CELEX: C2002/180/32
Language: en
Date: 2002-07-27 00:00:00
Title: Case C-233/02: Action brought on 21 June 2002 by French Republic against Commission of the European Communities

C 180/18                 EN                    Official Journal of the European Communities                                      27.7.2002
—     Order the French Republic to pay the costs.                         Action brought on 18 June 2002 by the Commission of
                                                                          the European Communities against the Grand Duchy of
                                                                                                      Luxembourg
Pleas in law and main arguments
                                                                                                    (Case C-228/02)
The period prescribed for transposition expired on 21 August                                        (2002/C 180/31)
2001.
(1) OJ L 101, 1.4.1998, p. 17.
                                                                          An action against The Grand Duchy of Luxembourg was
                                                                          brought before the Court of Justice of the European Communi-
                                                                          ties on 18 June 2002 by the Commission of the European
                                                                          Communities, represented by Denis Martin and Miguel França,
                                                                          acting as Agent, with an address for service in Luxembourg.
Action brought on 18 June 2002 by the Commission of                       The applicant claims that the Court should:
the European Communities against the Grand Duchy of
                             Luxembourg                                   —     Declare that, by failing to adopt and bring into force the
                                                                                laws, regulations and administrative provisions necessary
                           (Case C-227/02)                                      to comply with Directive 97/7/EC of the European
                                                                                Parliament and of the Council of 20 May 1997 on
                                                                                the protection of consumers in respect of distance
                           (2002/C 180/30)                                      contracts (1), or, in any event, by failing to communicate
                                                                                to the Commission the adoption of such provisions, the
                                                                                Grand Duchy of Luxembourg has failed to fulfil its
                                                                                obligations under that directive;
An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-              —     Order the Grand Duchy of Luxembourg to pay the costs.
ties on 18 June 2002 by the Commission of the European
Communities, represented by Denis Martin and Miguel França,
of its Legal Service, acting as Agent, with an address for service
in Luxembourg.
                                                                          Pleas in law and main arguments
The applicant claims that the Court should:
                                                                          The period prescribed for transposition expired on 4 June
1.    Declare that, by failing to bring into force the laws,              2000.
      regulations and administrative provisions needed in order
      to comply with Directive 97/55/EC (1) of the European
                                                                          (1) OJ 1997 L 144, p. 19.
      Parliament and of the Council of 6 October 1997
      amending Directive 84/450/EEC (2) concerning mislead-
      ing advertising so as to include comparative advertising,
      or, in any event, by failing to have informed the
      Commission of any such laws, regulations or administrat-
      ive provisions, the Grand Duchy of Luxembourg has
      failed to fulfil its obligations under that directive.
                                                                          Action brought on 21 June 2002 by French Republic
2.    Order the Grand Duchy of Luxembourg to pay the costs.
                                                                              against Commission of the European Communities
                                                                                                    (Case C-233/02)
Pleas in law and main arguments
                                                                                                    (2002/C 180/32)
The period prescribed for transposition expired on 23 April
2000.
                                                                          An action against the Commission of the European Communi-
(1) OJ L 290, 23.10.1997, p. 18.                                          ties was brought before the Court of Justice of the European
(2) OJ L 250, 19.9.1984, p. 17.                                           Communities on 21 June 2002 by the French Republic,
                                                                          represented by R. Abraham, G. de Bergues and P. Boussaroque,
                                                                          acting as Agents, with an address for service in Luxembourg.
 ---pagebreak--- 27.7.2002              EN                    Official Journal of the European Communities                                    C 180/19
The applicant claims that the Court should:                             Appeal brought on 24 June 2002 by the European
                                                                        Ombudsman against the judgment delivered on 10 April
                                                                        2002 by the Third Chamber of the Court of First Instance
                                                                        of the European Communities in Case T-209/00 between
—     annul the decision whereby the Commission concluded                        F. Lamberts and the European Ombudsman
      with the United States of America guidelines on legislative
      cooperation and transparency;
                                                                                                (Case C-234/02 P)
—     order the Commission to pay the costs.                                                     (2002/C 180/33)
                                                                        An appeal against the judgment delivered on 10 April 2002
                                                                        by the Third Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-209/00 between F. Lamberts
                                                                        and the European Ombudsman was brought before the Court
Pleas in law and main arguments                                         of Justice of the European Communities on 24 June 2002 by
                                                                        the European Ombudsman represented by J. Sant’Anna, with
                                                                        an address for service in Luxembourg.
—     Despite the careful language of the document attached to
      a memorandum which the Commission sent to Com-                    The appellant claims that the Court should:
      mittee 133, responsible for the common commercial
      policy, matters of substance lead the French Government
      to think that the guidelines are a genuine undertaking            —     annul the decision concerning the admissibility of the
      and place obligations on the parties. In those guidelines               action for damages in the judgment of the Court of First
      are very precisely set out the objectives pursued, the                  Instance delivered on 10 April 2002 in Case T-209/00
      scope of action and the measures to adopt in order to                   Frank Lamberts v European Ombudsman and thus declare
      achieve the objectives set. The fact that those guidelines              that that action is inadmissible.
      are not, of themselves, intended to modify the state of
      Community law cannot disguise the fact that they
      constitute, at the very least, an undertaking to cooperate
      on the part of the parties. Moreover, the provisions under
      Title VI of the guidelines, regarding monitoring of               Pleas in law and main arguments
      their implementation, clearly demonstrate the mandatory
      nature of the cooperation undertaking entered into by
      the parties. The existence of a surveillance mechanism is
      witness to the fact that the authors of the guidelines            Breach of Community law
      clearly sought to rule out the parties seeking refuge
      behind the voluntary nature of the cooperation to negate
      the undertaking to which they had subscribed.                     The decision at issue contravenes the constitutional scheme
                                                                        established by the Treaty, concerning the liability of the
                                                                        Ombudsman. In reviewing the legality of the inquiry procedure
      Since those guidelines must be seen as an international           conducted by the Ombudsman and of the decision closing the
      agreement within the meaning of Article 300 EC, the               case, the Court of First Instance overstepped the limits of
      measure whereby the Commission decided to enter into              judicial review of action by the Ombudsman. It carried out a
      it is vitiated by lack of competence and cannot but be            review of the Ombudsman’s exercise of his mandate, a review
      annulled.                                                         which the treaties assign to the European Parliament and
                                                                        which had already been carried out by that institution.
—     The guidelines are also contrary to the EC Treaty inas-           In declaring the case admissible the Court of First Instance
      much as they amount to a restriction of the sole power            failed to distinguish between actions for damages, on the one
      to propose which the Commission enjoys in the context             hand, and actions for annulment and actions for failure to act,
      of the Community legislative process and they affect the          on the other. The Ombudsman does not in the least deny that
      whole of the legislative process.                                 it is open to a citizen to bring an action for damages against
                                                                        the Ombudsman on the ground of the latter’s possibly
                                                                        wrongful action or behaviour causing damage to the former.
                                                                        However, whilst the Court of First Instance rightly found that
                                                                        the Treaty confers on citizens a right to submit complaints to
                                                                        the Ombudsman and to receive an answer from him, it was
                                                                        wrong to conclude that it could review the Ombudsman’s