CELEX: C1998/184/10
Language: en
Date: 1998-06-13 00:00:00
Title: Appeal brought on 27 April 1998 by D.I.R. International Film S.r.l. and others against the judgment delivered on 19 February 1998 by the First Chamber of the Court of First Instance of the European Communities in Case T-85/95 between D.I.R. International Film S.r.l. and others and the Commission of the European Communities (Case C-164/98 P)

13.6.98               EN                   Official Journal of the European Communities                                    C 184/7
Appeal brought on 17 April 1998 by Anne-Marie Toller                  principle of legal certainty: the Court of First Instance
against the judgment delivered on 19 February 1998 by                 acted inconsistently in criticising the appellant for having
the Fourth Chamber of the Court of First Instance of the              failed timeously to contest the opinion of the Invalidity
European Communities in Case T-142/96 between Anne-                   Committee on which the appointing authority based its
Marie Toller and the Commission of the European                       decision of 1 July 1993 whilst at the same time
                          Communities                                 acknowledging that it was not until after those decisions
                      (Case C-149/98 P)                               had been taken that the various ailments giving rise to
                                                                      invalidity which are now alleged were diagnosed. It is also
                         (98/C 184/09)                                inconsistent to regard the opinion of the Invalidity
                                                                      Committee as definitive when it was also found that
                                                                      certain matters alleged by the appellant could not have
An appeal against the judgment delivered on 19 February
                                                                      been diagnosed at the time when the Invalidity Committee
1998 by the Fourth Chamber of the Court of First
                                                                      gave its opinion on the appellant's condition, despite the
Instance of the European Communities in Case T-142/96
                                                                      fact that the ailment nevertheless existed. Moreover, it is
between Anne-Marie Toller and the Commission of the
                                                                      also inconsistent and incorrect to decide that, because
European Communities was brought before the Court of
                                                                      certain matters which made it possible, following the
Justice of the European Communities on 17 April 1998 by
                                                                      appellant's removal from her post, objectively to identify
Anne-Marie Toller, represented by Benoît Lombert and
                                                                      ailments giving rise to invalidity on her part, were brought
Eric Boigelot, of the Brussels Bar, with an address for
                                                                      to the attention of the Invalidity Committee in good time,
service in Luxembourg at the Chambers of Louis Schiltz, 2
                                                                      that Committee necessarily took those ailments into
Rue du Fort Rheinsheim.
                                                                      account, and to find its medical opinion on those matters
                                                                      definitive.
The appellant claims that the Court should:
Ð declare the appeal admissible and well founded;                     Lastly, the considerations of the Court of First Instance
                                                                      regarding the correct classification to be applied to the
Ð consequently:                                                       appellant's request of 15 September 1995 are defective in
                                                                      fact and in law. It is wrong in law to maintain that that
    (a) set aside the judgment appealed against;                      request can be regarded as a complaint, even though that
                                                                      was the classification which both the appellant and the
    (b) itself adjudicate on the dispute and grant the                respondent purported to apply to the act. Provided that an
          appellant's initial application;                            application is not made in an attempt artificially to start
                                                                      time running again following the expiry of a time-limit for
                                                                      lodging a complaint, it is legitimately and validly open to
Ð annul the decision of 16 November 1995, notified to
                                                                      any official to have recourse to that procedure. That is a
    the appellant on 20 November 1995, expressly
                                                                      fortiori the position in the present case, since the request
    rejecting the request made by the appellant on
                                                                      for reconsideration of the decision of 1 July 1993 was not
    15 September 1995 pursuant to Article 90(1) of the
                                                                      made with a view to having that decision annulled for
    Staff Regulations, whereby she asked the appointing
                                                                      irregularity but was based on matters which could not
    authority to reconsider the decision of 1 July 1993,
                                                                      have served as the basis of a complaint against that
    notified by DG IX, acting as the appointing authority,
                                                                      decision, since the appellant was not aware of them at the
    which imposed on the appellant the disciplinary
                                                                      time.
    measure of removal from post without reduction or
    withdrawal of entitlement to a retirement pension and
    stated that, with immediate effect, her services were
    no longer required, the said decision taking effect from
    1 October 1993;
Ð annul the decision implicitly rejecting the complaint
    submitted pursuant to Article 90(1) of the Staff                  Appeal brought on 27 April 1998 by D.I.R. International
    Regulations, dated 13 February 1996;                              Film S.r.l. and others against the judgment delivered on
                                                                      19 February 1998 by the First Chamber of the Court
Ð consequently, rule that the decision of 1 July 1993                 of First Instance of the European Communities in Case
    referred to above is ineffective and order that it be             T-85/95 between D.I.R. International Film S.r.l. and
    withdrawn by decision of the appointing authority;                 others and the Commission of the European Communities
                                                                                           (Case C-164/98 P)
Ð order the Commission to pay all the costs incurred
    both in the proceedings at first instance and in the                                      (98/C 184/10)
    present appeal.
