CELEX: C2003/055/22
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-470/02 P: Appeal brought on 23 December 2002 by the European Broadcasting Union (EBU) against the judgment delivered on 8 October 2002 by the Second Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-185/00, T-216/00, T-299/00 and T-300/00 between Métropole télévision SA (M6), Antena 3 de Televisión, SA, Gestevisión Telecinco, SA, SIC-Sociedade Independente de Communicação, SA, supported by Deutsches SportFernsehen GmbH (DSF) and Reti Televisive Italiane Spa (RTI) and Commission of the European Communities, supported by European Broadcasting Union (EBU) and Radiotelevisión Española (RTVE)

8.3.2003                 EN                          Official Journal of the European Union                                           C 55/13
Pleas in law and main arguments                                              Appeal brought on 23 December 2002 by the European
                                                                             Broadcasting Union (EBU) against the judgment delivered
                                                                             on 8 October 2002 by the Second Chamber, Extended
                                                                             Composition, of the Court of First Instance of the Euro-
(Public storage        of olive oil, financial correction of                 pean Communities in Joined Cases T-185/00, T-216/00,
EUR 37 621,55)                                                               T-299/00 and T-300/00 between Métropole télévision SA
                                                                             (M6), Antena 3 de Televisión, SA, Gestevisión Telecinco,
                                                                             SA, SIC-Sociedade Independente de Communicação, SA,
The successful tenderer fulfilled its obligation to communicate              supported by Deutsches SportFernsehen GmbH (DSF)
its refusal to take over the lot, informing and notifying the                and Reti Televisive Italiane Spa (RTI) and Commission
Commission thereof in fulfilment of its obligation under                     of the European Communities, supported by European
Article 10 of Regulation No 561/99 ( 2).                                     Broadcasting Union (EBU) and Radiotelevisión Española
                                                                                                          (RTVE)
Secondly, return of the securities did not result in any loss to
the Community budget since the oil in question continued to                                         (Case C-470/02 P)
form part of the intervention stock, subject to that body of
rules and available to cover future operations, just as if refusal
had been communicated by the successful tenderer directly to                                          (2003/C 55/22)
the Commission.
                                                                             An appeal against the judgment delivered on 8 October 2002
(Areas harvested for pasture by the paying agency of Castile                 by the Second Chamber, Extended Composition, of the Court
and Leon, financial correction of EUR 1 229 951,00)                          of First Instance of the European Communities in Joined
                                                                             Cases T-185/00, T-216/00, T-299/00 and T-300/00 between
                                                                             Métropole télévision SA (M6), Antena 3 de Televisión, SA,
The corrections relating to the 1998 and 1999 harvests are                   Gestevisión Telecinco, SA, SIC-Sociedade Independente de
the result of applying 2 % to the result of dividing the total               Communicação, SA, supported by Deutsches SportFernsehen
declared area in cases where the discrepancies detected during               GmbH (DSF) and Reti Televisive Italiane Spa (RTI) and
administrative checks were in excess of 3 % or 2 hectares into               Commission of the European Communities, supported by
the total declared area.                                                     European Broadcasting Union (EBU) and Radiotelevisión
                                                                             Española (RTVE) was brought before the Court of Justice of
                                                                             the European Communities on 23 December 2002 by the
Spain does not agree with the Commission on the proposed                     European Broadcasting Union (EBU), represented by D. Wael-
financial correction because, first, Community legislation (3)               broeck and M. Johnsson, lawyers.
does not mean that the results of the administrative checks
should be included in the risk analysis when selecting the
checks to be made on the spot and, secondly, handling of the
applications for ‘area’ aid makes it impossible to carry out all             The appellant claims that the Court should:
the administrative checks before on-the-spot checks are carried
out.                                                                         —     set aside the judgment of the Court of First Instance of
                                                                                   the European Communities of 8 October 2002 in Joined
                                                                                   Cases T-185/00, T-216/00, T-299/00 and T-300/00,
Nonetheless, in the Autonomous Community of Castile and                            Métropole Télévision and Others v Commission;
Leon cases in which irregularities have been detected in
the administrative checks carried out the previous year are
systematically included as a risk criterion when selecting the               —     send the case back to the Court of First Instance so that it
sample of cases for on-the-spot checks.                                            may rule on the other pleas in law raised by the applicants
                                                                                   on which it has not yet ruled;
( 1) Commission Decision 2002/881/EC of 5 November 2002 exclud-              —     reserve the costs.
     ing from Community financing certain expenditure incurred by
     the Member States under the Guarantee Section of the European
     Agricultural Guidance and Guarantee Fund (EAGGF), OJ 2002 L
     306, p. 26.
