rules?
      contract value of more than EUR 5 million, or is such a
      view prohibited precisely because the onus of proof and
      obligation to produce evidence imposed on the party
      constitutes the essential difference between a procedure in
      which both sides are heard and inquisitorial proceedings?
                                                                         Appeal brought on 22 December 2000 by the European
(1) OJ 1989 L 395, p. 33.
                                                                         Parliament against the judgment delivered on 26 October
                                                                         2000 by the Fourth Chamber of the Court of First Instance
                                                                         of the European Communities in Joined Cases T-83/99,
                                                                         T-84/99 and T-85/99 between Ripa di Meana and Others
                                                                                          and the European Parliament
                                                                                                 (Case C-470/00 P)
Reference for a preliminary ruling by the Verfassungsge-                                           (2001/C 79/23)
richtshof, Vienna, by order of 12 December 2000 in the
case of the Rechnungshof against 1. Österreichischer
Rundfunk, 2. Wirtschaftskammer Steiermark, 3. Marktge-                   An appeal against the judgment delivered on 26 October 2000
meinde Kaltenleutgeben, 4. Land Niederösterrreich,                       by the Fourth Chamber of the Court of First Instance of the
5. Oesterreichische Nationalbank, 6. Stadt Wiener                        European Communities in Joined Cases T-83/99, T-84/99 and
Neustadt, 7. Austrian Airlines, Österreichische Luft-                   T-85/99 between Ripa di Meana and Others and the European
                           verkehrs-AG                                   Parliament was brought before the Court of Justice of the
                                                                         European Communities on 22 December 2000 by the Euro-
                                                                         pean Parliament, represented by A. Caiola and G. Ricci, acting
                         (Case C-465/00)                                 as Agents, with an address for service in Luxembourg.
                          (2001/C 79/22)                                 The appellant claims that the Court should:
                                                                         1.    set aside the judgment of the Court of First Instance of
Reference has been made to the Court of Justice of the                         26 October 2000 in Cases T-83/99 and T-84/99 Carlo
European Communities by order of the Verfassungsgerichts-                      Ripa di Meana and Leoluca Orlando and the European
hof, Vienna, by order of 12 December 2000, received at the                     Parliament;
Court Registry on 28 December 2000 for a preliminary ruling
in the case of the Rechnungshof against 1. Österreichischer             2.    in consequence, declare the applications of the said
Rundfunk, 2. Wirtschaftskammer Steiermark, 3. Marktgemein-                     applicants at first instance inadmissible and unfounded,
de Kaltenleutgeben, 4. Land Niederösterrreich, 5. Oesterreichi-                and
sche Nationalbank, 6. Stadt Wiener Neustadt, 7. Austrian
Airlines, Österreichische Luftverkehrs-AG on the following              3.    order the applicants at first instance to pay the whole of
questions:                                                                     the costs of the proceedings before the Court of First
                                                                               Instance and the Court of Justice.
1.    Are the provisions of Community law, in particular those
      on data protection, to be interpreted as precluding
      national rules which require a State body to collect and           Pleas in law and main arguments
      pass on data on income for the purpose of publishing the
      names and income of employees of:                                  The European Parliament puts forward three pleas in law in
                                                                         support of its appeal, two of which relate to admissibility and
      (a)   a regional or local authority,                               the third to the substance, the last being subdivided into
                                                                         various parts and supported by a number of legal arguments.
      (b) a broadcasting organisation governed by public law,            Its grounds of appeal are as follows:
 ---pagebreak--- 10.3.2001               EN                      Official Journal of the European Communities                                         C 79/13
(a)   as regards admissibility: the European Parliament dis-               The applicant claims that the Court should:
      putes, first of all, the Court of First Instance’s characteris-
      ation of the letter of 19 November 1998 of the two
      Italian Vice-presidents of the European Parliament as the            —     annul the Commission’s decision of 31 October 2000
      ‘applicants’ application for membership’. According to                     declaring that the Spanish legislation on the exemption
      the Court of First Instance, that application for member-                  from corporation tax of expenditure and investments
      ship was made on behalf of the applicants. In the                          made abroad constitutes aid which is incompatible with
      opinion of the Parliament, that is an apoditic assertion,                  the common market and prohibited by Article 4(c) of the
      unsupported by reasons and having no basis in relevant                     ECSC Treaty;
      provisions of law, or in practice;
                                                                           —     order the defendant institution to pay the costs.