Pleas in law and main arguments adduced in support:                   An appeal against the judgment delivered on 19 February
                                                                      1998 by the First Chamber of the Court of First Instance
Breach of Community law, in particular of Article 33 of               of the European Communities in case T-85/95 (1) between
the Statute of the Court of Justice and of the general                D.I.R. International Film S.r.l. and others and the
 ---pagebreak--- C 184/8               EN                Official Journal of the European Communities                                       13.6.98
Commission of the European Communities, was brought                     (b) was entitled to substitute its own reasoning for
before the Court of Justice of the European Communities                       one of the two reasons stated in the contested
on 27 April 1998 by D.I.R. International Film S.r.l.                          decision, the Court of First Instance's reasoning
(D.I.R.'), of Via Leonardo Fibonacci 43, 00166 Rome,                         was in any event irreconcilable with Article 85 of
Italy, Nostradamus Enterprises Limited (Nostradamus                          the EC Treaty, read in conjunction with Council
Enterprises'), of The Glassworks, 3Ð4 Ashland Place,                          Regulation 17/62.
London W1M 3JH, United Kingdom, Union P.N. S.r.l.
(Union'), of Via Margutta 33, 00187 Rome, Italy, United           (1) OJ C 137, 3.6.1995, p. 32.
International Pictures B.V. (UIP'), of Rijswijkstraat 175,        (2) Council Regulation 17/62 of 6 February 1962, First
1062 EV Amsterdam, Netherlands, United International                   Regulation implementing Articles 85 and 86 of the Treaty (OJ
Pictures AB (UIP AB'), of Hornsbruksgatan 19, 10274                   13, 21.2.1962, p. 204 [SE SER1 (59Ð62) p. 87]).
                                                                   (3) Council Decision 90/685/EEC of 21 December 1990
Stockholm, Sweden, United International Pictures APS
                                                                       concerning the implementation of an action programme to
(UIP APS'), of Hauchsvej 13, 1825 Frederiksberg C,                    promote the development of the European audiovisual
Copenhagen, Denmark, United International Pictures A/S                 industry (Media) (1991 to 1995) (OJ L 380, 31.12.1990,
(UIP A/S'), of Hegdehaugsveien 27, 0352 Oslo 3,                       p. 37).
Norway, United International Pictures EPE (UIP EPE'), of
4 Gambetta Street, Athens Gr. 106 78, Greece, United
International Pictures OY (UIP OY'), of Kaisaniemenkatu
1 C, 00100 Helsinki, Finland and United International
Pictures y Cia SRC (UIP y Cia SRC'), of Plaza del Callao
4Ð6o, Madrid 28013, Spain, represented by Alexandre                          Removal from the register of C-331/97 (1)
Vandencasteele and Olivier Speltdoorn, of the Brussels                                      (98/C 184/11)
Bar, of Liedekerke SimeÂon Wessing Houthoff, Brussels,
with an address for service in Luxembourg at the
Chambers of Ernest Arendt, 8Ð10 Rue Mathias Hardt.                 By order of 25 March 1998 the President of the Court of
                                                                   Justice of the European Communities has ordered the
                                                                   removal from the register of Case C-331/97: Commission
The Appellant claims that the Court should:                        of the European Communities v. Federal Republic of
                                                                   Germany.
Set aside the contested judgment and accordingly
                                                                   (1) OJ C 331, 1.11.1997.
Ð give final judgment on the case, grant the Appellants
     the order sought before the Court of First Instance and
     order the Commission to pay the costs of the
     proceedings both before the Court of First Instance
     and the Court of Justice;
                                                                             Removal from the register of C-393/97 (1)
Ð or, in the alternative, refer the case back to the Court                                  (98/C 184/12)
     of First Instance for judgment and reserve the costs.
                                                                   By order of 25 March 1998 the President of the Court of
Pleas in law and main arguments adduced in support:                Justice of the European Communities has ordered the
                                                                   removal from the register of Case C-393/97 (reference
The Appellants rely on three grounds of appeal based on            for a preliminary ruling from the Verwaltungsgericht
an infringement of Community law by the Court of First             Halle): Lidl-Fleischwerk Handelshof GmbH & Co. KG v.
Instance, in particular of Articles 85, 173 and 190 of the         Landkreis Burgenlandkreis.
EC Treaty, of Council Regulation 17/62 (2), of Council
Decision 90/685/EEC (3), of the EFDO Guidelines and of             (1) OJ C 41, 7.2.1998.
the general principles of legal certainty and legitimate
expectations.
The Court of First Instance:
                                                                             Removal from the register of C-302/96 (1)
1) wrongly considered that the Commission enjoyed                                           (98/C 184/13)
     discretionary power to assess the eligibility of EFDO
     funding applications;
                                                                   By order of 26 March 1998 the President of the Court of
                                                                   Justice of the European Communities has ordered the
2) illegally substituted its own reasoning for one of the          removal from the register of Case C-302/96: Commission
     two reasons stated in the contested decision, and;            of the European Communities, supported by Kingdom of
                                                                   Great Britain and Northern Ireland, v. Federal Republic of
3) even if the Court of First Instance                             Germany.
     (a) rightly considered that the Commission enjoyed            (1) OJ C 336, 9.11.1996.
          discretionary power to assess the eligibility of
          EFDO funding applications and