CELEX: C2003/101/38
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-78/03 P: Appeal brought on 20 February 2003 (by fax on 19 February 2003) by the Commission of the European Communities against the judgment delivered on 5 December 2002 by the Fourth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-114/00 between Aktionsgemeinschaft Recht und Eigentum eV and Commission of the European Communities, supported by the Federal Republic of Germany

26.4.2003              EN                         Official Journal of the European Union                                        C 101/23
Appeal brought on 20 February 2003 (by fax on 19 Febru-                        of particular circumstances in which the applicant is
ary 2003) by the Commission of the European Communi-                           differentiated from all other persons. The Court of First
ties against the judgment delivered on 5 December 2002                         Instance thereby infringed Articles 230, 232 and 234 EC
by the Fourth Chamber, Extended Composition, of the                            as interpreted by the Court of Justice;
Court of First Instance of the European Communities in
Case T-114/00 between Aktionsgemeinschaft Recht und
Eigentum eV and Commission of the European Communi-                       —    inasmuch as its findings were made on the basis that for
   ties, supported by the Federal Republic of Germany                          the purposes of the criterion of individual concern under
                                                                               Article 230 EC the competitive relationship (where
                                                                               competition constitutes the decisive criterion) is not the
                         (Case C-78/03 P)                                      same as when that criterion is applied to decisions under
                                                                               Article 88(2) EC and Article 88(3) EC in the sphere of
                                                                               State aid, so that admissibility is subject to different
                         (2003/C 101/38)                                       criteria. The Court of First Instance thereby infringed
                                                                               Articles 230, 232 and 234 EC as interpreted by the Court
                                                                               of Justice;
An appeal against the judgment delivered on 5 December
                                                                          —    inasmuch as it applied a criterion of competitive relation-
2002 by the Fourth Chamber, Extended Composition, of the
                                                                               ship (the applicant’s position under competition law must
Court of First Instance of the European Communities in
                                                                               be affected) which is different from, and less strict than,
Case T-114/00 ( 1) between Aktionsgemeinschaft Recht und
                                                                               the criterion established by the Court of Justice (the
Eigentum eV and Commission of the European Communities,
                                                                               applicant’s position under competition law must be
supported by the Federal Republic of Germany, was brought
                                                                               appreciably affected). The Court of First Instance thus
before the Court of Justice of the European Communities on
                                                                               infringed Articles 230, 232 and 234 EC as interpreted by
20 February 2003 (by fax on 19 February 2003) by the
                                                                               the Court of Justice;
Commission of the European Communities, represented by
James Flett, of its Legal Service, and Viktor Kreuschitz, Legal
Adviser, with an address for service in Luxembourg.
                                                                          —    inasmuch as it included in the judgment, of its own
                                                                               motion, without hearing the views of the Commission,
                                                                               the intervener or the applicant, a ground of action for the
The appellant claims that the Court of Justice should:                         purposes of Article 230 EC which was not contained in
                                                                               the application, namely the allegation that the Com-
—     set aside the judgment of the Court of First Instance of                 mission — unjustifiably — adopted its decision without
      5 December 2002 in Case T-114/00 Aktionsgemeinschaft                     initiating the procedure under Article 88(2) EC. The Court
      Recht und Eigentum eV v Commission;                                      of First Instance thereby infringed Article 230 EC, the
                                                                               Statute, the Rules of Procedure and a general principle of
                                                                               Community law — the Commmission’s right to a fair
—     give a final decision in the case and in so doing dismiss                hearing;
      the application as inadmissible on the ground that the
      contested act is not of individual concern, within the
      meaning of the fourth paragraph of Article 230 EC, to               —    inasmuch as it found that the applicant was affected in
      the applicant; or                                                        its capacity as negotiating partner and was therefore
                                                                               individually concerned by the contested act. The Court of
—     refer the case back to the Court of First Instance with                  First Instance thereby infringed Articles 230, 232 and
      regard to the question of admissibility; and                             234 EC as interpreted by the Court of Justice as well as
                                                                               the Statute, the Rules of Procedure and a general principle
                                                                               of Community law — the Commission’s right to a fair
—     order the applicant to pay the costs of Case T-114/00
      and of this appeal.                                                      hearing;
                                                                          —    inasmuch as it did not set out with sufficient clarity the
                                                                               reasons on which the contested judgment was based. The
Pleas in law and main arguments                                                Court of First Instance thereby infringed Article 253 EC;
The Court of First Instance erred
                                                                          —    inasmuch as it found, with regard to the applicant’s
                                                                               advice during the procedure under the provisions on
—     inasmuch as it found that its conclusion that the applicant              State aid, that on the one hand the applicant had not
      was individually concerned by the contested act was not                  been consulted and on the other hand had been consulted
      contradicted by the fact that the contested act is a measure             sufficiently for it to have acquired the status of a
      of general scope; and that the contested act affects the                 negotiating partner. By at least one of these findings or
      applicant (or one of the applicant’s members) by reason                  — in the Commission’s view — by both findings, the
      of certain attributes peculiar to the applicant or by reason             Court of First Instance completely distorted the facts of
 ---pagebreak--- C 101/24               EN                        Official Journal of the European Union                                             26.4.2003
       the case and made a manifest error of assessment. The             The Commission takes the view that there are alternative
       Court of First Instance thus infringed Articles 230, 232          methods for capturing thrushes with the aim of avoiding
       and 234 EC as well as the Statute and the Rules of                damage to crops, such as hunting with rifles or employing
       Procedure.                                                        auditory or visual deterrents using flare guns, vibrating tapes
                                                                         or a combination of such methods. In other Spanish regions
                                                                         (Andalusia, Castilla-La Mancha, etc) there are extensive areas
( 1) OJ C 44 of 22.2.2003.                                               of olive groves and vineyards where hunting with lime is not
                                                                         permitted and where hunting with rifles in autumn and winter
                                                                         is considered adequate protection.
