CELEX: C1999/048/25
Language: en
Date: 1999-02-20 00:00:00
Title: Appeal brought on 8 December 1998 by International Express Carriers Conference (IECC) against the judgment delivered on 16 September 1998 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in cases T-133/95 and T-204/95 between International Express Carriers Conference (IECC) and the Commission of the European Communities, supported by, in cases T-133/95 and T-204/95, the United Kingdom of Great Britain and Northern Ireland, Deutsche Post AG and The Post Office and, in case T-133/95, La Poste (Case C-450/98 P)

20.2.1999            EN                   Official Journal of the European Communities                                    C 48/15
3. The IEEC submits that the Court of First Instance                 9. The applicant submits that the Court of First Instance
    commits an error of law in stating that the mere                      has committed an error in law and has violated
    assumption that in the future the practices complained                Article 62 of its Rules of Procedure in refusing to take
    of might be amended is sufficient for the Commission                  account of the documents submitted by the applicant
    to ensure that the general objective laid down by                     on the sole ground that they postdate the contested
    Article 3(g) of the EC Treaty is achieved.                            decision.
                                                                     (1) OJ C 189, 22.7.1995, p. 17.
    The Court of First Instance has mistaken the exact
                                                                     (2) Council Regulation No 17/62 of 6 February 1962 (First
    scope of the duty which Articles 85 and 155 of the EC                Regulation implementing Articles 85 and 86 of the Treaty)
    Treaty impose on the Commission in order to ensure a                 (OJ, English Special Edition 1959Ð1962, p. 87).
    proper application of Article 85 in combination with
    Article 3(g) of the Treaty.
4. Violation of the principle whereby the legality of a
    contested decision can only be assessed in the light of
    a legal and factual situation existing at the time of
    said decision.                                                   Appeal brought on 8 December 1998 by International
                                                                     Express Carriers Conference (IECC) against the judgment
                                                                     delivered on 16 September 1998 by the Third Chamber,
5. The Appellant submits that:                                       Extended Composition, of the Court of First Instance of
                                                                     the European Communities in cases T-133/95 (1) and
                                                                     T-204/95 (2) between International Express Carriers
    Ð the judgment contains contradictions in its                    Conference (IECC) and the Commission of the European
        statement of reasons which are equivalent to an              Communities, supported by, in cases T-133/95 and
        abuse of statement of reasons;                               T-204/95, the United Kingdom of Great Britain and
                                                                     Northern Ireland, Deutsche Post AG and The Post Office
    Ð in the event that the application of the concept of                            and, in case T-133/95, La Poste
        Community interest is found by the Court to                                         (Case C-450/98 P)
        necessarily include an assessment of the Automec II
        criteria, the Appellant submits that the Court of                                     (1999/C 48/25)
        First Instance failed to motivate why it considered
        that these criteria were fulfilled;
                                                                     An appeal against the judgment delivered on 16 September
    Ð the Court of First Instance infringes its obligation           1998 by the Third Chamber, Extended Composition, of
        of motivation by failing to state the reasons why            the Court of First Instance of the European Communities
        the new factors on which the applicant relied in             in cases T-133/95 and T-204/95 between International
        order to request the reopening of the oral                   Express Carriers Conference (IECC) and the Commission
        procedure did not contain any element decisive for           of the European Communities, supported by, in cases
        the outcome of the litigation within the meaning             T-133/95 and T-204/95, the United Kingdom of Great
        of Article 62 of the Rules of Procedure of the               Britain and Northern Ireland, Deutsche Post AG and The
        Court of First Instance.                                     Post Office and, in case T-133/95, La Poste, was brought
                                                                     before the Court of Justice of the European Communities
                                                                     on 8 December 1998 by International Express Carriers
6. The IECC contends that the reasoning of the Court of              Conference (IECC), a professional organisation established
    First Instance aiming at setting aside the plea of               under Swiss law, having its registered office in Geneva
    discrimination filed by the applicant is founded on an           (Switzerland), represented by Eric Morgan de Rivery, of
    error of law in its interpretation of the concept of             the Paris Bar, Jacques Derenne, of the Paris and Brussels
    discrimination.                                                  Bars and Monica Cunningham, of the Brussels Bar, with
                                                                     an address for service in Luxembourg at the Chambers of
                                                                     Alex Schmitt, Bonn & Schmitt, 7 Val Ste Croix.
7. The IECC submits that the Court of First Instance, in
    accepting to weigh the violation of the draft REIMS
    Agreement against its claimed procompetitive effect
    outside the context of Article 85(3) of the EC Treaty,           The Appellant claims that the Court should:
    thereby departing from a long and consistent body of
    case-law, has violated the principle of legal certainty.
