CELEX: C1999/020/45
Language: en
Date: 1999-01-23 00:00:00
Title: Appeal brought on 3 December 1998 by Industria del Frío Auxiliar Conservera SA against the order made on 15 September 1998 by the Second Chamber of the Court of First Instance of the European Communities in Case T-136/95 Industria del Frío Auxiliar Conservera SA v. Commission of the European Communities (Case C-437/98 P)

23.1.1999           EN                  Official Journal of the European Communities                                    C 20/27
Ms Jouhki acted in accordance with the competition rules               (a) annul Commission Decision 95/119/EC of 7 April
contained in the notice of competition in producing the                      1995 concerning certain protective measures with
required evidence of her basic training and her                              regard to fishery products originating in Japan
professional training by means of a nurse's diploma. She                     (OJ L 80, 8.4.1995, p. 56) in so far as it affects
was therefore entitled to be admitted to competition                         fisheries products in transit to the Community at
COM/B/973.                                                                   the time of publication of the decision,
The notice of competition was drawn up by the                          (b) order the European Community to pay
Commission alone and the candidates had no opportunity                       compensation in respect of the damage incurred
to influence its content or the expressions and wording                      by the appellant as detailed in the second indent
used in it.                                                                  of the application for annulment and
                                                                             compensation before the Court of First
                                                                             Instance (1),
As a Finnish candidate, Ms Jouhki should have been able
to be confident that the Finnish language notice would be
expressed and interpreted in accordance with the Finnish               (c)   order the Commission to pay the costs incurred
language. That confidence must be protected.                                 by the appellant in the proceedings before both
                                                                             Court of First Instance and the Court of Justice,
In accordance with a general principle of law, the notice
must be interpreted against its author, the Commission.            Ð in the alternative: in the event that final judgment is
                                                                       not given in the terms requested under the second
                                                                       indent owing to the status of the proceedings:
                                                                       (a) annul the contested decision in the terms set out
                                                                             under letter a) of the preceding indent,
Appeal brought on 3 December 1998 by Industria del Frío
Auxiliar Conservera SA against the order made on
15 September 1998 by the Second Chamber of the Court                   (b) refer the case back to the Court of First Instance
of First Instance of the European Communities in Case                        for it to deal with the application for
T-136/95 Industria del Frío Auxiliar Conservera SA v.                        compensation;
        Commission of the European Communities
                    (Case C-437/98 P)
                                                                       (c)   order the Commission to pay the costs incurred
                      (1999/C 20/45)                                         by the appellant in the proceedings before both
                                                                             the Court of First Instance and the Court of
                                                                             Justice to the extent to which they relate to the
                                                                             application for annulment, and direct that the
An appeal against the order made on 15 September 1998
                                                                             decision on the costs of the application for
by the Second Chamber of the Court of First Instance of
                                                                             compensation is a matter for the Court of First
the European Communities in Case T-136/95 Industria del
                                                                             Instance.
Frío Auxiliar Conservera SA v. Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 3 December
1998 by Industria del Frío Auxiliar Conservera SA,
                                                                   Ð In the further alternative: in the event that final
a     Spanish    company,      represented     by    Ignacio
                                                                       judgment is not given in the terms requested in the
SaÂenz-Cortabarría FernaÂndez and Marta Morales Isasi, of
                                                                       second indent owing to the status of the proceedings,
the Vizcaya Bar, with an address for service in
                                                                       refer the matter back to the Court of First Instance for
Luxembourg at the Chambers of Guy Harles, 8-10 Rue
                                                                       it to deal with both the application for annulment and
Mathias Hardt.
                                                                       the application for compensation.
