CELEX: C1996/046/13
Language: en
Date: 1996-02-17 00:00:00
Title: Appeal brought on 18 December 1995 by Geotronics SA against the judgment delivered on 26 October 1995 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-185/94 between Geotronics SA and the Commission of the European Communities (Case C-395/95 P)

No C 46/8             EN                   Official Journal of the European Communities                                      17 . 2 . 96
Action brought on 15 December 1995 by the European                    Geotronics SA, represented by Tommy Petterson, of the
   Parliament against the Council of the European Union               Swedish Bar, with an address for service in Luxembourg at
                       ( Case C-392/95 )                              the Chambers of Arendt & Medernach, 8— 10, rue Mathias
                                                                      Hardt .
                          ( 96/C 46/12 )
An action against the Council of the European Union was               The Appellant claims that the Court should :
brought before the Court of Justice of the European
Communities on 15 December 1995 by the European                       1 . set aside the abovementioned judgment of the Court of
Parliament, represented by Johann Schoo and Jose-Luis                       First Instance (the CFI );
Rufas Quintana , acting as Agents, with an address for
service in Luxembourg at the General Secretariat of the               2. annul the decision addressed to Geotronics taken by the
European Parliament, Tower Building.                                        Commission rejecting Geotronics' tender as notified in a
                                                                            telefax received by Geotronics on 10 March 1994 ;
The applicant claims that the Court should:
                                                                      3.    in the alternative declare that the Commission should
— annul, pursuant to Article 173 of the EC Treaty, Council                  compensate Geotronics for the damage Geotronics has
     Regulation No 2317/95 of 25 September 1995                             suffered as a result of the decision, at the amount of ECU
     determining the third countries whose nationals must be                500 400 plus interest for each calendar month
     in possession of visas when crossing the external borders              corresponding to Libor 30 days plus 1 % on that
     of the Member States ( M ,                                             amount as from the date on which Geotronics was
                                                                            notified of the Commission's decision until payment is
— order the defendant to pay the costs .                                    made;
Pleas in law and main arguments                                       4 . order the Commission to pay all the costs of the
                                                                            proceedings, including those incurred in the proceedings
Infringement of essential procedural requirements : in                      before the CFI .
adopting the contested regulation, the Council substantially
amended the proposal of the Commission on which the
Parliament had delivered its opinion pursuant to                      Pleas in law and main arguments
Article 100c of the EC Treaty. The Parliament should have
been reconsulted on                                                   Admissibility
— the right reserved to the Member States in Article 2 ( 1 ) of       The Court of First Instance rejected Geotronics' claim for
     the regulation to require the possession of a visa by             annulment of the Commission's decision of 10 March 1994
     nationals of third countries not on the common list,              is inadmissible. The Court of First Instance thereby erred in
     which disregards the objective of the harmonization of            law by not regarding the Commission's decision as an act or
     visa policy,                                                      decision which may be the subject of an action under
                                                                       Article 173 of the EC Treaty. The Commission's decision
— the mutual non-recognition of visas issued by each                   produced binding legal effects on Geotronics that affected
      Member State ( resulting from the removal of Article 2 of        its interests by distinctly changing its legal position and,
      the Commission's proposal ).                                     therefore, constitutes a decision which may be the subject of
                                                                       an action under Article 173 .
 (>) OJ No L 234, 1995 , p . 1 .
                                                                       Substance
                                                                       The Court of First Instance concluded that, in the absence of
                                                                       any unlawful conduct whatever on the part of the
                                                                        Commission, Geotronics' claim for compensation must be
 Appeal brought on 18 December 1995 by Geotronics SA                   rejected as unfounded. The Court of First Instance therefore
 against the judgment delivered on 26 October 1995 by the              erred in law by not upholding Geotronics' view that the
 Fourth Chamber of the Court of First Instance of the
                                                                        Commission had infringed the EEA Agreement by
 European Communities in Case T-185/94 ( ] ) between                    discriminating against goods of EEA origin. The
 Geotronics SA and the Commission of the European
                           Communities
                                                                        Commission is bound by the EEA Agreement in accordance
                                                                        with Article 228 ( 7 ) of the EC Treaty.
                       ( Case C-395 /95 P)
                            ( 96/C 46/13 )                              The issue of retroactivity
  An appeal against the judgment delivered on 26 October                The Court of First Instance found that the Commission was
  1995 by the Fourth Chamber of the Court of First Instance             right to rely on the general conditions laid down by it in the
  of the European Communities in Case T-185/94 between                  invitation to tender before the entry into force of the EEA
  Geotronics SA and the Commission of the European                      Agreement. As a result thereof the Commission was entitled
  Communities, was brought before the Court of Justice of               to discriminate against Geotronics' products on grounds of
  the European Communities on 18 December 1995 by                       their provenance .