                                                                         Finally, the derogation under Article 9(1)(c) of Directive 79/
                                                                         409/EEC cannot apply in view of the fact that the parany is a
                                                                         non-selective hunting method and the high number of speci-
                                                                         mens captured.
Action brought on 21 February 2003 by Commission of
    the European Communities against Kingdom of Spain
                                                                         (1 ) OJ 1979 L 103, p. 1.
                                                                         (2 ) According to Article 4(1) of Decree 135/2000, ‘the only species
                          (Case C-79/03)                                      whose capture is permitted are the following: song thrush (Turdus
                                                                              philomenus), fieldfare (Turdus pilares), redwing (Turdus iliacus)
                                                                              and mistle thrush (Turdus viscivorus)’.
                         (2003/C 101/39)
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 21 Febru-
ary 2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,            Action brought on 24 February 2003 (by fax on 21 Febru-
with an address for service in Luxembourg.                               ary 2003) by the Commission of the European Communi-
                                                                                        ties against the Republic of Austria
The applicant claims that the Court should:                                                           (Case C-81/03)
—      declare that, by tolerating the practice of hunting with                                      (2003/C 101/40)
       birdlime in the Autonomous Community of Valencia,
       governed by Decree 135/2000 of 12 September 2000 of
       the Government of Valencia laying down conditions and
       requirements for the granting of special permits for the
       hunting of thrush with birdlime in the Community of               An action against the Republic of Austria was brought
       Valencia, the Kingdom of Spain has failed to fulfil its           before the Court of Justice of the European Communities on
       obligations under Article 8(1) and Article 9(1) of Council        24 February 2003 (by fax on 21 February 2003) by the
       Directive 79/409/EEC ( 1) of 2 April 1979 on the conser-          Commission of the European Communities, represented by
       vation of wild birds.                                             Maria Patakia, Legal Adviser in the Commission’s legal service
                                                                         and Claudia Schmidt, a member of the Commission’s legal
                                                                         service, with an address for service at the office of Luis Escobar
—      order the Kingdom of Spain to pay the costs.                      Guerrero, a member of the Commission’s legal service, Wagner
                                                                         Centre C 254, Luxembourg-Kirchberg.
Pleas in law and main arguments                                          The Commission claims that the Court should:
                                                                         1.     declare that, by prohibiting, under Paragraph 7a of
The ‘parany’ is an arrangement intended for the capture of                      the Bundesgesetz über die Regelung der gehobenen
thrush ( 2), which requires the use of small twigs impregnated                  medizinisch-technischen Dienste (Federal Law on the
with birdlime. Hunting with birdlime is a non-selective method                  Regulation of Higher Medico-Technical Services; ‘MTD-
of capture, as referred to in Annex IV(a) to Directive 79/409/                  Gesetz’), the independent exercise in Austria of certain
EEC and, accordingly, prohibited under Article 8 thereof, since                 medico-technical professions (laboratory, radiological
it cannot be guaranteed that birds of the species listed in                     and orthoptic services), the Republic of Austria has failed
Annex I to Directive 79/409/EEC or other protected migratory                    to fulfil its obligations under Articles 43 and 49 EC;
or non-hunting species are not caught in the parany and
trapped in the lime.                                                     2.     order the Republic of Austria to pay the costs.