                                                                     Ð annul the judgment of the Court of First Instance of
                                                                          the European Communities (Third Chamber, Extended
8. The Court of First Instance's refusal to appraise                      Composition) of 16 September 1998 in joined cases
    globally all the relevant and consistent factors raised               T-133/95 and T-204/95, International Express Carriers
    by the applicant and its failure to examine many of                   Conference (IECC) v. Commission of the European
    these factors constitutes an error of law in the                      Communities, in so far as it concerns case T-204/95
    application of the legal concept of misuse of powers.                 and points 78 to 83 of case T-133/95;
 ---pagebreak--- C 48/16                  EN                         Official Journal of the European Communities                                           20.2.1999
Ð itself rule on case T-204/95 pursuant to Article 54 of                          it intended to give a final decision on the second part
    the Statute (EC) of the Court and declare non-existent,                       of the complaint in its entirety, thereby leaving
    or, in the alternative, annul the decision of 14 August                       nothing more for the Commission to decide. In the
    1995 contested in case T-204/95;                                              IECC's view, the encroachment thus made by the
                                                                                  Commission on the normal procedural sequence
                                                                                  foreseen by Commission Regulation No 99/63/EEC (4)
Ð order the Commission to pay the costs of case                                   is so grave that it should have justified that the letter
    T-204/95 and those of case T-133/95 in case it should                         of 12 April 1995 and subsequent decision of 14 August
    be annulled in part, as well as the costs of the present                      1995 be declared non-existent.
    proceedings;
                                                                               4. E r r o r o f l a w i n t h e a p p l i c a t i o n o f t h e l e g a l
Ð order the interveners before the Court of First Instance                        concept of Community interest
    to pay the applicant's costs before the Court of First
    Instance relating to the intervention in these
    proceedings;                                                                  Ð In considering that the Commission was entitled to
                                                                                       rely on the concept of Community interest without
                                                                                       expressly referring to this concept in its decision
Ð alternatively, in the event that it does not decide itself                           the Court of First Instance committed an error of
    on the case, reserve the costs and refer the matter to a                           law;
    Chamber of the Court of First Instance composed of
    judges other than those who composed the Chamber
    which ruled on joined cases T-133/95 and T-204/95.                            Ð alternatively, the Court of First Instance violated
                                                                                       the concept of Community interest and its
                                                                                       obligation to review the application of this concept
                                                                                       in that it did not examine whether the criteria of
Pleas in law and main arguments adduced in support
                                                                                       Community interest were in fact met in the present
                                                                                       case;
1. V i o l a t i o n o f A r t i c l e 3 ( 2 ) ( b ) o f
    R e g u l a t i o n 1 7 ( 3)                                                  Ð alternatively, in the event that the Court of First
                                                                                       Instance can be regarded as having examined the
                                                                                       criteria of Community interest, it violated the
    The Court of First Instance violated the concept of                                concept of Community interest by failing to
    legitimate interest of Article 3(2)(b) of Regulation 17                            properly examine whether the rights of the
    by restricting that concept unduly in refusing to                                  complainant can be adequately safeguarded by the
    recognise any legitimate interest to the IECC in all                               national courts and therefore whether the
    cases where the interceptions of remail took place                                 Commission could be justified in invoking the
    inasmuch as it would necessarily affect the business of                            concept of Community interest.
    the members of the IECC.
                                                                               5. V i o l a t i o n o f A r t i c l e s 8 5 a n d 8 6 o f t h e E C
2. M i s r e a d i n g ( D e n a t u r a t i o n ) o f t h e                      Tr e a t y r e a d i n c o n j u n c t i o n w i t h A r t i c l e s
    Decision of 6 April 1995                                                      3 ( G ) , 8 9 a n d 1 5 5 o f t h e E C Tr e a t y
    The IECC submits that the Court of First Instance
                                                                                  The Appellant submits that the Court of First Instance
    distorted the meaning, as it results from the mere
                                                                                  committed an error of law in considering, on the basis
    reading thereof, of four documents submitted to it, i.e.
                                                                                  of Articles 3(G) and 89 of the EC Treaty, taken
    the Commission's letter of 17 February 1995, the
                                                                                  together with Regulation 17/62, that the Commission
    applicant's letter of 22 February 1995, the contested
                                                                                  could reject the applicant's complaint on the sole basis
    decision in case T-133/95, i.e. the letter of 6 April
                                                                                  that the practices complained of have allegedly ceased.
    1995, and the statement in defence of the
    Commission.
                                                                               6. C o n t r a d i c t o r y    and        insufficient          legal
3. V i o l a t i o n     of      the       legal         concept      of          reasoning (failure to motivate)
    non-existent act under Community law
                                                                                  The Appellant submits that the Court of First Instance
    This plea concerns the question of the Article 6 letter                       did not correctly motivate its judgment on three points
    of 12 April 1995 and subsequent decision of 14 August                         and that certain propositions made by the Court of
    1995 which was issued after the decision of 6 April                           First Instance are in contradiction with its reasoning in
    1995 had been adopted which itself had declared that                          other parts of the case.