The appellant claims that the Court should:
                                                                   Pleas in law and main arguments adduced in support:
Ð set aside the decision of the Court of First Instance of
    15 September 1998 in Case T-136/95;
                                                                   Ð Error in law in holding that a preliminary ruling by
                                                                       the Court of Justice rejecting the grounds of alleged
                                                                       invalidity     justifies  dismissing    the    applicant's
Ð give final judgment in the case and:                                 applications and discontinuing the proceedings. A
 ---pagebreak--- C 20/28                EN                   Official Journal of the European Communities                                23.1.1999
     judgment of the Court of Justice delivered in the                 Action brought on 3 December 1998 by the Commission
     context of a reference for a preliminary ruling (2)               of the European Communities against the Grand Duchy of
     rejecting grounds of alleged invalidity does not                                             Luxembourg
     constitute in the strict sense a declaration that the                                     (Case C-438/98)
     Community measure is valid Ð that is, compatible
     with the EC Treaty Ð but rather, where there is no                                         (1999/C 20/46)
     declaration of invalidity, merely an indication by the
     Court that its examination has disclosed no factor of
     such a kind as to affect the validity' of the measure,            An action against the Grand Duchy of Luxembourg was
     from which it follows that there is nothing to prevent            brought before the Court of Justice of the European
     it from being declared invalid in a future judgment on            Communities on 3 December 1998 by the Commission of
     other grounds.                                                    the European Communities, represented by Antonio
                                                                       Aresu, of its Legal Service, and Nicola Yerrell, a national
                                                                       civil servant on secondment to its Legal Service, acting as
                                                                       Agents, with an address for service in Luxembourg at the
Ð Infringement of the rights of the defence and the right              Office of Carlos Gómez de la Cruz, Wagner Centre,
     to obtain effective legal protection owing to the failure         Kirchberg.
     by the Court of First Instance sufficiently to take into
     consideration, and in any event sufficiently to                   The Commission of the European Communities claims
     examine, each and every one of the appellant's claims             that the Court should:
     in the light of the new information presented to it
     after the written stage; manifest distortion of such
     evidence: in its Decisions 97/513/EC (3), 97/515/EC (4)           (a) declare that, by failing to adopt and/or to
     and 97/516/EC (5), the Commission considered that an                    communicate to the Commission the laws,
     alternative measure to protect the interests of goods in                regulations and administrative measures necessary in
     transit upon the entry into force of a ban on imports                   order to comply with Council Directive 96/97/EC of
     requiring such goods to undergo special analyses did                    20 December 1996 amending Directive 86/378/EEC
     not involve any risk to public health.                                  on the implementation of the principle of equal
                                                                             treatment for men and women in occupational social
                                                                             security schemes (1), the Grand Duchy of Luxembourg
                                                                             has failed to fulfil its obligations under the EC
Ð Breach of essential procedural requirements: at the                        Treaty; and
     sitting of the full Court of 11 January 1996, the case
     was assigned to a Chamber of five judges. The order
                                                                       (b) order the Grand Duchy of Luxembourg to pay the
     of 2 May 1996 granting leave for the plea of
                                                                             costs.
     inadmissibility brought by the Commission to be
     considered at the same time as the substance of the
     case was adopted by the Second Chamber, Extended                  The pleas in law and main arguments are the same as in
     Composition. The appellant expressed surprise at the              Case C-429/98 (2); the time-limit prescribed by the
     application for the case to be assigned to a Chamber              directive expired on 1 July 1997.
     composed of three judges, but did not object. The
     appellant considers that the Second Chamber,
                                                                       (1) OJ L 46, 17.2.1997, p. 20.
     composed of three judges, is not competent to adopt
                                                                       (2) See page 23 of this Official Journal.
     the order appealed against, by which the applications
     for annulment and compensation were dismissed and
     the proceedings thus deemed closed.
(1) OJ C 229, 2.9.1995, p. 24.
(2) Judgment of the Court of Justice of 17 July 1997, in Case
    C-183/95 Affish [1997] ECR I-4315.
                                                                              Removal from the register of Case C-278/97 (1)
(3) Commission Decision 97/513/EC of 30 July 1997 concerning                                    (1999/C 20/47)
    certain protective measures with regard to certain fishery
    products originating in Bangladesh (OJ L 214, 6.8.1997,
    p. 46).
(4) Commission Decision 97/515/EC of 1 August 1997 concerning          By order of 7 October 1998, the President of the Court of
    certain protective measures with regard to certain fishery         Justice of the European Communities ordered the removal
    products originating in India (OJ L 214, 6.8.1997, p. 52).         from the register of Case C-278/97 (Reference for a
(5) Commission Decision 97/516/EC of 1 August 1997 concerning          preliminary ruling from the Oberster Gerichtshof):
    certain protective measures with regard to certain fishery         Wrangler Germany GmbH v. Metro Selbstbedienungs-
    products originating in Madagascar (OJ L 214, 6.8.1997,            Groûhandel GmbH.
    p. 53).
                                                                       (1) OJ C 295, 27.9.1997.