Case-law of the Court of Justice of the EU in cases involving the Council (1 July to 31 December 2011)

Contents

  1. Kerngegevens
  2. Text
  3. EU Monitor

1.

Kerngegevens

Document date 11-05-2012
Publication date 22-01-2013
Reference 9700/12
External link original PDF
Original document in PDF

2.

Text

COUNCIL OF Brussels, 11 May 2012 (30.05)

THE EUROPEAN UNION (OR. fr)

9700/12

JUR 265

INFORMATION NOTE

Subject: Case-law of the Court of Justice of the EU in cases involving the Council

(1 July to 31 December 2011)

  • 1. 
    In the second half of 2011, 95 cases involving the Council were closed by the three courts comprising the Court of Justice of the European Union, i.e. the Court of Justice, the

    General Court and the Civil Service Tribunal (hereafter the CST) 1 2 .

79 of the cases were closed by 76 judgments or orders, the main content of which is set out in

this six-monthly note 3 . The main purpose of this note is to highlight the aspects of those

rulings which are of particular relevance for the Council's future conduct. A list of those rulings is provided in the Annex.

1 In the same period 91 new cases involving the Council were notified to it by the Court of

Justice, the General Court and the CST.

2 At the end of December 2011, there were 239 cases involving the Council pending before the

EU courts. The breakdown was as follows: – 185 direct cases with the Council as main party; – 39 direct cases between parties other than the Council, with the Council intervening to uphold the legality of one of its acts; – 15 preliminary ruling cases concerning the validity of a Council act.

3 The remaining 16 closed cases have not been included in this note either because of their

specific nature (e.g. legal aid proceedings or taxation of costs) or because of the way in which

they were closed (e.g. by removal) .

  • 2. 
    58 of the 76 aforementioned rulings were handed down in direct cases with the Council as main party (see section I below), while 15 were issued in direct cases with the Council

    intervening (see section II below) and three were handed down in preliminary ruling cases on

    the validity of Council acts (see section III below).

  • 3. 
    In 68 of the 76 aforementioned rulings, the European Union courts upheld the Council's arguments. The Council failed in its submissions in eight cases (nos 26, 37, 42, 45, 47, 49, 53 and 58 on the list).

I. DIRECT CASES WITH THE COUNCIL AS MAIN PARTY

A. ACTIONS FOR ANNULMENT OR FOR FAILURE TO ACT

  • 1. 
    During the reference period (second half of 2011) the General Court and the CST heard 36 actions for annulment (accompanied in some cases by compensation

    claims) and one action for failure to act, brought respectively against acts or alleged omissions of the Council. The Court of Justice, on the other hand, heard no such action brought against the Council.

  • 2. 
    In the area of restrictive measures taken under the EU's Common Foreign and Security Policy, 18 actions for annulment of Council acts were heard by the

    General Court.

Of these actions, 13 sought the annulment of Council acts laying down restrictive

measures in view of the situation in Côte d'Ivoire 4 . Almost all these cases were either

dismissed as inadmissible because they were brought too late (nos 14, 15, 16, 17 and 18

on the list) 5 or have become devoid of purpose during proceedings following

withdrawal by the applicants (nos 35 and 36 on the list) or the removal of the applicants from the list of persons and entities subject to the contested restrictive measures (nos 9, 10, 50, 51 and 54 on the list). In the case of the only action with regard to which the General Court examined the substance (no 26 on the list), the Court considered the

contested acts 6 insufficient to provide legal justification and annulled them insofar as they concerned the applicant 7 .

4 The acts contested by these actions were the following: Council Decision 2011/17 i/CFSP of

11 January 2011 amending Decision 2010/656 i/CFSP renewing the restrictive measures against Côte d'Ivoire; Council Decision 2011/18 i/CFSP of 14 January 2011 amending Decision 2010/656 i/CFSP renewing the restrictive measures against Côte d'Ivoire and Council Regulation (EU) No 25/2011 i of 14 January 2011 amending Regulation (EC) No 560/2005 i imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire; Council Decision 2011/221 i/CFSP of 6 April 2011 amending Decision 2010/656 i/CFSP renewing the restrictive measures against Côte d'Ivoire and Council Regulation (EU) No 330/2011 i of 6 April 2011 amending Regulation (EC) No 560/2005 i imposing certain specific restrictive measures against certain persons and entities in view of the situation in Côte d'Ivoire.

