CELEX: 62003TO0310
Language: en
Date: 2004-09-21 00:00:00
Title: Order of the President of the Court of First Instance of 21  September  2004. # Kreuzer Medien GmbH v European Parliament and Council of the European Union. # Application for interim relief - Suspension of operation of a measure - Admissibility of an application brought by an intervener. # Case T-310/03 R.

Case T-310/03 R
      Kreuzer Medien GmbH
      v
      European Parliament and Council of the European Union
      (Application for interim measures – Suspension of operation of a measure – Admissibility of an application brought by an intervener)
      Order of the President of the Court of First Instance, 21 September 2004 
      Summary of the Order
      Applications for interim measures – Suspension of operation of a measure – Conditions of admissibility – Application by the
            intervener – Intervener not having challenged the measure in question – Inadmissibility 
      (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1), first subpara.)
      It is clear from the first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance that any
         application under Article 242 EC for the suspension of a measure taken by an institution is admissible only if the applicant
         has challenged that measure in an action before the Court of First Instance.
      
      The intervener in the main proceedings is therefore not entitled to apply for suspension of the contested measure when it
         has not itself challenged that measure.
      
      Such an application is inadmissible even if based on Article 243 EC, since it does not seek a measure that is any different
         from what is provided for in Article 242 EC. The intervener cannot circumvent the rules contained in that provision of the
         Rules of Procedure by artificially making its application subject to other rules contained in the Rules of Procedure.
      
      (see paras 18, 20-21)
ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE 
      21 September 2004 (*)
      
      (Application for interim measures – Suspension of operation of a measure – Admissibility of an application brought by an intervener)
      In Case T-310/03 R,
      Kreuzer Medien GmbH, established in Leipzig (Germany), represented by M. Lenz, lawyer,
      
      applicant,
      supported by
      Falstaff Verlags GmbH, established in Klosterneuburg (Austria), represented by W.-G. Schärf, lawyer,
      
      intervener,
      v
      European Parliament, represented by E. Waldherr and U. Rösslein, acting as Agents, with an address for service in Luxembourg,
      
      and
      Council of the European Union, represented by E. Karlsson, acting as Agent,
      
      defendants,
      supported by
      Commission of the European Communities, represented by M.-J. Jonczy, L. Pignataro-Nolin and F. Hoffmeister, acting as Agents, with an address for service in Luxembourg,
         
      
      by
      Kingdom of Spain, represented by L. Fraguas Gadea, acting as Agent, with an address for service in Luxembourg,
      
      and by
      Republic of Finland, represented by A. Guimaraes-Purokoski and T. Pynnä, acting as Agents, with an address for service in Luxembourg,
      
      interveners,
      APPLICATION, submitted by Falstaff Verlags GmbH under Article 243 EC, for an order suspending the operation of Directive 2003/33/EC
         of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative
         provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 2003 L 152, p. 16), 
      
       
      THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
      makes the following
      Order
       Facts and procedure
      1       By application lodged at the Registry of the Court of First Instance on 11 September 2003, the applicant brought an action
         seeking annulment of Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation
         of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of
         tobacco products (OJ 2003 L 152, p. 16, ‘the contested directive’). 
      
      2       By order of 12 March 2004, the President of the First Chamber granted the Commission, the Kingdom of Spain and the Republic
         of Finland leave to intervene in support of the forms of order sought by the defendants. It also granted the company Falstaff
         Verlags leave to intervene in support of the forms of order sought by the applicant. 
      
      3       By a separate document lodged at the Court Registry on 10 June 2004, Falstaff Verlags GmbH (‘the intervening company’) made
         an application under Article 243 EC seeking an order ‘suspending the effects’ of the contested directive.
      
      4       The Council and the European Parliament lodged their observations on the application for interim relief on 29 and 30 June
         2004, respectively. The Commission lodged its observations on that application on 1 July 2004. The applicant and the Kingdom
         of Spain lodged their observations on 2 July 2004.
      
       Law
      5        Under the provisions of Article 242 and 243 EC in conjunction with Article 225(1) EC the Court of First Instance may, if
         it considers the circumstances so require, order that operation of a contested act be suspended or prescribe any necessary
         interim measures.
      
      6        In the light of the documents submitted, the President considers that he has sufficient information to be able to rule on
         the present application for interim measures and that it is not necessary to hear oral argument from the parties before doing
         so.
      
      7       The President of the Court considers that in the present case it is necessary to consider first of all the admissibility of
         the application.
      
       Arguments of the parties
      8       The intervening company contends that its application to suspend the effects of the contested directive, lodged under Article
         243 EC, is admissible.
      