 ---pagebreak--- 17 . 2 . 96            EN                   Official Journal of the European Communities                                    No C 46/9
The decision to reject Geotronics' tender on grounds of                answer is in the affirmative, is that rule justified on grounds
origin was undoubtedly taken after the entry into force of             of the general interest in maintaining industrial peace in the
the EEA Agreement. The EEA Agreement applies to all legal              sensitive area of the supply of tourist services, in respect of
situations which arise after its entry into force . Geotronics         which the Greek State, as a country for which tourism is
therefore contends that there is no retroactivity in the               important, has a reasonable and justifiable interest in
present case .                                                         intervening by regulation ?
The scope of the EEA Agreement
The Court of First Instance ruled that the EEA Agreement
cannot apply to the contract at issue since one of the parties
of the Contract, Romania , is not a party to the EEA                   Reference for a preliminary ruling by the Sø- og Handelsret
Agreement. This is a formalistic conclusion which overlooks            by order of that court of 19 December 1995 in the case of
the economic reality of the situation. That reality is that            Handels- og Kontorfunktionærernes Forbund i Danmark,
there is in fact, as a result of the Commission's decision ,           acting on behalf of Helle Elisabeth Larsson, v. Dansk
discrimination between two EEA producers of equivalent                 Handel & Service, acting on behalf of Føtex Supermarked
products . The economic reality of the transaction and the                                                A/S
actions taken in relation thereto should be decisive .                                           ( Case C-400/95 )
                                                                                                    ( 96/C 46/15 )
It is submitted that the present situation falls within the
scope of the EEA Agreement. Geotronics further maintains
that the Commission has discriminated in a manner likely to            Reference has been made to the Court of Justice of the
distort competition between products originating in the EC             European Communities by order of the Sø- og Handelsret
and EFTA states by giving an unfair competitive advantage              ( Maritime and Commercial Court) of 19 December 1995 ,
to the former . Such discrimination hinders the free                   which was received at the Court Registry on 21 December
movement of goods contrary to Articles 8 , 11 and 65 ( 1 ) of          1995 , for a preliminary ruling in the case of Handels- og
the EEA Agreement.                                                     Kontorfunktionærernes Forbund i Danmark (Union of
                                                                       Commercial and Clerical Employees in Denmark ), acting on
                                                                       behalf of Helle Elisabeth Larsson, v. Dansk Handel &
 (•) OJ No C 333 , 9 . 12 . 1995 , p . 33 .                            Service ( Danish Commercial and Service-Industries
                                                                       Association ), acting on behalf of Føtex Supermarked A/S, on
                                                                       the following question:
                                                                       Does Article 5 ( 1 ), in conjunction with Article 2 ( 1 ), of
                                                                       Council Directive 76/207/EEC of 9 February 1976 on the
                                                                       implementation of the principle of equal treatment for men
 Reference for a preliminary ruling by the Simvoulio tis               and women as regards access to employment, vocational
 Epikratias tis Ellados ( Council of State, Greece ), by a             training and promotion, and working conditions ( x ), cover
 decision of that court of 7 November 1995 in the case of              dismissal as a result of absence following the end of
 Sindesmos ton en Elladi Touristikon kai Taxidiotikon                  maternity leave if the absence is attributable to an illness
              Grafion v. Minister of Employment                        which arose during pregnancy and continued during and
                         ( Case C-398/95 )
                                                                        after maternity leave, it being assumed that the dismissal
                                                                        took place after the end of the maternity leave ?
                            ( 96/C 46/14 )
                                                                        (') OJ No L 39 , 14 . 2 . 1976 , p . 40 .
 Reference has been made to the Court of Justice of the
 European Communities by a decision of the Simvoulio tis
 Epikratias tis Ellados of 7 November 1995 , which was
 received at the Court Registry on 18 December 1995 , for a
 preliminary ruling in the case of Sindesmos ton en Elladi
 Touristikon kai Taxidiotikon Grafion (Association of                   Reference for a preliminary ruling from the Rechtbank van
 Tourist and Travel Agencies in Greece ) v. Minister of                 Eerste Aanleg te Brussel, by judgment of that court of
 Employment, supported by the Somatio Diplomatoukhon                    12 December 1995 , in the case of B. R. D. (Bureau RIK
 Xenagon ( Association of Certified Tourist Guides ) and the            DECAN-Business Research & Development ) NV v. Belgian
 Panellinia Omospondia Xenagon ( Panhellenic Federation of                                                State
 Tourist Guides ) on the following question:
                                                                                                   Case C-401 /95 )
 Is the rule in Article 37 of Law No 1545/1985 which, in the                                         ( 96/C 46/ 16 )
 circumstances referred to therein, prescribes a mandatory
  legal form of a relationship of non-independent                       Reference has been made to the Court of Justice of the
  employment between the parties — the legal form under                 European Communities by judgment of the Rechtbank van
  which it is usual for the services of tourist guides to be            Eerste Aanleg te Brussel ( Court of First Instance, Brussels ),
  provided in the circumstances described in that Article —              by judgment of that court of 12 December 1995 , which was
  contrary to Articles 59 et seq. of the EC Treaty ? If the             received at the Court Registry on 21 December 1995 , for a