5 The Orders of the General Court in these cases are currently the subject of appeals to the

Court of Justice (cf. Cases C-478/11 P, C-479/11 P, C-480/11 P, C-481/11 P and C-482/11 P, respectively).

6 The acts contested by this action were, more particularly, Council Decision 2011/221 i/CFSP

of 6 April 2011 amending Decision 2010/656 i/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 330/2011 i of 6 April 2011 amending Regulation (EC) No 560/2005 i imposing certain specific restrictive measures against certain persons and entities in view of the situation in Côte d'Ivoire.

7 As regards the timing of the effects of this annulment, the General Court decided, pursuant to

the second paragraph of Article 264 of the TFEU, mutatis mutandis, that the effects of Decision 2011/221 i should be deemed to be maintained until the annulment of Regulation (EU) No 330/2011 i took effect. It should be noted, in this context, that in accordance with the second paragraph of Article 60 of the Statute of the CJEU, decisions by the General Court declaring a Regulation to be void take effect only as from the expiry of the period referred to in the first paragraph of Article 56 of that Statute or, if an appeal is brought within that period, as from the date of dismissal of the appeal.

Four other actions sought the annulment of Council acts laying down restrictive

measures in view of the situation in Libya 8 . All these actions were dismissed as

inadmissible because they had been brought too late, before even having been notified to the Council (nos 31, 32, 33 and 34 on the list).

The last of the above actions (no 49 on the list) sought the annulment of Council Regulation (EU) No 961/2010 i of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 i insofar as it concerned the applicant. In support of its action, the applicant had asserted, inter alia, that the obligation to state reasons, as laid down in the second paragraph of Article 296 TFEU, had been infringed. The General Court upheld this plea as well founded and annulled the disputed

Regulation insofar as it concerned the applicant 9 .

  • 3. 
    As the applicants were not directly and/or individually concerned by the contested acts, three other actions for annulment were heard and dismissed as inadmissible by the

    General Court. These actions sought the annulment of:

    – Regulation (EC) No 1007/2009 i of the European Parliament and of the Council of

16 September 2009 on trade in seal products (no 23 on the list) 10 ;

8 The acts contested by these actions were Council Regulation (EU) No 204/2011 i of

2 March 2011 concerning restrictive measures in view of the situation in Libya and Council Implementing Regulation (EU) No 360/2011 i of 12 April 2011 implementing Article 16(1) and (2) of Regulation (EU) No 204/2011 i.

9 Pursuant to Article 264 TFEU and Article 41 of the Statute of the Court of Justice, the

General Court decided that the effects of the Regulation, insofar as it concerned the applicant, were maintained for a period of not more than two months from the date of the judgment annulling it.

10 It should be noted that, by its order in this case, the General Court undertakes an interpretation

of the new possibility of access to the Union courts afforded to natural and legal persons with the entry into force of the Treaty of Lisbon by the fourth paragraph of Article 263 TFEU, namely to institute proceedings "against a regulatory act which is of direct concern to them and does not entail implementing measures " (see paragraphs 45 and 56 of the order). This order is currently the subject of an appeal before the Court of Justice (Case C-583/11 P).

– Council Regulation (EC) No 73/2009 i of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005 i, (EC) No 247/2006 i and (EC) No 378/2007 and repealing

Regulation (EC) No 1782/2003 i (no 38 on the list);

– the second sentence of Article 8(2) of Regulation (EU) No 1210/2010 i of the European Parliament and of the Council of 15 December 210 concerning

authentication of euro coins and handling of euro coins unfit for circulation

(no 41 on the list) 11 .

  • 4. 
    In the context of the dispute concerning public access to Council documents, the General Court dismissed as manifestly unfounded an action seeking the annulment of the Council Decision of 26 July 2010 refusing to grant the applicant full access to an opinion of the Council Legal Service (6865/09) on the European Parliament's draft amendments to the Commission's proposal for a Regulation amending Regulation (EC) No 1049/2001 i of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (no 24 on the list). This action was dismissed because it was motivated by the fact that, contrary to

established case-law 12 , the applicant was not represented by a lawyer representing it as a

13

third party .

11 This order is currently the subject of an appeal to the Court of Justice (Case C-682/11 P).

12 See the order of the Court of 5 December 1996 in Case C-174/96 P (Lopes v. Court of

Justice), ECR p. I-6401, paragraph 11.