 ---pagebreak--- 20.2.1999              EN                  Official Journal of the European Communities                                  C 48/17
7. V i o l a t i o n o f t h e    legal   concept      of   the       3. What conditions must be satisfied for the issuer of an
     misuse of powers                                                     invoice to be acting in good faith?
     The Apellant further submits that the Court of First
     Instance made an error of law in applying the concept
     of misuse of powers in that:
                                                                      Reference for a preliminary ruling from the Pretura
                                                                      Circondariale di Brescia, by order of 24 November 1998,
     Ð it refused to appraise globally all the relevant and                  in the case of Centrosteel Srl v. Adipol GmbH
         consistent factors raised by the applicant and even
         omitted to examine an important number thereof;                                     (Case C-456/98)
                                                                                              (1999/C 48/27)
     Ð it illegally defined the type of facts which may
         constitute the objective, relevant and consistent            Reference has been made to the Court of Justice of the
         factors of a misuse of powers.                               European Communities by order of the Pretura
                                                                      Circondariale di Brescia (District Magistrate's Court,
                                                                      Brescia) of 24 November 1998, which was received at the
(1) OJ C 229, 2.9.1995, p. 22.
(2) OJ C 351, 30.12.1995, p. 17.
                                                                      Court Registry on 14 December 1998, for a preliminary
(3) Council Regulation No 17/62 of 6 February 1962 (First             ruling in the case of Centrosteel Srl v. Adipol GmbH on
    Regulation implementing Articles 85 and 86 of the Treaty)         the following questions:
    (OJ, English Special Edition 1959Ð1962, p. 87).
(4) Commission Regulation No 99/63/EEC of 25 July 1963 on the         1. What is the interpretation of Articles 52, 53, 54, 55,
    hearings provided for in Article 19(1) and (2) of Regulation          56, 57 and 58 of the EC Treaty; in particular, do
    No 17 (OJ, English Special Edition 1963Ð1964, p. 47).
                                                                          Articles 2 and 9 of Italian Law No 205 of 1985, under
                                                                          which entry in a register is compulsory for any person
                                                                          acting as an agent and an agency contract concluded
                                                                          by a person not entered on that register is void,
                                                                          constitute a restriction on the freedom of
                                                                          establishment?
Reference for a preliminary ruling by the Bundesfinanzhof             2. Do the provisions of the Treaty on freedom of
by order of that court of 15 October 1998 in the case of                  establishment contained in Articles 52 to 58 preclude
Schmeink & Cofreth AG & Co. KG against Finanzamt                          national legislation which makes the validity of an
 Borken and Manfred Strobel against Finanzamt Esslingen                   agency contract subject to entry of the commercial
                         (Case C-454/98)                                  agent in an appropriate register?
                          (1999/C 48/26)                              3. Do the provisions on freedom to provide services
                                                                          contained in Articles 59 to 66 preclude national
                                                                          legislation which makes the validity of an agency
Reference has been made to the Court of Justice of the                    contract subject to the requirement of entry of the
European Communities by order of the Bundesfinanzhof                      commercial agent in an appropriate register?
(Federal Finance Court) of 15 October 1998 received at
the Court Registry on 11 December 1998, for a
preliminary ruling in the cases of Schmeink & Cofreth AG
& Co. KG against Finanzamt Borken and Manfred
Strobel against Finanzamt Esslingen on the following
questions:                                                            Appeal brought on 16 December 1998 by Industrie des
                                                                      Poudres SpheÂriques against the judgment delivered on
                                                                      15 October 1998 by the Fifth Chamber, Extended
1. Does Community law require that provision be made                  Composition, of the Court of First Instance of the
     to allow rectification of an improperly invoiced tax as          European Communities in Case T-2/95 between Industrie
     part of the procedure for determining the tax or is it           des Poudres SpheÂriques and the Council of the European
     sufficient for the Member States to permit rectification         Union, supported by the Commission of the European
     only in a later procedure for determining whether                Communities, PeÂchiney EÂlectromeÂtallurgie and the
     payment of the tax is equitable (on objective'                  Chambre Syndicale de l'EÂlectromeÂtallurgie et de
     grounds)?                                                                                l'EÂlectrochimie
                                                                                            (Case C-458/98 P)
                                                                                              (1999/C 48/28)
2. Is it an imperative prerequisite for rectifying an
     improperly invoiced tax that the issuer of the invoice
     should demonstrate good faith or are there other                 An appeal against the judgment delivered on 15 October
     circumstances in which an invoice may be rectified               1998 by the Fifth Chamber, Extended Composition, of the
     (and, if so, what are those circumstances)?                      Court of First Instance of the European Communities in