CELEX: C1999/048/28
Language: en
Date: 1999-02-20 00:00:00
Title: Appeal brought on 16 December 1998 by Industrie des Poudres Sphériques against the judgment delivered on 15 October 1998 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-2/95 between Industrie des Poudres Sphériques and the Council of the European Union, supported by the Commission of the European Communities, Péchiney Électrométallurgie and the Chambre Syndicale de l'Électrométallurgie et de l'Électrochimie (Case C-458/98 P)

20.2.1999              EN                  Official Journal of the European Communities                                  C 48/17
7. V i o l a t i o n o f t h e    legal   concept      of   the       3. What conditions must be satisfied for the issuer of an
     misuse of powers                                                     invoice to be acting in good faith?
     The Apellant further submits that the Court of First
     Instance made an error of law in applying the concept
     of misuse of powers in that:
                                                                      Reference for a preliminary ruling from the Pretura
                                                                      Circondariale di Brescia, by order of 24 November 1998,
     Ð it refused to appraise globally all the relevant and                  in the case of Centrosteel Srl v. Adipol GmbH
         consistent factors raised by the applicant and even
         omitted to examine an important number thereof;                                     (Case C-456/98)
                                                                                              (1999/C 48/27)
     Ð it illegally defined the type of facts which may
         constitute the objective, relevant and consistent            Reference has been made to the Court of Justice of the
         factors of a misuse of powers.                               European Communities by order of the Pretura
                                                                      Circondariale di Brescia (District Magistrate's Court,
                                                                      Brescia) of 24 November 1998, which was received at the
(1) OJ C 229, 2.9.1995, p. 22.
(2) OJ C 351, 30.12.1995, p. 17.
                                                                      Court Registry on 14 December 1998, for a preliminary
(3) Council Regulation No 17/62 of 6 February 1962 (First             ruling in the case of Centrosteel Srl v. Adipol GmbH on
    Regulation implementing Articles 85 and 86 of the Treaty)         the following questions:
    (OJ, English Special Edition 1959Ð1962, p. 87).
(4) Commission Regulation No 99/63/EEC of 25 July 1963 on the         1. What is the interpretation of Articles 52, 53, 54, 55,
    hearings provided for in Article 19(1) and (2) of Regulation          56, 57 and 58 of the EC Treaty; in particular, do
    No 17 (OJ, English Special Edition 1963Ð1964, p. 47).
                                                                          Articles 2 and 9 of Italian Law No 205 of 1985, under
                                                                          which entry in a register is compulsory for any person
                                                                          acting as an agent and an agency contract concluded
                                                                          by a person not entered on that register is void,
                                                                          constitute a restriction on the freedom of
                                                                          establishment?
Reference for a preliminary ruling by the Bundesfinanzhof             2. Do the provisions of the Treaty on freedom of
by order of that court of 15 October 1998 in the case of                  establishment contained in Articles 52 to 58 preclude
Schmeink & Cofreth AG & Co. KG against Finanzamt                          national legislation which makes the validity of an
 Borken and Manfred Strobel against Finanzamt Esslingen                   agency contract subject to entry of the commercial
                         (Case C-454/98)                                  agent in an appropriate register?
                          (1999/C 48/26)                              3. Do the provisions on freedom to provide services
                                                                          contained in Articles 59 to 66 preclude national
                                                                          legislation which makes the validity of an agency
Reference has been made to the Court of Justice of the                    contract subject to the requirement of entry of the
European Communities by order of the Bundesfinanzhof                      commercial agent in an appropriate register?
(Federal Finance Court) of 15 October 1998 received at
the Court Registry on 11 December 1998, for a
preliminary ruling in the cases of Schmeink & Cofreth AG
& Co. KG against Finanzamt Borken and Manfred
Strobel against Finanzamt Esslingen on the following
questions:                                                            Appeal brought on 16 December 1998 by Industrie des
                                                                      Poudres SpheÂriques against the judgment delivered on
                                                                      15 October 1998 by the Fifth Chamber, Extended
1. Does Community law require that provision be made                  Composition, of the Court of First Instance of the
     to allow rectification of an improperly invoiced tax as          European Communities in Case T-2/95 between Industrie
     part of the procedure for determining the tax or is it           des Poudres SpheÂriques and the Council of the European
     sufficient for the Member States to permit rectification         Union, supported by the Commission of the European
     only in a later procedure for determining whether                Communities, PeÂchiney EÂlectromeÂtallurgie and the
     payment of the tax is equitable (on objective'                  Chambre Syndicale de l'EÂlectromeÂtallurgie et de
     grounds)?                                                                                l'EÂlectrochimie
                                                                                            (Case C-458/98 P)
                                                                                              (1999/C 48/28)
2. Is it an imperative prerequisite for rectifying an
     improperly invoiced tax that the issuer of the invoice
     should demonstrate good faith or are there other                 An appeal against the judgment delivered on 15 October
     circumstances in which an invoice may be rectified               1998 by the Fifth Chamber, Extended Composition, of the
     (and, if so, what are those circumstances)?                      Court of First Instance of the European Communities in
 ---pagebreak--- C 48/18               EN                 Official Journal of the European Communities                                 20.2.1999
Case T-2/95 between Industrie des Poudres SpheÂriques and           Appeal brought on 16 December 1998 by Isabel Martínez
the Council of the European Union, supported by the                 del Peral Cagigal against the order of the First Chamber of
Commission of the European Communities, PeÂchiney                   the Court of First Instance of 14 October 1998 in Case
EÂlectromeÂtallurgie and the Chambre Syndicale de                   T-224/97: Isabel Martínez del Peral Cagigal v.