13 This order is currently the subject of an appeal to the Court of Justice (Case 573/11 P).

  • 5. 
    In the context of the dispute concerning public contracts awarded by the Council, the Alfastar-Siemens group of companies had requested, on the one hand, the annulment of the Council Decision of 1 December 2008 rejecting its bid submitted in connection with tender procedure UCA/218/07 for the provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and awarding the contract to another subcontractor and, on the other hand, compensation for damage allegedly suffered (no 42 on the list). In

    support of its application for annulment, the applicant had put forward a plea in law alleging that the obligation to state reasons had been violated. In its opinion, by simply sending it, in response to its request for additional information, a table indicating the marks obtained by itself and those obtained by the selected subcontractor, the Council

    had violated the relevant provisions of the Financial Regulation 14 and of the Regulation laying down detailed rules for the implementation of the Financial Regulation 15 .

    Upholding the applicant's arguments, the General Court considered that the contested Council Decision lacked sufficient justification and annulled it. On the other hand, the claim for compensation was deemed premature and dismissed for that reason.

  • 6. 
    In the context of the dispute relating to anti-dumping duties imposed by Council acts, the General Court dismissed three actions for the annulment of Regulations imposing such duties and upheld three others.

14 See Article 100 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the

Financial Regulation applicable to the general budget of the European Communities.

15 See Article 149 of Commission Regulation (EC, Euratom) No 2342/2002 of

23 December 2002 laying down detailed rules for the implementation of the Financial Regulation.

The actions dismissed concerned applications for annulment in part of:

– Council Regulation (EC) No 172/2008 i of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the

16

former Yugoslav Republic of Macedonia and Russia (nos 43 and 44 on the list) ;

– Council Regulation (EC) No 826/2009 i of 7 September 2009 amending Regulation (EC) No 1659/2005 i imposing a definitive anti-dumping duty on imports of certain magnesia

bricks originating in the People's Republic of China (no 55 on the list) 17 .

The first of the actions upheld concerned an application for the annulment of Council Regulation (EC) No 397/2004 i of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan to the extent that it imposed an anti-dumping duty on the applicant (no 37 on the list). In the opinion of the General Court, in failing to take into account the consequences of the abolition of the previous anti-dumping duties and ordinary customs duties within the framework of the Generalised System of Preferences introduced at the beginning of 2002 in relation to Pakistan, the Union institutions had not properly established the causal link between the injury suffered by the Community industry and imports from Pakistan of the product in question, nor had they met all their

obligations under Article 3(7) of the basic antidumping Regulation 18 19 .

16 These judgments are currently the subject of two appeals to the Court of Justice

(Cases C-13/12 P and C-10/12 P, respectively).

17 This judgment is currently the subject of an appeal to the Court of Justice (Case C-15/12 P).

18 Council Regulation (EC) No 1225/2009 i of 30 November 2009 on protection against dumped

imports from countries not members of the European Community.

19 For the reasons stated in 16273/11 JUR 539 COMER 223, this judgment is the subject of an

appeal by the Council to the Court of Justice (Case-638/11 P).

The second of the above actions concerned an application for annulment of Council

Regulation (EC) No 452/2007 i of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People's Republic of China and Ukraine to the extent that it imposed an anti-dumping duty on imports of ironing boards produced by the applicant (no 45 on the list). In support of its application, the applicant had, inter alia, put forward two pleas in law alleging violation of Article 20(4) and (5) and of Article 8(1) to (3) of the basic antidumping Regulation, as well as of rights of the defence. In its opinion, non-compliance by the Commission with the period laid down in Article 20(5) of the basic Regulation had affected in concrete terms its rights of defence because without this procedural irregularity the Commission could have reconsidered its appraisal of the rules of the undertaking operating in a market economy. The Commission's non-compliance had allegedly also resulted in a violation of the provisions of Article 8 of the basic Regulation which entitles the exporters in question to offer undertakings until that period has expired. Upholding this argument as well founded, the General Court allowed the action, annulling the contested Regulation insofar as it concerned the applicant.

The third of the actions upheld concerned, firstly, an application for annulment of Council

Regulation (EC) No 1420/2007 i of 4 December 2007 imposing a definitive anti-dumping duty on imports of silico-manganese originating in the People's Republic of China and Kazakhstan and terminating the proceedings on imports of silico-manganese originating in Ukraine to the extent that it concerned imports of silico-manganese produced by the first of the applicants, and, secondly, a claim for damages (no 47 on the list). In support of their action for annulment, the applicants put forward two pleas in law, the first alleging a failure to state reasons with regard to adjustments made to the export price for a commission made by the

Council (cf. in this regard Article 2(10)(i) of the aforementioned basic anti-dumping

Regulation), and the second alleging a manifest error of assessment by the Council when calculating the margin of price undercutting of products originating in Kazakhstan in relation to those of the Community industry. Upholding both pleas as well founded, the General Court annulled the contested Regulation insofar as it concerned imports of the first applicant's products. However, the General Court dismissed the claim for damages in its entirety since the applicants had failed to prove the existence of a causal link between the unlawful acts alleged and the damages claimed.