(b) again, as regards admissibility: the Parliament also dis-
     putes the Court of First Instance’s characterisation of the
     College of Quaestors’ letter of 4 February 1999 as a
     decision. Rather, it was merely a communication from
     the quaestors of the European Parliament for the purposes             Pleas in law and main arguments
     of providing information and as a courtesy, and, in any
     event, did no more than confirm the existing situation, of
                                                                           —     Infringement of the procedure laid down by law and
     which the Members of Parliament in question were
                                                                                 breach of the principles of legal certainty, of the right
     already perfectly well aware. Moreover, the informal and
                                                                                 to a fair hearing and of the protection of legitimate
     atypical requests the applicants made of the quaestors
                                                                                 expectations: by not adopting the decision within the
     place them outside the scope of every applicable rule and
                                                                                 time-limit prescribed by Article 6(5) of Decision
     every procedure (such as that provided for in Article
                                                                                 2496/96/ECSC, the Commission failed to observe the
     27(2) of the Rules Governing the Payment of Expenses
                                                                                 procedure laid down by the latter decision, on which the
     and Allowances to Members);
                                                                                 contested decision is based. Moreover, the contested
                                                                                 decision was adopted contrary to the legitimate expec-
(c)  lastly, as to the substance: the European Parliament                        tations of both the Member State to which it was
     maintains that the Court of First Instance erred in law                     addressed and the undertakings affected by it. Following
     when, reversing the burden of proof and thus committing                     the finalisation of the preparatory documents, the Com-
     a breach of procedure, it found that the Parliament had                     mission failed to give its definitive decision within the
     ‘not proved that the Members had acquired precise                           legal time-limit of three months; it allowed several years
     knowledge of the amending decision more than six                            to elapse following the expiry of the deadline for the
     months before they submitted their applications’, and                       adoption of a decision, and may thus reasonably be
     concluded that ‘the applicants submitted their appli-                       considered to have engendered a legitimate expectation
     cations for membership of the provisional pension                           that the measures in issue were not regarded as contrary
     scheme within the time-limit laid down in the amendment                     to the Treaty in the light of the investigation initiated in
     to Annex III’.                                                              1997.
                                                                           —     Infringement of Article 15 ECSC, on account of the
                                                                                 absence of a statement of reasons concerning the change
                                                                                 of criterion and the effect of the legislation on the
                                                                                 competitiveness of the national products exported.
                                                                           —     Misapplication of Article 4(c) of the ECSC Treaty: non-
                                                                                 existence of any aid or subsidy within the meaning of
Action brought on 29 December 2000 by the Kingdom of
                                                                                 that provision: automatically to assimilate the concept of
Spain against the Commission of the European Communi-
                                                                                 aid under that provision to aid under Article 87 EC
                                 ties
                                                                                 could give rise to inconsistency, inasmuch as the effects
                                                                                 produced by Article 87 EC are absolute and uncon-
                           (Case C-501/00)                                       ditional. The ECSC Treaty automatically prohibits aid by
                                                                                 virtue of the very fact of accession to the ECSC; it does
                                                                                 not require any assessment of the effects of such aid on
                            (2001/C 79/24)                                       competition, and does not regulate or deal with existing
                                                                                 grants of aid, since all aid, past and future, is covered by
                                                                                 the same prohibition. For that reason, it may be stated,
An action against the Commission of the European Communi-                        on the basis of the case-law of the Court and of the aids
ties was brought before the Court of Justice of the European                     code referred to, that the aid prohibited by Article 4(c) is
Communities on 29 December 2000 by the Kingdom of                                direct aid, whether or not specifically intended for ECSC
Spain, represented by Santiago Ortiz Vaamonde, Abogado del                       undertakings. Measures adopted by Member States which
Estado, acting as Agent, with an address for service in                          produce indirect effects or repercussions on competition
Luxembourg care of the Spanish Embassy, 4-6 Boulevard                            are subject to different rules, in particular Article 67 of
Emmanuel Servais.                                                                the ECSC Treaty.