CELEX: C1998/312/09
Language: en
Date: 1998-10-10 00:00:00
Title: Appeal brought on 4 August 1998 by David T. Keeling against the order made on 8 June 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-148/97 between David T. Keeling and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Case C-305/98 P)

C 312/4                EN                   Official Journal of the European Communities                                    10.10.98
Pleas in law and main arguments adduced in support:                         to a semen collection centre as laid down in
                                                                            paragraph 1(b) of Chapter I of Annex B to Directive
Infringement of Community law, and in particular:                           88/407/EEC?
                                                                       If the answer to question 1 is affirmative:
Ð disregard of the case-law of the Court of Justice with
     regard to reinstatement following the termination of a
     period of leave on personal grounds: according to the             2. Should the transitional rule set out in Article 20 of
     Court of Justice, an institution is not obliged to                     Directive 88/407/EEC be construed as meaning that it
     reinstate an official on the first occasion that the                   is applicable by analogy to semen which was collected
     requirements of Article 40 of the Staff Regulations are                and processed prior to 1 July 1994?
     fulfilled if the official's conduct is such as to cast
     doubt on the seriousness of his intention to make                 If the answer to question 1 is affirmative and the answer
     himself available to the institution (2). The Court of            to question 2 negative:
     First Instance wrongly allowed itself to be guided by
     its own interpretation of Article 40(4)(d) of the Staff           3. Is Directive 93/60/EEC invalid as being contrary to
     Regulations of Officials (3), with the result that it made             general principles of law, in particular the principle of
     incomplete findings of fact and declined to accept                     the protection of legitimate expectations and the
     material evidence,                                                     principle of proportionality, in so far as that Directive
                                                                            does not provide for transitional measures to counter
Ð disregard of the case-law of the Court of Justice with                    obstacles to intra-Community trade in the semen of
     regard to non-contractual liability: the Court of First                bulls which had already, in accordance with the
     Instance failed to take into account the extent to                     provisions then in force, been admitted to an approved
     which the respondent contributed to the delay in his                   semen collection centre before Directive 93/60/EEC
     reinstatement.                                                         was adopted?
(1) OJ C 234, 25.7.1998, p. 25.                                        If the answer to question 1 is negative:
(2) Judgment of the Court of Justice of 27 October 1977 in
    Joined Cases 126/75, 34/96 and 92/96 Giry v. Commission            4. The provision in Article 1(8) of Directive 93/60/EEC
    [1977] ECR 1937, paragraphs 7 and 20.
                                                                            amended the second subparagraph of paragraph 1(b)
(3) Judgment of the Court of First Instance of 1 July 1993 in Case
    T-40/90 Giordani v. Commission [1993] ECR II-721.
                                                                            of Chapter I of Annex B to Directive 88/407/EEC
                                                                            (The animals may not previously have been kept in
                                                                            other herds of a lower status') to read The animals
                                                                            may not previously have been kept in one or more
                                                                            herds of a lower status'. Must this amendment be
                                                                            construed as being exclusively a clarification or as a
                                                                            substantive amendment to the requirements applying
Reference for a preliminary ruling by the College van                       in regard to the admission of bovine animals to an
Beroep voor het Bedrijfsleven in the case of K. V. S.                       approved semen collection centre?
International BV v. Minister van Landbouw, Natuurbeheer
                           en Visserij                                 (1) OJ L 194, 22.7.1988, p. 10.
                        (Case C-301/98)                                (2) OJ L 186, 28.7.1993, p. 28.
                         (98/C 312/08)
Reference has been made to the Court of Justice of the
European Communities by decision of 17 July 1998 from
the College van Beroep voor het Bedrijfsleven                          Appeal brought on 4 August 1998 by David T. Keeling
(Administrative Court for Trade and Industry), which was               against the order made on 8 June 1998 by the Third
received at the Court Registry on 31 July 1998, for a                  Chamber of the Court of First Instance of the European
preliminary ruling in the case of K. V. S. International BV            Communities in Case T-148/97 (1) between David T.