  • 7. 
    In the action for failure to act heard by the General Court during the reference period (no 22 on the list), the applicant, a lawyer specialising in human rights in Lebanon, had asked the General Court to find that the Council and the Commission had unlawfully omitted to take a decision on the applicant’s request concerning the adoption of

    measures against the Republic of Lebanon on account of the alleged violation by the latter of the applicant's fundamental rights and the Association Agreement concluded between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part. In the opinion of the applicant, the Council's alleged failure to act lay more specifically in the fact that it had not requested the Commission to submit a proposal for specific and effective measures regarding aid to Lebanon.

    In this regard the General Court noted at the outset that, according to the case-law 20 ,

    "an action for failure to act under Article 232 of the EC Treaty (now Article 265 TFEU)

    cannot be founded unless the institution has an obligation to act, so that the alleged

    failure to act is contrary to the Treaty" (paragraph 45 of the Order). It subsequently

    observed that the act which the Council had been called on to adopt was a request

    within the meaning of Article 208 TEC (now Article 241 TFEU). Since the Council has

    wide discretionary power with regard to such requests to the Commission, the fact that

    it did not exercise it could not be the subject of an action for failure to act 21 , and the action was dismissed as inadmissible 22 .

20 See the orders of the General Court of 13 November 1995 in Case T-126/95,

Dumez v. Commission, ECR p. II-2863, paragraph 44, and of 6 July 1998 in Case T-286/97, Goldstein v. Commission, ECR p. II-2269, paragraph 24.

21 Apart from the application for failure to act, the applicant had in his action also sought

compensation for the damage allegedly suffered as a result of the inaction of the Council and the Commission, and in particular the non-suspension of the Association Agreement in accordance with Article 86 thereof. Given the applicant's failure to establish that the Union institutions had manifestly and gravely disregarded the limits on their wide discretionary power as regards the possible suspension of the said agreement, the action for compensation was also dismissed.

22 This order is currently the subject of an appeal to the Court of Justice (Case C-581/11 P).

  • 8. 
    In the context of staff cases, seven actions for the annulment of Council administrative decisions were heard by the CST.

Six of these actions were dismissed. They sought the annulment of:

  • - 
    a Council decision rejecting a claim for compensation for the prejudice

    allegedly caused by the Council to the applicant (no 57 on the list) 23 ;

  • - 
    a Council decision not to include the applicant on the list of officials promoted to grade AD 13 in the 2009 promotion exercise (no 68 on the

    list) 24 ;

  • - 
    Council decisions to assign the applicant to the AST 1-7 career stream in the assistants' function group and not to promote him to grade AST 2 in the

    2008 promotion exercise (no 73 on the list);

  • - 
    a Council decision not to promote the applicant to grade AST 7 in the 2008 promotion exercise (no 74 on the list);
  • - 
    a Council decision not to include the applicant's name on the list of officials promoted to grade AST 11 in the 2007 promotion exercise (no 75 on the

    list) 25 ;

  • - 
    the applicant's staff report, and the Council decision not to promote her in the 2010 promotion exercise (no 76 on the list).

In the same context, the CST allowed an action for annulment of the applicant's staff report (no 58 on the list). According to the CST, by failing to give the applicant a proper hearing before her final report was drawn up, the Council had infringed the rules of procedure for reports and the applicant's rights of defence.

23 This action also included a claim for damages, which was also rejected.

24 This action also included a claim for damages, which was also rejected.

25 This judgment is currently the subject of an appeal to the General Court (Case T-95/12 P).

B. ACTIONS FOR DAMAGES

In the only action for damages heard by the General Court in the second half of 2011 (no 46 on the list), the applicant, in substance, sought compensation for prejudice

allegedly suffered as a result of restrictive measures (freezing of funds) 26 adopted

vis-à-vis the applicant with a view to combating terrorism and subsequently annulled by

an interlocutory judgment by the General Court 27 on the ground that they breached the

conditions laid down in the basic Community legislation on the freezing of funds (specifically the requirement for a decision against the person or entity concerned to

have been taken by a competent national judicial authority) 28 .

