CELEX: C2002/233/22
Language: en
Date: 2002-09-28 00:00:00
Title: Case C-263/02 P: Appeal brought on 17 July 2002 by the Commission of the European Communities against the judgment delivered on 3 May 2002 by the First Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-177/01 between Jégo-Quéré & Cie SA and the Commission of the European Communities

C 233/14               EN                     Official Journal of the European Communities                                      28.9.2002
Appeal brought on 17 July 2002 by the Commission of the                  According to the new criterion developed by the Court of First
European Communities against the judgment delivered on                   Instance, a natural or legal person is to be regarded as
3 May 2002 by the First Chamber, Extended Composition,                   individually concerned by a Community measure of general
of the Court of First Instance of the European Communi-                  application that concerns him directly if the measure in
ties in Case T-177/01 between Jégo-Quéré & Cie SA and                    question affects his legal position, in a manner which is both
       the Commission of the European Communities                        definite and immediate, by restricting his rights or by imposing
                                                                         obligations on him.
                        (Case C-263/02 P)
                         (2002/C 233/22)
An appeal against the judgment delivered on 3 May 2002 by                That criterion is contrary to the judicial system established by
the First Chamber, Extended Composition, of the Court of First           the Treaty. That system is complete and provides legal remedies
Instance of the European Communities in Case T-177/01                    and procedures which are designed to confer on the Court of
between Jégo-Quéré & Cie SA and the Commission of the                    Justice the power to review the legality of acts of the
European Communities was brought before the Court of                     institutions. Natural and legal persons are protected against
Justice of the European Communities on 17 July 2002 by the               the application to them of measures of general application
Commission of the European Communities, represented by                   which they are unable to contest directly before the Court of
T. van Rijn and A. Bordes, with an address for service in                Justice on account of the restrictive terms of Article 230 of the
Luxembourg.                                                              Treaty: the legal remedies available to an individual consist of
                                                                         the right indirectly to challenge the validity of the provision at
The appellant claims that the Court should:                              issue in the context of an action contesting a measure
                                                                         implementing that provision (Article 241), an action for
—     set aside the judgment delivered by the Court of First             damages (Articles 236 and 288) or an action involving a
      Instance of the European Communities on 3 May 2002                 reference for a preliminary ruling (Article 234).
      in Case T-177/01;
—     either determine the present case itself, declaring the
      action for annulment of Regulation No 1162/2001 ( 1) to
      be inadmissible or, alternatively, refer the case back to
      the Court of First Instance;
                                                                         Moreover, the Court of First Instance erred in law by confusing
—     order the applicant in the proceedings at first instance to        the right to an effective remedy, which is fully recognised and
      pay the costs, including those incurred in the proceedings         protected, with a general right of direct recourse entitling
      before the Court of First Instance.                                individuals to bring proceedings for annulment of measures of
                                                                         general application. Neither the case-law of the Court of Justice
                                                                         nor that of the European Court of Human Rights places the
Pleas in law and main arguments                                          ‘right to an effective remedy’ on the same footing as a ‘right to
                                                                         bring a direct action’. Thus, it is not correct to say that the
                                                                         remedies available to individuals in order to challenge measures
The Commission advances two pleas in support of its appeal.              of general application can no longer be regarded, in the light
                                                                         of Articles 6 and 13 of the European Convention for the
First plea: infringement of the Rules of Procedure of the Court          Protection of Human Rights and Fundamental Freedoms
of First Instance, on the ground that the case should have been          and Article 47 of the Charter of Fundamental Rights, as
referred to the Court of First Instance sitting in plenary session.      guaranteeing persons the right to an effective remedy. Nor can
                                                                         any such assimilation be inferred from any of the constitutional
Article 14(1) of the Rules of Procedure of the Court of First            traditions common to the Member States. In most Member
Instance provides that, whenever the legal difficulty or the             States, the direct right of individuals to seek annulment of a
importance of the case or special circumstances so justify, a            measure of general application is circumscribed in various
case may be referred to the Court of First Instance sitting in           ways.
plenary session. In the present case, the Court of First Instance
decided an important issue in a manner which overturned a
long-standing body of case-law of the Court of Justice. The
absence of any referral to the Court of First Instance sitting in
plenary session results from a manifest error of assessment
which is open to censure by the Court of Justice.                        The Court of First Instance was incorrect in its view that,
                                                                         where a regulation is directly effective and directly applicable,
Second plea: infringement of Community law, on the ground                the only way in which an aggrieved party may bring the matter
that the Court of First Instance construed the notion of                 before a national court is by committing an infringement of
‘individual concern’, as enshrined in the fourth paragraph of            the law, and that individuals cannot be required to breach the
Article 230 EC, in a manner contrary to the judicial system              law in order to gain access to justice. However, that is the
established by the Treaty.                                               position in various national legal orders.