v. Minister van Landbouw, Natuurbeheer en Visserij                     Keeling and the Office for Harmonisation in the Internal
(Minister for Agriculture, Nature Management and                                     Market (Trade Marks and Designs)
Fisheries) on the following questions:                                                       (Case C-305/98 P)
                                                                                               (98/C 312/09)
1. Must Article 3(b) of Directive 88/407/EEC (1) be
     construed as meaning that semen from a bull which
     was admitted to an approved semen collection centre               An appeal against the order made on 8 June 1998 by the
     before the adoption of amending Directive 93/60/                  Third Chamber of the Court of First Instance of the
     EEC (2) on the ground that it satisfied the admission             European Communities in Case T-148/97 between David
     requirements in force at that time does not (any                  T. Keeling and the Office for Harmonisation in the
     longer) satisfy the condition set out in Article 3(b) of          Internal Market (Trade Marks and Designs), was brought
     the Directive if the animal in question fails, at the time        before the Court of Justice of the European Communities
     when certification of the semen is applied for, to                on 4 August 1998 by David T. Keeling, of Alicante, Spain,
     satisfy the amended requirement governing admission               represented by Professor A. A. Dashwood, instructed by
 ---pagebreak--- 10.10.98               EN                Official Journal of the European Communities                                    C 312/5
Edward Lewis, Solicitors, with an address for service               Regulation. The Office was created by a Council
in Luxembourg at the Chambers of Maître ArseÁne                     Regulation based on Article 235 of the Treaty: the acts of
Kronshagen, 22, rue Marie Adelaide.                                 any body created by Community legislation which are
                                                                    capable of producing binding legal effects must be
                                                                    amenable to judicial review under Article 173 of the
The appellant claims that the Court should:                         Treaty. In the contested order, the Court of First Instance
                                                                    appears to have taken the view that, in so far as an action
1. set aside the order of the Court of First Instance of            for annulment may be the appropriate remedy for
     8 June 1998 dismissing as manifestly inadmissible the          challenging a decision of the President of the Office, such
     application in Case T-148/97;                                  proceedings cannot be brought directly against the Office
                                                                    under Article 173 of the Treaty; instead an application
                                                                    must first be made to the Commission under Article 118
2. remit the case to the Court of First Instance so that            of the Regulation and the Commission's decision may
     the written procedure may resume;                              then be challenged in the Court under Article 173 of the
                                                                    Treaty. In the appellant's submission there are several
3. order the respondent to pay the costs of this appeal.            reasons why an application to the Commission, followed
                                                                    by an action for annulment against the Commission,
                                                                    would not be an appropriate means of obtaining judicial
Pleas in law and main arguments adduced in support:                 review of acts of the President of the Office.
The appellant submits that the Court of First Instance
                                                                    First, grave doubts may be felt as to the validity of
erred in law by holding that the legality of the contested
                                                                    Article 118 of the Regulation, at least in the interpretation
decision could not be challenged by way of an action for
                                                                    given to it in the contested decision. That Article purports
annulment under Article 173 of the EC Treaty.
                                                                    to confer on the Commission a judicial function which,
                                                                    under the Treaty, would normally fall to the Court of
In the applicant's view the Court of First Instance failed to       Justice and the Court of First Instance. It is unthinkable
draw the correct inferences from the judgment of the                that a Council Regulation based on Article 235 of the
Court of Justice in Les Verts v. European Parliament (2) in         Treaty could transfer part of the jurisdiction of the Court
which the Court held that an action for annulment under             of Justice to the Commission.
Article 173 could be brought in respect of acts of the
European Parliament intended to produce legal effects vis-
aÁ-vis third parties, even though the Parliament was not at         Secondly, the very wording of Article 118 seems to
that time mentioned in the text of Article 173. The reason          condemn the provision to redundancy, at least as regards
given by the Court for that ruling was that in a                    acts which are capable of producing binding legal effects.
Community founded on the rule of law the Court must be
able to review the legality of all acts adopted by an organ
governed by Community law which are capable of                      Thirdly, there is no good reason why a person wishing to
trespassing on the powers of the Member States or the               challenge a decision of the President of the Office should
other institutions or of exceeding the power of their               be required to bring an action against the Commission.
author.
                                                                    Fourthly, a special process of review interposing the
The Court implicitly took a similar position in relation to         Commission between the litigant and the author of a
acts of the Court of Auditors in Maurissen v. Court of              contested act would only be acceptable if the procedural
Auditors (3); moreover, in his opinion in that case,                safeguards available to the individual under Article 118 of
advocate-general Darmon described the Court's analysis in           the Regulation were equivalent to those under Article 173
Les Verts as having been expressed so unreservedly' that           of the Treaty. That is manifestly not the case.
it could be applied without limitation to review of
measures adopted by the Court of Auditors'. The
advocate-general also dealt explicitly with the point that          Fifthly, the Court of First Instance does not seem to have
the Court of Auditors was not, at the time, one of the              addressed the anomalous situation that would occur if the
institutions' listed in Article 4(1) of the EC Treaty. On          Commission upheld an application under Article 118 and
this, he said:                                                      the President of the Office then challenged the
                                                                    Commission's decision (as he presumably could) under
    The need to review the legality of measures can be no          Article 173. In that event, the only way in which the party
    less pressing in the case of a measure adopted by a             who made the application to the Commission under
    ªquasi-institutionº or ªan auxiliary body vested with           Article 118 could take part in the proceedings before the
    specific powers of an administrative natureº'.                  Court would be to apply for leave to intervene in the
                                                                    action between the Office and the Commission under
                                                                    Article 37 of the Statute of the Court of Justice of the EC.