In support of his action for damages, the applicant had argued, in particular, that the unlawful elements in the contested Council acts: firstly, infringement of Article 2(3) of Regulation No 2580/2001 i, in conjunction with Article 1(4) of Common Position 2001/931 and, secondly, infringement of his fundamental rights, in particular the right to respect for his private life and the right to property, should be considered as "sufficiently serious breaches of rules of law intended to confer rights on individuals" and these unlawful elements had caused serious prejudice to him in a sufficiently direct manner. Thus, according to the applicant, the three conditions which must be met in order for non-contractual liability to be incurred by the Community, set out in Article 235, and the second paragraph of Article 288, of the EC Treaty, were met in this case.

26 In particular, Regulation (EC) No 501/2009 i of 15 June 2009 implementing Article 2(3) of

Regulation No 2580/2001 i and repealing Decision 2009/62 i

27 Judgment of 30 September 2009 in Case T-341/07, Sison v. Council ECR p. II-3625; re this

judgment, see 8825/10 JUR 209, point I, A, 7, page 8.

28 On this last point, see Article 1(4) of Council Common Position 2001/931/CFSP of

27 December 2001 on the application of specific measures to combat terrorism and Article 2(3) of Council Regulation (EC) No 2580/2001 i of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism.

The General Court considered it expedient to begin by examining whether the first of the conditions for liability on the part of the Community - relating to the unlawfulness of the Council's conduct - was satisfied in this case.

In this connection, the General Court first pointed out that the action for damages was established as an autonomous form of action with a particular purpose to fulfil within the system of legal remedies, its exercise being subject to conditions dictated by its specific object, and that it is not therefore the purpose of an action for damages to make good damage caused by all unlawfulness (point 32 of the judgment). Quite to the contrary, only a sufficiently serious breach of a rule of law intended to confer rights on individuals can, according to the General Court, render the Community liable (point 33 of the judgment). The decisive, although not the sole, test for a finding that this requirement has been satisfied is whether the institution concerned has manifestly and gravely disregarded the limits of its discretion (point 35 of the judgment). Thus, only the finding of an irregularity that an administrative authority, exercising ordinary care and diligence, would not have committed in similar circumstances, can render the

Community liable (point 39 of the judgment).

To ascertain whether this was the case with respect to the unlawful elements asserted by the applicant and, in part, already established by the General Court's interlocutory judgment referred to above, the General Court also took into consideration, firstly, the legal and factual complexity of the situation to be regulated, secondly, the difficulties in applying and interpreting Article 2(3) of Regulation No 2580/2001 i, in conjunction with Article 1(4) of Common Position 2001/931 and, thirdly, the importance of the objectives of general interest linked to the combating of international terrorism pursued by the Regulation. Having assessed these elements, the General Court considered that neither the established breach of the abovementioned provisions of Regulation

No 2580/2001 and of Common Position 2001/931 nor the alleged breach of the applicant's fundamental rights could be regarded as a sufficiently serious breach of

Community law for the Community to incur non-contractual liability to the applicant.

Since it considered that the condition which must be met in order for non-contractual liability to be incurred by the Community relating to the unlawfulness of the Council's conduct complained of was not met, the General Court then dismissed the action for damages, without assessing the other conditions for such liability.

C. APPEALS

  • 1. 
    Seven appeals for the annulment of judgments or orders of the General Court or of the CST in first-instance cases in which the Council was involved were heard by, respectively, the Court of Justice and the General Court.
  • 2. 
    All these appeals against judgments and orders in which the General Court and the CST had ruled at first instance in favour of the Council were brought by parties

    other than the Council.

    Dismissing six of these appeals, the Court of Justice and the General Court fully confirmed:

    • - 
      the order of the President of the Eighth Chamber of the General Court 29

      dismissing applications to intervene in support of the form of order sought at first instance by the applicant in case T-536/08, Huvis v. Council (no 3 on the list);

29 Order of 14 December 2010 in Case T-536/08, Huvis v. Council, not yet published in the ECR - the order of the President of the Eighth Chamber of the General Court 30

dismissing applications to intervene in support of the form of order sought at first instance by the applicants in case T-537/08, Cixi Jiangnan Chemical Fiber and Others v. Council (no 4 on the list);

  • - 
    the judgment of the General Court 31 dismissing an appeal seeking the partial

    annulment of Council Regulation (EC) No 1136/2006 i of 24 July 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People's Republic of China (no 5 on the list);