 ---pagebreak--- 28.9.2002                 EN                      Official Journal of the European Communities                                        C 233/15
Thus, the criticisms made by the Court of First Instance                     —       If not, on a proper construction of those directives is the
concerning the ineffectiveness of the legal remedies conferred                       court to uphold the interpretation of its law according to
on individuals by the Community legal order are without any                          which it is authorised to set aside a provision of its
foundation in law.                                                                   national law which prohibits the consumer or the court
                                                                                     of its own motion from raising a plea of illegality
                                                                                     vitiating the formation or extension of a consumer credit
( 1) Commission Regulation (EC) No 1162/2001 of 14 June 2001                         agreement after a time-limit which derogates from the
     establishing measures for the recovery of the stock of hake in                  general law, in so far as it constitutes an exceptional
     ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d,          restriction on the right of action of the consumer and
     e and associated conditions for the control of activities of fishing            undermines the effectiveness of consumer protection?
     vessels (OJ 2001 L 159, p. 4).
                                                                             (1 ) Council Directive 87/102/EEC of 22 December 1986 for the
                                                                                  approximation of the laws, regulations and administrative pro-
                                                                                  visions of the Member States concerning consumer credit (OJ
                                                                                  L 42, 12.2.1987, p. 48).
                                                                             (2 ) Council Directive 90/88/EEC of 22 February 1990 amending
                                                                                  Directive 87/102/EEC for the approximation of the laws, regu-
                                                                                  lations and administrative provisions of the Member States
Reference for a preliminary ruling by the Tribunal d’In-                          concerning consumer credit (OJ L 61, 10.3.1990, p. 14).
stance de Vienne by judgment of that Court of 5 July
2002 in the case of S.A. Cofinoga Mérignac against Sylvain
                             Sachithanathan
                            (Case C-264/02)
                            (2002/C 233/23)                                  Reference for a preliminary ruling by the Corte Suprema
                                                                             di Cassazione by order of that Court of 11 April 2002 in
                                                                                the appeal brought by Frahuil SA against Assitalia SpA
Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal d’Instance                                            (Case C-265/02)
de Vienne of 5 July 2002, received at the Court Registry on
18 July 2002, for a preliminary ruling in the case of S.A.                                             (2002/C 233/24)
Cofinoga Mérignac against Sylvain Sachithanathan on the
following questions:
—      On a proper construction of Council Directive 87/102/                 Reference has been made to the Court of Justice of the
       EC ( 1) of 22 December 1986 and Council Directive 90/                 European Communities by order of the Corte Suprema di
       88/EC ( 2) of 22 February 1990 must the national court                Cassazione (Supreme Court of Cassation) of 11 April 2002,
       uphold the interpretation of its law which requires lenders           received at the Court Registry on 18 July 2002, for a
       of consumer credit to inform the consumer-borrower in                 preliminary ruling in the appeal brought by Frahuil SA against
       writing of the current annual percentage charge before                Assitalia SpA on the following question:
       each extension of an agreement for credit renewable in
       instalments at an interest rate that is stipulated to be              ‘Is Article 5(1) of the Brussels Convention of 27 September
       variable?                                                             1968, as amended by the Convention of 9 October 1978 on
                                                                             the accession of the Kingdom of Denmark, Ireland and the
—      On a proper construction of those directives must the                 United Kingdom of Great Britain and Northern Ireland, by the
       national court uphold the interpretation of its law                   Convention of 25 October 1982 on the accession of the
       which requires lenders of consumer credit to inform the               Hellenic Republic, by the Convention of 26 May 1989 on the
       consumer of the clause concerning the variation of that               accession of the Kingdom of Spain and the Portuguese
       annual percentage charge before the extension of that                 Republic and by the Convention of 29 November 1996 on the
       agreement?                                                            accession of the Republic of Austria, the Republic of Finland
                                                                             and the Kingdom of Sweden, to be interpreted as subsuming
                                                                             under the expression “matters relating to a contract” the
—      On a proper construction of those directives is the
                                                                             obligation which a guarantor who paid customs duties under
       national court to uphold the interpretation of its law
                                                                             a guarantee obtained by the forwarding agent seeks to enforce
       which authorises it to allow, without any time-limit, a
                                                                             in legal proceedings by way of subrogation to the financial
       plea of illegality vitiating the formation or extension of a
                                                                             authorities and by way of recourse against the third-party
       consumer credit agreement, such as that arising from
                                                                             debtor who is the owner of the imported goods but was
       failure to state the annual percentage charge, raised by
                                                                             unconnected with the guarantee?’
       the consumer or by the court of its own motion, in a
       dispute arising from an action for payment brought by
       the lender?