CELEX: C1997/212/19
Language: en
Date: 1997-07-12 00:00:00
Title: Appeal brought on 25 April 1997 by Kernkraftwerke Lippe-Ems GmbH against the judgment delivered on 25 February 1997 by the Court of First Instance of the European Communities (First Chamber, Extended Composition) in Joined Cases T-149/94 and T-181/94 between Kernkraftwerke Lippe-Ems GmbH and Commission of the European Communities (Case C-161/97 P)

No C 212/ 10              EN                 Official Journal of the European Communities                                          12 . 7 . 97
( d ) The fourth question concerns the process by which                 ( m ) The 11th question concerns the circumstances in
        usage comes into being; that is, whether consistent                      which insertion of the clause in question in a form
        incorporation of the clause in bills of lading issued by                 drawn up by one party but not signed by the other
        trade associations or a significant number of maritime                   party may be considered either an excessive burden
        transport undertakings is sufficient or whether it must                  on the latter or unlawful .
        be demonstrated that since users of such transport
        (whether traders or otherwise ) have not made any               ( n ) The 12th question involves ascertaining whether the
        observations or expressed reservations regarding                         party concerned was or ought to have been aware of
        consistent incorporation of the clause, they have                        the usage, other than with regard to the condition set
        tacitly acquiesced to the conduct of the other party,                     forth in paragraph (e ), above, as regards the bill of
        so that there may no longer be considered to be a                         lading itself, which contained numerous clauses
        dispute between them.                                                     appearing on the reserve ( paragraph ( b ), above ).
 ( e ) The fifth question concerns the form in which such
                                                                        ( o ) The 13th question involves identifying the person
        consistent practice is publicized, that is, whether the                   who is or ought to have been aware of the usage;
        bill of lading in which the jurisdiction clause is
                                                                                  whether it must be the original shipper, even if he
        contained must be lodged at a particular office ( trade                   does not belong to a Contracting State ( such as, in
        association, chamber of commerce, port authorities,
                                                                                  the present case, Argentina ), or whether it is sufficient
        and so on ) for consultation or must be brought to the                    for it to be the endorsee of the bill , who does belong
        notice of the public in some other way.
                                                                                  to a Contracting State ( in the present case, Italy ).
 ( f) The sixth question concerns the validity of the clause,
        even where, by virtue of the substantive rules                   ( p ) The 14th question is concerned with whether the
        applicable in the chosen court, it takes the form of a                    phrase ' ought to have been aware' refers to the
        clause exempting the carrier from, or limiting, his                       criterion of good faith and objective lawfulness when
        liability.                                                                a particular contract was drawn up or to the criterion
                                                                                  of ordinary care on the part of individuals who must
                                                                                  be fully informed of current practices in international
 (g) The seventh question is concerned with whether the                           trade, for the purposes of paragraph ( i ), above .
        court ( other than the chosen court) which has been
        called upon to assess the validity of the clause may             (') Article 17 of the Brussels Convention of 27 September 1968 as
         examine the reasons for it, that is to say, the intention             amended by the Convention relating to the accession of the
         of the carrier in the choice of court made, as distinct               Kingdom of Denmark, of Ireland and of the United Kingdom
         from the court which would have had jurisdiction                      of Great Britain and Northern Ireland, signed at Luxembourg
         according to the usual criteria laid down in the                      on 9 October 1978 ( OJ No L 304, 30. 10 . 1978 , p. 1 ).
         Brussels Convention or by the lex fori.                         ( 2 ) [ 1984] ECR, p . 2417 .
  ( h ) The eighth question consists in ascertaining whether
         the fact that many shippers and/or endorsees of bills
         of lading have challenged the validity of the clause by
         bringing an action before a court other than that
         designated in the clause itself is indicative of the fact       Appeal brought on 25 April 1997 by Kernkraftwerke
         that usage regarding the insertion of the clause in             Lippe-Ems GmbH against the judgment delivered on
         forms has not become well established .                         25 February 1997 by the Court of First Instance of
                                                                          the European Communities (First Chamber, Extended
  (i )   The ninth question consists in ascertaining whether              Composition ) in Joined Cases T-149/94 and T-181/94
         the usage must exist in all the countries of the                           between Kernkraftwerke Lippe-Ems GmbH and
         European Community or whether the expression                                 Commission of the European Communities
         ' international trade or commerce ' is intended to meari                                   Case C-161 /97 P )
         that it is sufficient for the usage to be practised in
                                                                                                       ( 97/C 212/ 19 )
         those countries which, in the context of international
         trade or commerce, have traditionally played a
         prominent role.                                                  An appeal against the judgment delivered on 25 February
                                                                          1997 by the Court of First Instance of the European
   (1 )  The 10th question consists in ascertaining whether               Communities (First Chamber, Extended Composition )
         the usage in question may derogate from mandatory                in Joined Cases T-149/94 and T-181 /94 between
          statutory provisions of individual States, such as, in          Kernkraftwerke Lippe-Ems GmbH and Commission of the
         Italy, Article 1341 of the Civil Code which, with                European Communities was brought before the Court of
          regard    to the general contractual terms and                  Justice of the European Communities on 25 April 1997 by
          conditions drawn up by one of the parties, provides             Kernkraftwerke Lippe-Ems GmbH, represented by Bernd
          that, in order for the usage to be valid, the other             Kunth , Gerhard Wiedemann and Helmut Nicolaus,
          party must be or ought to have been aware of it and              Rechtsanwalte, of Kanzlei Bruckhaus Westrick Stegemann,
          provides that clauses laying down particular                     Diisseldorf, with an address for service in Luxembourg at
          limitations to or derogating from the jurisdiction of            the Chambers of Alex Bonn , 22 Cote d'Eich, L-1450
          the courts must be specifically approved.                        Luxembourg.