    • - 
      the order of the President of the General Court 32 dismissing an application

      for interim measures ordering the suspension of Regulation (EC) No 1007/2009 i of the European Parliament and of the Council of 16 September 2009, on trade in seal products (no 6 on the list);

    • - 
      the judgment of the CFI 33 dismissing an appeal seeking the annulment of

      paragraph 4, section B of the Annex to Council Decision 2008/475/EC i of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 i concerning restrictive measures against Iran, insofar as it relates to the applicant, its subsidiaries and branches (no 7 on the list);

30 Order of 14 December 2010 in Case T-537/08, Cixi Jiangnan Chemical Fiber and Others v.

Council, not yet published in the ECR

31 Judgment of 23 September 2009 in Case T-296/06, Dongguan anzha Leco Stationery v.

Council, not yet published in the ECR

32 Order of 25 October 2010 in Case T-18/10 R II, Inuit Tapiriit Kanatami and Others v.

Parliament and Council, not yet published in the ECR

33 Judgment of 14 October 2009 in Case T-390/08, Bank Melli Iran v. Council, ECR p. II-3967 - the judgment of the CST 34 i.a. dismissing an objection of illegality against

Article 88 of the Conditions of Employment of Other Servants of the EC (CEOS) insofar as it limits the duration of the contracts of contractual staff members (no 30 on the list).

Allowing the seventh of these appeals (no 53 on the list), the General Court

35

annulled the order of the CST i.a. dismissing as unfounded an objection of illegality against Article 12(3) of Annex XIII to the Staff Regulations, laying down transitional rules for the grading of officials recruited between 1 May 2004 and 30 April 2006. However, considering that the state of the proceedings did not permit a decision, the General Court referred the case back to the CST for it to carry out the necessary checks which would enable it lawfully to conclude that the abovementioned objection of illegality should be dismissed.

D. SPECIAL PROCEDURES

  • 1. 
    Ten applications for interim measures and three applications for revision were also heard in the second half of 2011.
  • 2. 
    The first nine applications for interim measures sought the suspension of EU acts introducing restrictive measures under its Common Foreign and Security Policy.

34 Judgment of 4 June 2009 in Joined Cases F-134/07 and F-8/08, Adjemian and Others v.

Commission, not yet published in the ECR

35 Judgment of 30 September 2010 in Case F-20/06, De Luca v. Commission, not yet published

in the ECR Three of these applications were directed against restrictive measures adopted in

36

view of the situation in Côte d'Ivoire (nos 12, 13 and 29 on the list) , one against restrictive measures against certain persons and entities in view of the situation in

37

Tunisia (no 19 on the list) , three against restrictive measures adopted against Iran with the aim of preventing nuclear proliferation (nos 25, 39 and 40 on the

list) 38 and two against restrictive measures against Syria (nos 52 and 56 on the list) 39 .

36 The acts the suspension of which was sought were Council Decision 2011/18 i/CFSP

of 14 January 2011 amending Council Decision 2010/656 i/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 25/2011 i of 14 January 2011 amending Regulation (EC) No 560/2005 i imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire.

37 The act the suspension of which was sought was Council Implementing Decision

2011/79/CFSP of 4 February 2011 implementing Decision 2011/72 i/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia .

38 The acts the suspension of which was sought were Council Decision 2010/413 i/CFSP of

26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP and Council Implementing Regulation (EU) No 668/2010 i of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 i concerning restrictive measures against Iran; Council Decision 2010/644 i/CFSP of 25 October 2010 amending Decision 2010/413 i and Council Regulation (EU) No 961/2010 i of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 i; Council Decision 2011/299 i/CFSP of 23 May 2011 amending Decision 2010/413 i/CFSP concerning restrictive measures against Iran and Council Implementing Regulation (EU) No 503/2011 i of 23 May 2011 implementing Regulation (EU) No 961/2010 i on restrictive measures against Iran.

39 The acts the suspension of which was sought were Council Decision 2011/522 i/CFSP of

2 September 2011 amending Decision 2011/273 i/CFSP concerning restrictive measures against Syria and Council Regulation (EU) No 878/2011 i of 2 September 2011 amending Regulation (EU) No 442/2011 i concerning restrictive measures in view of the situation in Syria; Council Decision 2011/628 i/CFSP of 23 September 2011 amending Decision 2011/273 i/CFSP concerning restrictive measures against Syria; Council Decision 2011/684 i/CFSP of 13 October 2011 amending Decision 2011/273 i/CFSP concerning restrictive measures against Syria and Council Regulation (EU) No 1011/2011 i of

view of the situation in Syria.

