CELEX: C1995/268/36
Language: en
Date: 1995-10-14 00:00:00
Title: Action brought on 18 August 1995 by the Commission of the European Communities against the Italian Republic (Case C-280/95)

No C 268/ 16             EN                  Official Journal of the European Communities                                    14 . 10 . 95
European Communities in Joined Cases T-462/93 ,                         Brussels Bar, with an address for service in Luxembourg at
T-464/93 and T-470/93 between Erika Lenz and Volker                     the Chambers of Marc Loesch, 11 rue Goethe .
Lenz and the Commission of the European Communities
was brought before the Court of Justice of the European                 The appellant claims that the Court should:
Communities on 14 August 1995 by Erika Lenz and Volker
Lenz, represented by Jiirgen Schlacht, Rechtsanwalt, of                 — set aside the judgment of the Second Chamber of the
Schliiterstrafêe 22 III, D-20146 Hamburg.                                   Court of First Instance of the European Communities of
                                                                            8 June 1995 in Case T-459/93 between Siemens SA,
The appellants claim that the Court should :                                supported by the Federal Republic of Germany, and the
                                                                            Commission of the European Communities,
— set aside the order of the Fourth Chamber of the Court of
      First Instance of 14 June 1995 in Joined Cases T-462/93 ,         — consequently, annul Articles 1 ( c ) and 2 of Commission
      T-464/93 and T-470/93 , disqualify Judge K. Lenaerts                  Decision 92/483/EEC of 24 June 1992 concerning aid
      from sitting as the President of the Fourth Chamber of                provided by the Brussels Regional Authorities ( Belgium )
      the Court of First Instance and, in addition, decide Cases            in favour of the activities of Siemens SA in the
      T-462/93 , T-464/93 and T-470/93 in accordance with                   data-processing and telecommunications sectors,
      the forms of order sought in each of those cases (*).
                                                                        — order the Commission to pay the costs of the present
                                                                            proceedings and of the proceedings before the Court of
Pleas in law and arguments adduced in support:                              First Instance in Case T-459/93 .
— The contested order of the Court of First Instance was
      made in breach of the Rules of Procedure . Under                  Pleas in law and main arguments adduced in support:
      Article 16 of the Protocol on the Statute of the Court of
      Justice of the European Communities, the Court of                 Errors of law, in particular the fact that the Court of First
                                                                        Instance examined whether the contested aid constituted
      Justice should have decided to disqualify Judge Lenaerts
      and to exclude him from taking part in the contested              investment aid within the meaning applied to that term in
      order, by reason of his extensive involvement in the              Community law, instead of verifiying, as it should have
      earlier proceedings concerning the same matter.                   done, whether such aid fell within the substantive scope of
                                                                        the Belgian Law of 1959 ' introducing and coordinating
— The contested order wrongly dismissed the actions on                  measures to encourage economic expansion and the
      the ground that they were time-barred. Contrary to the            creation of new industries', as construed in Belgian law and
      assumption made in the judgment, no administrative                as approved by the Commission .
      procedure took place pursuant to Articles 90 or 9 1 of the
      Staff Regulations in relation to the applicants' claims .
      Such an administrative procedure was not required,
      since the appellants, who are not officials, are asserting
      claims in tort which, although connected with the social          Action brought on 18 August 1995 by the Commission of
      welfare of Community officials, are not subject to the              the European Communities against the Italian Republic
      rules of procedure governing claims by officials.
                                                                                                ( Case C-280/95 )
i 1 ) OJ No C 33 , 5 . 2 . 1993 , p . 11 ;                                                        ( 95/C 268/36 )
      OJ No C 54 , 25 . 2 . 1993 , p . 4 ;
      OJ No C 139 , 18 . 5 . 1993 , p . 10,                              An action against the Italian Republic was brought before
                                                                         the Court of Justice of the European Communities on
                                                                         18 August 1995 by the Commission of the European
                                                                         Communities, represented by Antonio Aresu and Anders C.
                                                                        Jessen, of its Legal Service, acting as Agents, with an address
Appeal brought on 16 August 1995 by Siemens SA against                   for service in Luxembourg at the office of Carlos Gômez de
the judgment delivered on 8 June 1995 by the Second                      la Cruz, Wagner Centre , Kirchberg.
Chamber of the Court of First Instance of the European
Communities in Case T-459/93 between Siemens SA,                         The applicant claims that the Court should :
supported by the Federal Republic of Germany, and the
           Commission of the European Communities                        — declare that the Italian Republic has failed to fulfil its
                                                                             obligations under the EC Treaty, by failing to adopt the
                          ( Case C-278/95 P )                                measures necessary to comply with Commission
                             ( 95/C 268/35 )                                 Decision 93/496/EEC of 9 June 1993 concerning State
                                                                             aid procedure C 32/92 (ex NN 67/92 ) — Italy C ) (tax
 An appeal against the judgment delivered on 8 June 1995 by                  credit for professional road hauliers ) and in particular by
 the Second Chamber of the Court of First Instance of the                    failing to recover, with effect from the tax year 1992, the
 European Communities in Case T-459/93 between Siemens                       aid unlawfully introduced by the Ministerial Decree of
 SA, supported by the Federal Republic of Germany, and the                   28 January 1992 in favour of professional road hauliers
 Commission of the European Communities was brought                          in Italy in the form of a tax credit on income tax or on
 before the Court of Justice of the European Communities on                  municipal tax or on VAT,
 16 August 1995 by Siemens SA, represented by Michel
 Waelbroeck, Jules Stuyck and Olivier Speltdoorn, of the                 — order the Italian Republic to pay the costs .
