CELEX: C1995/299/15
Language: en
Date: 1995-11-11 00:00:00
Title: Appeal brought on 8 September 1995 by Odigitria AAE against the judgment delivered on 6 July 1995 by the First Chamber of the Court of First Instance of the European Communities in Case T-572/93 between Odigitria AAE and the Council of the European Union and the Commission of the European Communties (Case C-293/95 P)

11 . 11 . 95          EN                   Official Journal of the European Communities                                         No C 299/9
  Action brought on 1 September 1995 by the Kingdom                       them with retroactive effect, allowing it to fix
     of Spain against the Commission of the European                      unilaterally the period of validity of the obligation
                          Communities                                     incumbent on the Member States .
                       ( Case C-2 92/95 )
                         ( 95/C 299/ 14 )                             — Retroactivity of measures : the Commission itself
                                                                          acknowledges that there are no retroactive effects in
                                                                          respect of the application of appropriate measures
An action against the Commission of the European                          which have not been accepted by a Member State and
Communities was brought before the Court of Justice of the                which give rise to the procedure provided for in
                                                                          Article 93 ( 2 ).
European Communities on 1 September 1995 by the
Kingdom of Spain , represented by Alberto Navarro
Gonzalez, Director-General for Community Legal and                        In the view of the Spanish Government, there is an
Institutional Coordination , and by Miguel Bravo-Ferrer                   obligation to cooperate regularly and periodically with
Delgado, Abogado del Estado , of the State Legal                          which      unilateral      measures   as  onerous       as those
Department dealing with matters before the Court of                       conferring retroactive effect to the directives , which is
Justice , acting as Agents , with an address for service in               tantamount to their innovatory introduction, are not in
Luxembourg at the Spanish Embassy , 4-6 Boulevard                         keeping.
E. Servais .
                                                                      — Exceptional circumstances justifying retroactive effect
The applicant claims that the Court should :                              In the view of the Spanish Government, there can be no
                                                                          justification whatsoever for conferring retroactive effect
1 . annul the decision of the Commission of 6 July 1995                   to measures, provided for in Article 93 ( 1 ) of the Treaty,
     retroactively extending the decision of 23 December                  which have been taken unilaterally and with the
     1992 as from 1 January 1995 ;                                        intention of departing from the procedure and the
                                                                          system of regular, periodic cooperation provided for by
                                                                          that provision of the Treaty, in particular when it is
2 . order the Commission to pay the costs .                               contrary to the principle of the non-retroactivity of
                                                                          measures laid down in the case-law, specifically in
                                                                          respect of the legal basis relied upon by the Commission
Pleas in law and main arguments adduced in support:                        ( Article 93 ( 1 )), even where it is imposed by way of a
                                                                          decision adopted pursuant to the procedure laid down in
                                                                           Article 93 ( 2 ).
— Impossible to extend that which has expired : there may
     be an extension in respect of a legal instrument subject to
     a timelimit only before the expiry thereof.                      (') Application : OJ No C 139 , 18 . 5 . 1993 , p . 1 1 ;
                                                                          Judgment : O J No C 229 , 2 . 9 . 199.5 .
— Such retroactive extension in fact constitutes a means of
     reintroducing the directives without complying with the
     requirement of consulting the Member States : the fact
     that the original directives were removed from the legal
     order means that fresh introduction thereof would be
     innovatory . However, those ' new' directives should be
     understood as being ' appropriate measures' proposed             Appeal brought on 8 September 1995 by Odigitria AAE
     by the Commission within the meaning of Article 93 (1 )          against the judgment delivered on 6 July 1995 by the First
     of the Treaty . According to the judgment in Case                Chamber of the Court of First Instance of the European
     C- 135/93 ('), that Article imposes the 'obligation of           Communities in Case T-5 72/93 between Odigitria AAE and
     regular, periodic cooperation ' between the Commission           the Council of the European Union and the Commission of
     and the Member States .                                                              the European Communties
                                                                                                ( Case C-293/95 P)
     The Commission claims, in the sixth paragraph of its                                          ( 95/C 299/ 15 )
     decision of 6 July 1995 , that it complied with the
     abovementioned requirement by means of the                       An appeal against the judgment delivered on 6 July 1995 by
     multilateral meeting of 4 July 1995 . At that meeting the        the First Chamber of the Court of First Instance of the
     delegations had available to them the document which             European Communities in Case T-572/93 between
     was to be discussed only shortly before the meeting or           Odigitria AAE and the Council of the European Union and
     were unaware of the existence of the document which
                                                                      the Commission of the European Communities was brought
     was the basis of the meeting ( the abovementioned                before the Court of Justice of the European Communities on
     judgment ).                                                       8 September 19 95 by Odigitria AAE, represented by
                                                                      E. Marias , G. Stefanaki and A. Chatzitzani , of the Athens
     In the 'context of collaboration', the Commission may             Bar, with an address for service in Luxembourg at the
      not arrogate to itself the power to act unilaterally in          Chambers of E. Thill-Kamitaki , 15 Avenue du Bois,
      order to introduce certain measures or to reintroduce            L-1251 .