9700/12 ste/DD/ep 17 The applications for interim measures directed against measures adopted in view

of the situation in Côte d'Ivoire did not proceed to judgment since the applicants had been withdrawn, by subsequent Council acts, from the list of persons and entities subject to the contested restrictive measures. The other applications for

40

interim measures were dismissed on grounds of lack of urgency .

  • 3. 
    The tenth of these applications for interim measures (no 48 on the list) sought the partial suspension of Council Decision 2010/787 i/EU of 10 December 2010 on

    State aid to facilitate the closure of uncompetitive coal mines, and, alternatively, an application for the complete suspension of the Decision. This application was dismissed partly as inadmissible and partly as unfounded, since the balance of the various interests concerned did not, in the view of the President of the General Court, favour the applicant.

  • 4. 
    The three abovementioned applications for revision sought the revision of:
    • - 
      the order of the President of the First Chamber of the CST of 16 September 2010 removing cases from the register, Block and Others v. Commission and Knaul and Others v. Commission, Joined Cases F-8/05 and F-10/05 (no 59 on the list);
    • - 
      the order of the President of the First Chamber of the CST of 16 September 2010 removing a case from the register, Avendano and Others v. Commission, Case F-45/06 (no 60 on the list);
    • - 
      the order of the President of the First Chamber of the CST of 16 September 2010 removing a case from the register, Blank and Others v. Commission, Case F-103/06 (no 61 on the list).

40 The order in case no 40 is currently the subject of an appeal to the Court of Justice

(Case C-644/11 P (R)).

Considering that orders removing a case from the register issued as a result of the applicant's withdrawal do not constitute a "decision of the Tribunal" within the meaning of Article 119 RP CST and cannot therefore be the subject of an application for revision, the CST dismissed all these applications as inadmissible.

II. DIRECT CASES WITH THE COUNCIL INTERVENING

  • 1. 
    During the reference period, the General Court and CST handed down 15 judgments and orders concluding 18 direct cases between parties other than the Council in which the latter participated as an intervening party.

    The Council's intervention in these cases was motivated by the need to defend the legality of one of its acts, which had been challenged as an incidental question through 8 objections of illegality within the meaning of Article 277 TFEU.

  • 2. 
    Three of these objections had been raised in cases before the General Court. They challenged the legality of:
    • - 
      Article 23(2) of Council Regulation (EC) No 1/2003 i of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, on the ground that this provision gave the Commission unlimited

      discretion when calculating fines (no 11 on the list); since the argument put forward in support of this objection of illegality (namely infringment of the principle of the legality of sentences) was not successful, the objection was dismissed;

    • - 
      Council Regulation (EC) No 881/2002 i of 27 May 2002, imposing certain specific restrictive measures directed against certain persons and entities associated with

      Usama bin Laden, the Al-Qaida network and the Taliban (nos 20 and 21 on the list); since it dismissed the main applications as manifestly inadmissible in view of their late submission, the General Court was not required to rule on this objection of illegality;

    • - 
      Article 9, subparagraph (a), Article 10(3), Article 11 and Article 16(1) of Directive 98/8/EC i of the European Parliament and of the Council of

      16 February 1998 concerning the placing of biocidal products on the market (nos 27 and 28 on the list); given that it dismissed the main applications as inadmissible since the applicants were not individually concerned, the General Court was not required to rule on this objection of illegality.

  • 3. 
    The five other objections of illegality had been raised in cases before the CST. They challenged the legality of:
    • - 
      Articles 2 and 8 of Annex XIII to the Staff Regulations (transitional rules for grading as at 1 May 2004) (no 72 on the list); noting that this objection had

      already been examined and dismissed in previous judgments of the Court of First

      Instance 41 42 and the Court of Justice , the CST considered that, since the authority

      of res judicata attached to these judgments, an identical objection of illegality could not be submitted to it again and examined by it;

41 See judgment of 18 September 2008 in Case T-47/05, Angé Serrano and Others v.

Parliament, not published in the ECR

42 See judgment of 4 March 2010 in Case C-496/08 P, Angé Serrano and Others v. Parliament,

not published in the ECR - Article 5(2) of Annex XIII to the Staff Regulations (transitional rules on the grading of officials placed on a list of candidates suitable for transfer from one category to another before 1 May 2006) (no 63 on the list); none of the grounds raised in support of this objection of illegality (infringement of the principle of equal treatment, of Articles 7, 29 and 31 of the Staff Regulations and of the principle of protection of legitimate expectations) was accepted and it was therefore dismissed by the CST;