l'EÂlectromeÂtallurgie et de l'EÂlectrochimie, was brought                   Commission of the European Communities
before the Court of Justice of the European Communities                                  (Case C-459/98 P)
on 16 December 1998 by Industrie des Poudres
SpheÂriques, represented by Chantal MomeÁge, of the Paris                                  (1999/C 48/29)
Bar, with an address for service in Luxembourg at the
Chambers of A. May, 31 Grand-Rue.
                                                                    An appeal against the order made on 14 October 1998 by
                                                                    the First Chamber of the Court of First Instance of the
The appellant claims that the Court should:                         European Communities in Case T-224/97 between Isabel
                                                                    Martínez del Peral Cagigal and Commission of the
                                                                    European Communities was brought before the Court of
Ð set aside the judgment delivered by the Court of First            Justice of the European Communities on 16 December
     Instance on 15 October 1998 in Case T-2/95 and itself          1998 by Isabel Martínez del Peral, represented by Antonio
     give final judgment in the case;                               Creus and BegonÄa Uriarte Valiente, with an address for
                                                                    service at the Chambers of Cuatrecasas Abogados, 78
                                                                    Avenue d'Auderghem, Brussels.
Ð order the Council and all the interveners to pay the
     costs of the proceedings for interim measures and on
     the substance of the case before the Court of First            The appellant claims that the Court of Justice should:
     Instance, together with the costs of the present
     proceedings.
                                                                    Ð allow this case to proceed and accordingly:
Pleas in law and main arguments adduced in support:
                                                                    Ð set aside the order of the Court of First Instance of
                                                                        14 October 1998 in case T-224/97 on the grounds
The judgment of the Court of First Instance disregards                  stated;
Articles 174 and 176 of the EC Treaty and Articles 7(1)
and (9) and 14 of Council Regulation (EEC) No 2423/88
                                                                    Ð give judgment itself on the basis of the submissions of
of 11 July 1988 on protection against dumped or
                                                                        the appellant in her initial application and, in
subsidised imports from countries not members of the
                                                                        particular:
European Economic Community (1).
                                                                        Ð declare admissible the application lodged by the
Following the annulment, by judgment of the Court of                        appellant, which seeks review of her situation
Justice of 11 June 1992 in Case C-358/89 Extramet v.                        under Article 31(2) of the Staff Regulations, with a
Council [1992] ECR I-3813, of an initial regulation                         view to possible reclassification;
imposing an anti-dumping duty, the institutions were
under an obligation to take the requisite steps to comply               Ð annul the negative decision of 24 October 1996
with that judgment. The Court of First Instance erred in                    rejecting the appellant's request that an appraisal
finding that it was open to the Commission, to that end,                    be undertaken with a view to the possible
to decide to carry out a fresh investigation involving,                     application of Article 31(2) of the Staff
moreover, a different reference period.                                     Regulations; and, so far as necessary, annul the
                                                                            explicit decision of refusal adopted by the
                                                                            Commission on 29 April 1997 in response to the
The judgment of the Court of First Instance disregards the                  appellant's complaint;
fundamental principle of respect for the right to a fair
hearing and the provisions of Articles 7(4) and 8(3) of the
aforementioned Council Regulation.                                      Ð declare that the appellant is entitled to have
                                                                            her initial classification reviewed, with a view
                                                                            to possible reclassification, with financial
The Court of First Instance wrongly considered that the                     consequences as from 5 October 1995.
numerous irregularities found to have occurred in the
course of the administrative procedure, in particular the
                                                                    4. Order the Commission to pay the costs of the
delayed communication of a note submitted by PEM and
                                                                        proceedings at both instances.
the lack of access, in the form of a non-confidential
summary, to certain documents, did not affect the
appellant's procedural rights.                                      Pleas in law and main arguments adduced in support
(1) OJ L 209, 2.8.1988, p. 1.
                                                                    Ð Breach of Community law: the order is not consistent
                                                                        with the case-law of the ECJ and CFI concerning
                                                                        recommencement of the period for instituting