 ---pagebreak--- No C 299/ 10          EN                Official Journal of the European Communities                                      11 . 11 . 95
The appellant claims that the Court should :                       Notwithstanding the fact that the Court of First Instance
                                                                   recognized that the border dispute in question created a
— declare the appeal admissible ,                                  situation of uncertainty and that the Commission ought to
                                                                   have informed and was in a position to inform the operators
— set aside the jugdment of the Court of First Instance            in question of the dangers involved in fishing in the disputed
     appealed against,                                             waters , it misdirected itself in holding that the principles of
                                                                   legal certainty and the protection of legitimate expectations
— declare admissible the action brought at first instance          had not been infringed .
     and hold the respondents liable under the second
     paragraph of Article 215 of the EC Treaty ,                   VI .    Procedural and substantive defects in the Court of First
                                                                   Instance judgment appealed against as regards performance
— hold the respondents liable for restitution and order            of the Commission 's duty to provide diplomatic
     them to pay compensation in the amount of                     protection
     Dr 102 446,183 , together with interest as from the date
     of lodgement of the action with the Court of First            In the context of the urgent consultations provided for the
     Instance at the rate of 24 % per annum ,                      Commission ought to have sought the immediate creation of
                                                                   a special committee , ought to have required the immediate
— order the respondents to pay the whole of the legal costs ,      lifting of the unlawful arrest of the appellant's boat, and
     including the lawyers ' fees .                                should have submitted a request for the provision of a bank
                                                                   guarantee . Owing to the failure to order the production of
                                                                   proof,          the   Court of First Instance arrived
Pleas in law and main arguments adduced in support:                at the erroneous and unjustified assessment that the
                                                                   Commission had not infringed its duty to provide
I. Infringement of the general procedural principle that the       diplomatic protection for the appellant .
party making allegations and raising objections must bear
the burden of proof
Although it ought to have ordered the production of proof
in the presence of doubts, the Court of First Instance
accepted the respondents' objection , placed on the appellant      Reference for a preliminary ruling by the Court of Appeal
the burden of proving the Commission 's allegation ,               ( England ), by order of that court of 31 July 1995 , in the case
subsequently considering the appellant's negative reply to its     of The Queen against Commissioners of Customs and
questions to be erroneous and the Commission 's allegation         Excise , ex-parte: EMU Tabac Sari , The Man in Black Ltd
relevant to the outcome of the case to be proven, thereby          and John Anthony Cunningham , Intervener: Imperial
infringing the procedural principle of actore non probante                                       Tobacco Ltd
reus absolvitur, and providing grounds of appeal against the
contested decision .
                                                                                              ( Case C-296/95 )
                                                                                                ( 95 /C 299/ 16 )
II . Severe legal defects in the judgment
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Court of Appeal
By relying on hypothetical and doubtful grounds , the              ( England ) of 31 July 1995 , which was received at the Court
judgment of the Court of First Instance does not carry             Registry on 18 September 1995 , for a preliminary ruling in
conviction from a judicial point of view .
                                                                   the case of The Queen against Commissioners of Customs
                                                                   and Excise, ex-parte : EMU Tabac Sari , The Man in Black
III . Inadequate statement of reasons on which the                 Ltd and John Anthony Cunningham , Intervener: Imperial
judgment is based                                                  Tobacco Ltd, on the following questions :
The conjectured factual circumstances and the unclear               1 . Does Directive 92/ 12/EEC ( 1 ) and in particular Article 8
formulation of the reasoning provide grounds for appeal                 have the effect of precluding the charging of excise duty
against the judgment.                                                   on goods in Member State A in circumstances where :
IV . Erroneous assessment of the appellant's allegations at                 ( i ) the goods were acquired for the use of a private
                                                                                  individual in Member State A ;
first instance
                                                                          ( ii ) they were acquired in Member State B by an agent
The appellant alleges that the respondent Commission did                          acting on behalf of that private individual ;
not adopt the requisite protective measures based on the
principles of diligence and effective management and not                ( iii ) transportation of the goods from Member State B
that it did not take a position on the border dispute in                          to Member State A was arranged by the agent;
question .                                                                        and
V. Contradictions in the reasoning of the judgment                      ( iv ) the individual did not himself travel with the goods
appealed against                                                                  from Member State B to Member State A ?