( 2) Commission Regulation (EC) No 561/1999 of 15 March 1999 on              Pleas in law and main arguments
     the opening of a standing invitation to tender for the sale of olive
     oil held by the Spanish intervention agency, OJ L 69, 16.1.1999,
     p. 13.
( 3) Article 6(4) of Commission Regulation (EEC) No 3887/92 of               By basing its reasoning on arguments that were not raised by
     23 December 1992, OJ 1992 L 391, p. 36.                                 the applicants, the Court of First Instance has ruled ultra petita
                                                                             and infringed the rights of the defence of the EBU and of the
                                                                             Commission. The decisive element for the Court of First
                                                                             Instance is the application of the sub-licensing scheme for ‘live
 ---pagebreak--- C 55/14                EN                       Official Journal of the European Union                                         8.3.2003
broadcast of un-used Eurovision rights’, when such a ground             Action brought on 7 January 2003 by the Hellenic
was not argued before it. By so doing, the Court of First               Republic against the Community of the European Com-
Instance deprived the EBU of its right, as a party to the                                           munities
proceedings, to refute the points accepted by the Court. By
thus challenging a relatively marginal but no less essential
aspect such as the sub-licensing scheme rather than the                                           (Case C-5/03)
Eurovision system itself or the substance of the sub-licensing
scheme introduced at the behest of the Commission, the Court
of First Instance in fact requires the EBU to adjust that scheme                                 (2003/C 55/24)
in order to grant access to non-members to rights which the
latter have not asked for nor, doubtless, wish to ask for.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought on 7 January 2003 by the Hellenic Republic,
                                                                        represented by Stilianis Xharitakis and Eleni Svolopoulou,
                                                                        members of the State legal service, with an address for service
                                                                        in Luxembourg at the Greek embassy, 27 Rue Marie-Adélaïde.
Reference for a preliminary ruling by the Oberlandesge-
richt Düsseldorf by order of that Court of 5 December                   The applicant claims that the Court should:
2002 in the case of GAT, Gesellschaft für Antriebstechnik
mbH & Co. KG against LuK Lamellen und Kupplungsbau
                        Beteiligungs KG                                 —     Annul, or amend, Decision E/2002/4127 concerning
                                                                              the exclusion from Community financing of certain
                                                                              expenditure incurred by the Member States within the
                          (Case C-4/03)                                       context of the EAGGF — Guarantee section.
                         (2003/C 55/23)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                  The financial corrections called in question by the Hellenic
Düsseldorf (Higher Regional Court Düsseldorf) of 5 December             Republic concern fruit and vegetables and financing for beef
2002, received at the Court Registry on 6 January 2003, for a           cattle and goats and sheep.
preliminary ruling in the case of GAT, Gesellschaft für
Antriebstechnik mbH & Co. KG against LuK Lamellen und
Kupplungsbau Beteiligungs KG on the following question:
                                                                        As regards fruit and vegetables, the Hellenic Republic maintains
                                                                        that the 2 % correction imposed for the years 1997 to 2001
                                                                        concern non-existent or wholly isolated infringements of the
Is Article 16(4) of the Convention on Jurisdiction and the              Community rules and must be annulled for being adopted
Enforcement of Judgments in Civil and Commercial Matters                (a) on the basis of an erroneous interpretation and a misappli-
(‘the Brussels Convention’) to be interpreted as meaning that           cation of the provisions of Regulation No 729/70, as amended;
the exclusive jurisdiction conferred by that provision on the           (b) on the basis of inadequate reasoning; (c) following a
courts of the Contracting State in which the deposit or                 misappraisal of the factual circumstances; (d) on the basis of a
registration of a patent has been applied for, has taken place          manifest infringement of the limits of its margin of discretion,
or is under the terms of an international convention deemed             and (e) of the principle of proportionality.
to have taken place only applies if proceedings (with erga
omnes effect) are brought to declare the patent invalid or are
proceedings deemed to be concerned with the validity of
patents within the meaning of the aforementioned provision              As regards financing for beefcattle and goats and sheep, the
where the defendant in a patent infringement action or the              applicant maintains that the Commission did not provide
claimant in a declaratory action to establish that a patent is          adequate evidence of the degree of risk to which, in its
not infringed pleads that the patent is invalid or a nullity and        estimation, EAGGF Funds were exposed so as to ensure that
that there is also no patent infringement for that reason,              the amount of the corrections proposed was commensurate
irrespective of whether the court seised of the proceedings             with that risk. In its view the financial corrections in the
considers the plea to be substantiated or unsubstantiated and           amount of 10 % or 5 % imposed in those sectors should be set
of when the plea is raised during the course of the proceedings.        aside or else reduced to 2 %.