In the appellant's submission, the same reasoning must
apply with equal force to acts of the President of the
Office, especially to acts such as the contested decision, in       Sixth, and finally, what goes for an individual like the
view of its serious implications for the independence of            appellant, must equally go for the Member States, since
the quasi-judicial Boards of Appeal established by the              they, too, have a remedy under Article 118 of the
 ---pagebreak--- C 312/6               EN                  Official Journal of the European Communities                                  10.10.98
Regulation. On the other hand, it must presumably, be                1. What should the requirements be for furnishing proof
open to the Commission to bring proceedings in respect of                 of the place where an irregularity or offence was
decisions of the President of the Office directly under                   actually committed in the course of a transport
Article 173. That the Member States should be differently                 operation carried out under cover of a TIR carnet
situated from the Commission in the matter of challenging                 (first subparagraph of Article 454(3) of Commission
such decisions seems constitutionally anomalous.                          Regulation (EEC) No 2454/93 (OJ L 253, 11.10.1993,
                                                                          p. 1))? Is a statement from the carnet holder and the
(1) OJ C 199, 28.6.1997, p. 39.                                           testimony of the lorry driver who has effected the
(2) Case 294/83, [1986] ECR 1339.                                         transport for the carnet holder sufficient or must the
(3) Joined Cases 193/87 and 194/87, [1989] ECR 1045.                      proof comprise documents which unambiguously show
                                                                          that the competent authorities in the other Member
                                                                          State reached the conclusion that the irregularity or
                                                                          offence was committed on their territory?
Reference for a preliminary ruling by the Finanzgericht              2. If the Court of Justice takes the view that the actual
München by order of that court of 24 June 1998 in the                     place where the irregularity or offence was commited
case of Holz Geenen GmbH against Oberfinanzdirektion                      can be proved on the basis of statements of the carnet
                           München                                        holder and the testimony of the lorry driver who
                                                                          effected the transport operation, are the third and
                       (Case C-309/98)                                    fourth subparagraphs of Article 454(3) of Directive
                         (98/C 312/10)                                    (EEC) No 2454/93 to be interpreted as meaning that
                                                                          they also apply in cases where the charges were
                                                                          recovered in the Member State where the irregularity
                                                                          or offence was detected, even though it has been
Reference has been made to the Court of Justice of the
                                                                          proved that the irregularity or offence was actually
European Communities by order of the Third Senate of
                                                                          commited in another Member State?
the Finanzgericht München (Finance Court, Munich) of
24 June 1998, received at the Court Registry on 10 August
1998, for a preliminary ruling in the case of Geenen
GmbH against Oberfinanzdirektion München (Principal
Revenue Office, Munich) on the following question:
Is Commission Regulation (EC) No 1509/97 of 30 July
1997 concerning the classification of certain goods in the           Appeal brought on 14 August 1998 by the Union Euro-
Combined Nomenclature (OJ L 204, 31.7.1997, p. 8) Ð                  peÂenne de l'Artisanat et des Petites et Moyennes Entrepri-
in this case rectangular wood blocks, 48 or 85 mm wide              ses (UEAPME) against the judgment delivered on 17 June
72 mm high, used in the construction of window frames,               1998 by the Fourth Chamber, Extended Composition, of
consisting of layers of wood glued together with the grain           the Court of First Instance of the European Communities
running parallel and with slightly rounded edges Ð                   in Case T-135/96 between the Union EuropeÂenne de
invalid?                                                             l'Artisanat et des Petites et Moyennes Entreprises
                                                                     (UEAPME), supported by ConfeÂdeÂration GeÂneÂrale des
                                                                     Petites et Moyennes Entreprises et du Patronat ReÂel
                                                                     (CGPME), Union Professionnelle Artisanale (UPA), Natio-
                                                                     naal Christelijk Middenstandsverbond (NCMV), Konink-
                                                                     lijke Vereniging MKB-Nederland, FeÂdeÂration des Artisans,
                                                                     Confederazione Generale Italiana del Artigianato (Confar-
Reference for a preliminary ruling by the Bundesfinanzhof            tigianato), Wirtschaftskammer Österreich, Bundesvereini-
by order of that court of 7 July 1998 in the case of Haupt-          gung der Fachverbände des Deutschen Handwerks eV
zollamt Neubrandenburg against Leszek Labis trading                  (BFH), and the Council of the European Union, supported
as Przedsiebiorstwo Transportowo-Handlowe Met-Trans',                     by the Commission of the European Communities
                            PL-Reda                                                        (Case C-316/98 P)
                       (Case C-310/98)
                                                                                             (98/C 312/12)
                         (98/C 312/11)
Reference has been made to the Court of Justice of the               An appeal against the judgment delivered on 17 June 1998
European Communities by order of the Bundesfinanzhof                 by the Fourth Chamber, Extended Composition, of the
(Federal Finance Court) of 7 July 1998, received at the              Court of First Instance of the European Communities in
Court Registry on 10 August 1998, for a preliminary                  Case T-135/96 between the Union EuropeÂenne de l'Artisa-
ruling in the case of Hauptzollamt Neubrandenburg                    nat et des Petites et Moyennes Entreprises (UEAPME),
against Leszek Labis trading as Przedsiebiorstwo                     supported by ConfeÂdeÂration GeÂneÂrale des Petites et
Transportowo-Handlowe Met-Trans', PL-Reda on the                    Moyennes Entreprises et du Patronat ReÂel (CGPME),
following questions:                                                 Union Professionnelle Artisanale (UPA), Nationaal Christe-