 ---pagebreak--- 14 . 10 . 95          EN                   Official Journal of the European Communities                                 No C 268/ 17
Pleas in law and main arguments adduced in support:                   — in the alternative, should the Court of First Instance
                                                                          interpret the Commission's letters of 21 January 1993
The Italian Republic has not taken any steps as yet — that is             and 4 February 1994 as expressing and repeating a
to say, two years after the adoption of Decision 93/496/EEC               decision not to pursue Mr Guérin's complaint, annul the
— to comply with the Commission's repeated calls to                       decision contained in those letters pursuant to
execute that Decision . It has merely apprised the                        Article 173 of the Treaty,
Commission of the legal and practical difficulties involved in
the implementation of the Decision and has failed to take             — order the Commission to pay the costs .
any steps to recover the aid or to make any proposal to the
Commission regarding detailed alternative arrangements
for implementing the Decision, under which the alleged                Pleas in law and main arguments adduced in support:
difficulties would be overcome . In the light of those
considerations, it must be concluded that the Italian                 There were defects in the procedure which are detrimental
Republic cannot plead impossibility of performance in                 to the appellant's interests in so far as the Court of First
relation to the decision in question.                                 Instance failed entirely:
(>) OJ No L 233 , 16 . 9 . 1993 , p . 10 .                            — to analyse the exchange of letters between June and
                                                                          August 1994 enabling it to rule on the facts and to
                                                                          address the pleas and submissions of the appellant
                                                                          relating thereto,
                                                                      — to draw the consequences from the Commission's
                                                                          refusal to produce evidence to justify the procedure
                                                                          resorted to by the Commission to more or less abstain
Appeal brought on 24 August 1995 by Guérin Automobiles                    from acting ( holding letter ).
against the judgment delivered on 27 June 1995 by the
Third Chamber ( extended composition ) of the Court of
First Instance of the European Communities in Case                    The Court of First Instance made an error of law in
T-l 86/94 between Guérin Automobiles and Commission of                determining the nature of the letter of 13 June 1994 as an
                 the European Communities                             act, an error aggravated by the failure to compare it with the
                       Case C-282/95 P                                subsequent correspondence from Guérin Automobiles,
                                                                      which was not considered at all . The Court was obliged to
                           ( 95/C 268/37 )                            accept the Commission's own description of it — a holding
                                                                      letter — which, according to the settled case-law of the
An appeal against the judgment delivered by the Third                 Court of Justice relating to acts, means that it cannot be a
Chamber ( extended composition ) of the Court of First                'definition of position' terminating the failure to act.
Instance of the European Communities in Case T-l 86/94
between Guérin Automobiles and Commission of the                      The Court of First Instance could not have based its decision
European Communities was brought before the Court of                  on the information gathered by the Commission and relied
Justice of the European Communities on 24 August 1995 by              upon by the latter to justify its reply when there was no trace
Guérin Automobiles , represented by Jean-Claude                       of that information in the case-file .
Fourgoux, of the Paris and Brussels Bars , with an address for
service at the Chambers of Pierrot Schiltz, 4 rue Béatrix de
Bourbon .                                                             The Court of First Instance could not fail to recognize the
                                                                      breach of the principle audi et alteram partem and admit
                                                                      that the Commission could have referred in its letter of
The appellant claims that the Court should :                          13 June 1994 to an alleged procedure, alleged to be similar,
                                                                      the alleged existence of which justified the failure to deal
— annul the judgment of the Court of First Instance (Third            with the Guérin Automobiles case and concerning which
     Chamber, extended composition ) of the European                  Commission staff have refused to produce any evidence
     Communities of 27 June 1 995 in Case T-l 86/94 Guérin            whatsoever in court .
    Automobiles v . Commission of the European
     Communities , save as regards costs,
                                                                      The Court of First Instance could not, without breaching the
                                                                      general principle of the right of access to the courts, state
and, ruling on the substance of the action,                           that the letter of 13 June 1994 had the effect in this instance
                                                                      of depriving the applicant of any legal remedy.
having regard to the arguments submitted at first
instance ,
                                                                      Since it was impossible to contest the principle of the right of
— declare, pursuant to Article 175 of the Treaty, that the            access to the courts, the Court of First Instance wrongly held
     Commission has failed to take a decision with regard to          that the appellant was henceforth entitled to obtain a
     the complainant, whereas the latter had requested it in          definitive Commission decision which was capable of ' being
     due time to do so ,                                              the subject-matter of an action for annulment', when there is