 ---pagebreak--- 12 . 7. 97             EN                  Official Journal of the European Communities                                     No C 212/ 11
The applicant claims that the Court should :                          — The Court of First Instance wrongly rejected the
                                                                             applicant's fifth plea in law alleging misuse of powers.
1 . set aside the judgment of the Court of First Instance of
     25 February 1997 in Joined Cases T-149/94 and                    Case          T- 181 / 94       concerning          Commission
     T-181 /94 H ;                                                    Decision 94 / 285 / Euratom of                    21 February
                                                                      1994 .
2 . declare that the Commission's decision of 4 February              — The Court of First Instance wrongly rejected the
     1994 ( C(94 ) 243 final ) is null and void;                             applicant's first plea in law. According to the first two
                                                                             limbs of that plea, the Agency was obliged under
3 . declare that the Commission's decision of 21 February                    Article 5a of the above Regulation to conclude the
     1994 ( C(94 ) 344 final ) is null and void;                             contract submitted to it and breached that obligation
                                                                             by setting a condition concerning the origin of the
                                                                             materials at issue . Contrary to the findings of the
4 . order Euratom to pay damages of DM 3 511 279,30,                         Court of First Instance, there were no legal or material
     together with interest at 6% from 7 April 1994;                         obstacles, such as are referred to in Article 61 of the
                                                                             Euratom Treaty, to meeting the order at issue . It in no
                                                                             way endangered security of supply, the price in
5 . order the Commission to pay the costs of the appeal                      question could not be regarded as contrary to the
     proceedings and the costs of the proceedings before                     commercial agreement between the Community and
     the Court of First Instance, together with the costs                    the Union of Soviet Socialist Republics and meeting
     incurred during the pre-litigation procedure in so far                  that order does not compromise equality of access to
     as they are not already covered by the claim for                        sources of supply, referred to in Article 52 ( 1 ) of the
     damages at point 4 above .                                              Euratom Treaty. The Court of First Instance
                                                                             disregarded the fact that the Agency and the
                                                                             Commission only take into account the interests of
Pleas in law and main arguments adduced in support:                          producers, which is inconsistent with the aims of the
                                                                             Community laid down in Article 1 of the Euratom
Case         T-149 / 94      concerning          Commission
                                                                             Treaty (third and fourth limbs of the pleas ).
Decision 94 / 95 / Euratom of 4 February 1994 :
                                                                      — The Court of First Instance wrongly rejected the
                                                                             applicant's second plea in law: the Agency breached
— the Court of Fist Instance wrongly rejected the                            the principle of legal certainty because the criteria on
     applicant's first and second pleas in law: it is clear                  which its decisions were based were not disclosed .
     that, under Article 5a ( d ) of the Rules of the Supply                 There was also a breach of the principle of equal
     Agency of determining the manner in which demand is                     treatment with respect to end users and of the
     to be balanced against the supply of ores, source                        principle of proportionality.
      materials and special fissile materials ( 2 ), the Agency
      could only conclude or refuse the contract submitted
      to it, and that a request for information on the                — The Court of First Instance wrongly rejected the
      geographical origin of the materials in question was                    applicant's third plea in law: the Agency infringed the
      unjustifiable . Such a request could not extend the                     rules concerning the division of powers . It was not for
      strict time limit — 10 working days — within which                      the Agency to set a supply policy for the Community,
      the Agency is to act. The Court of First Instance                       a task for the political institutions, namely the Council
                                                                              and the Commission .
      wrongly assumed that the applicant knew the origin of
      the materials in question at the time of submitting the
      contract to the Agency.                                          — The Court of First Instance wrongly rejected the
                                                                              applicant's fourth plea in law: the Commission did not
                                                                              take into account all the arguments put forward by the
 — The Court of First Instance wrongly rejected the                           applicant.
      applicant's third plea in law: since the Agency could
      only conclude or refuse the contract within the period
      prescribed, it thus infringed the rules regarding the            — The Court of First Instance wrongly rejected the
       division of powers .                                                   applicant's fifth plea in law alleging a misuse of
                                                                              powers .
 — The Court of First Instance wrongly rejected the
       applicant's fourth plea in law: so far as concerns the          — Lastly, the Court of First Instance erred in dismissing
       request for information, the duty to state reasons is                   the claim for damages .
       incumbent not only on the Commission when it takes
       decisions under the second paragraph of Article 53 of           (<) OJ No C 108 , 5 . 4 . 1997, p . 20 .
       the Euratom Treaty, but also on the Agency. The                 ( 2 ) Official Journal , English Special Edition 1959—62, p. 46 , as
       statement of reasons given in the Commission 's                       amended on 15 July 1975 ( OJ No L 193 , 25 . 7. 1975 , p. 37 ).
       decision is incorrect and confuses the country of origin
       with the source of supply.