      9       It points out that all parties to the proceedings before the Court have the right to make such an application in order to
         protect their interests. Referring to the judgment in Case C-244/91 P Pincherle v Commission [1993] ECR I-6965, paragraph 14 et seq., it claims that an intervener must be considered to be a ‘party to the proceedings’
         and must therefore be entitled to make an application under Article 243 EC. The intervening company, having been granted leave
         to intervene in the main proceedings is therefore permitted to make the present application.
      
      10     The Council, the European Parliament, the Commission and the Kingdom of Spain consider that this application for interim relief
         is inadmissible.
      
      11     In the views of the Council and the European Parliament, an intervener cannot apply for either suspension of operation, as
         referred to in Article 242 EC, or the prescribing of other interim measures, as referred to in Article 243 EC. To grant that
         right to an intervener would be contrary to the provisions of the fourth paragraph of Article 40 of the Statute of the Court
         of Justice and Article 116(3) of the Rules of Procedure of the Court of First Instance, which provide that interveners may
         only support the form of order sought by the party in whose support they are intervening. It is also difficult to reconcile
         allowing an intervener to make an application for interim relief with other provisions of the Rules of Procedure, which apply
         expressly to interveners where they are involved (see, in particular, the third subparagraph of Article 87(4), Article 115,
         Article 116 and Article 134(2) of the Rules of Procedure).
      
      12     The Commission claims that, under Article 104(1) of the Rules of Procedure, a distinction must be drawn between, on the one
         hand, an application for suspension of operation under Article 242 EC, which can only be made by the applicant in the main
         proceedings, and, on the other hand, an application for an order prescribing other interim measures under Article 243 EC,
         which may be lodged by any party to the main proceedings. In the present case, the application for suspension under Article
         243 EC is in reality an application for suspension of operation within the meaning of Article 242 EC. As the intervening company
         did not bring the main action against the contested directive its application should be dismissed as inadmissible, under the
         first subparagraph of Article 104(1) of the Rules of Procedure. 
      
      13     The Kingdom of Spain contends, in particular, that in the same way as it is not entitled to raise an objection to admissibility
         (see Case T-174/95 Svenska Journalistförbundet v Council [1998] ECR II-2289, paragraphs 77 to 79), an intervener may not bring an application for suspension of the operation of an
         act.
      
      14     The applicant has not raised any objections to the admissibility of the present application for interim relief.
       Assessment by the President of the Court
      15     The first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance states that ‘[a]n application
         to suspend the operation of any measure adopted by an institution, made pursuant to [Article 242 EC] shall be admissible only
         if the applicant is challenging that measure in proceedings before the Court of First Instance’. 
      
      16     Under the second subparagraph of Article 104(1) of the Rules of Procedure, ‘[a]n application for the adoption of any other
         interim measure referred to in [Article 243 EC] shall be admissible only if it is made by a party to a case before the Court
         of First Instance and refers to that case’. 
      
      17     In the present case, the intervening company has brought an ‘application to suspend the operation of a measure made pursuant
         to Article 243 EC’. By that application it is seeking to obtain from the President of the Court suspension ‘of the effects
         of the [contested] directive both so far as it is concerned and so far as the applicant is concerned until [the Court of First
         Instance] has ruled on the merits of the case’. 
      
      18     Although brought under Article 243 EC, that application does not seek to obtain a measure other than that provided for in
         Article 242 EC. The appropriate legal basis for the present application is therefore Article 242 EC. In that regard, it should
         be stated that a party should not be permitted to circumvent the rules contained in a provision of the Rules of Procedure
         by artificially making it subject to other rules contained in the Rules of Procedure.
      
      19     The admissibility of the present application must therefore be assessed in the light of the first subparagraph of Article
         104(1) of the Rules of Procedure.
      
      20     According to that provision an application to suspend the operation of any measure of an institution is to be admissible only
         if the applicant is challenging that measure in proceedings before the Court of First Instance. 
      
      21     In the present case, it is not disputed that the intervening company has not challenged the contested directive in an action
         before the Court of First Instance. In those circumstances, it is not entitled to make its application.
      
      22     The present application must therefore be dismissed as inadmissible.
      On those grounds,
      THE PRESIDENT OF THE COURT OF FIRST INSTANCE
      hereby orders:
      1.      The application for interim measures is dismissed.
      2.      The costs are reserved. 
      Done at Luxembourg, 21 September 2004.
      
               H. Jung 
            
             
            
                     B. Vesterdorf
            
         
               Registrar 
            
             
            
                     President
            
         * Language of the case: German.