  • - 
    Article 5(4) of Annex XIII to the Staff Regulations (transitional rules on the grading of temporary servants placed on a list of suitable candidates before 1 May 2006) (no 67 on the list); the CST, taking the view that the provision did not apply to the applicant, did not examine the objection of illegality raised;
  • - 
    Article 12(3) of Annex XIII to the Staff Regulations (transitional rules on the grading of officials recruited between 1 May 2004 and 30 April 2006); this

    objection of illegality, raised in five cases, was either dismissed as unfounded on

    the basis of prior case-law of the Court 43 (nos 69 and 70 on the list) 44 or was not

examined by the CST at all following withdrawal by the applicants (nos 62 and 63

on the list) or dismissal of the main action as inadmissible (no 71 on the list) 45 ;

43 See judgment of 22 December 2008 in Case C-443/07 P, Centeno Mediavilla and others v.

Commission (ECR 2008, p. I-10945).

44 The judgments of the CST in these cases are currently the subject of appeals to the General

Court (Cases T-630/11 P and T-641/11 P respectively).

45 The judgment of the CST in this case is currently the subject of an appeal to the General

Court (Case T-642/11 P).

  • - 
    Article 45 of, and Annex XIII to, the Staff Regulations inasmuch as the provisions in question contain no transitional measures relating to promotions after the entry into force of the new Staff Regulations on 1 May 2004 (nos 64, 65 and 66 on the

    list); none of the grounds raised in support of this objection of illegality (infringement of the principles of protection of legitimate expectations, preservation of acquired rights, equal treatment and entitlement to reasonable career prospects) was accepted and it was therefore dismissed by the CST.

III. PRELIMINARY RULINGS ON THE VALIDITY OF COUNCIL ACTS

  • 1. 
    Three preliminary rulings on the validity of Council acts were given by the Court of Justice during the second half of 2011.
  • 2. 
    Examination of the questions put by the national courts in the context of two of those cases revealed no issues likely to affect the validity of:
    • - 
      Article 11 of Council Regulation (EC) No 320/2006 i of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) no 1290/2005 i on the financing of the common agricultural policy (no 1 on the list), in the light of the principle of conferral of powers, the obligation to state reasons, the proportionality principle or the alleged unjust enrichment of the European Union;
    • - 
      Directive 2008/101/EC i of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC i so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (no 8 on the list), in the light of international treaty law and customary international law; having recalled the conditions under which the validity of an EU legislative act may be assessed in the light of the rules of international law (paragraphs 51 to 55), the Court, in its judgment, held that in this

      case only certain provisions of the "Open Skies" agreement 46 (namely Article 7,

      Article 11(1) and (2)(c), and Article 15(3) in conjunction with Article 2 and Article 3(4)) and three principles of customary international law (namely the principle of sovereignty of States over their air space, the invalidity of claims of sovereignty over the high seas and the freedom to fly over the high seas) could be relied upon for the purpose of assessing the validity of Directive 2008/101/EC i referred to above.

46 Air Transport Agreement between the United States of America, of the one part, and the

European Community and its Member States, of the other part, signed on 25 and 30 April 2007 (OJ L 134, 25.5.2007, p. 4), as amended by the Protocol signed on 24 June 2010 (OJ L 223, 25.8.2010, p. 3).

  • 3. 
    In two questions put in the context of the third request for a preliminary ruling 47 (no 2

    on the list), the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) had in essence asked whether the term "illicit device" within the meaning of point (e) of Article 2 of Directive 98/84/EC i of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access had to be interpreted as covering foreign decoders, including those obtained or activated under a false name or address, and those used in breach of a contractual restriction allowing their use for private purposes only, and, if so, whether Article 3(1) and (2) and Article 4 of the Directive in question were invalid. Having replied to the first question in the negative, the Court was not required to rule on the question of validity.

_______________

47 Joined for the purposes of the written and oral procedures and of the judgment with

Case C-403/08, Football Association Premier League and others, in respect of which. however, the Council did not submit written observations as there was no challenge to the validity of one of its acts.

ANNEX

I. COURT OF JUSTICE *

  • 1. 
    Judgment of 28 July 2011 in Case C-309/10, Agrana Zucker, not yet published in the ECR
  • 2. 
    Judgment of 4 October 2011 in Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd and others, not yet published in the ECR
  • 3. 
    Order of 17 October 2011 in Case C-2/11 P(I), Gesamtverband der Deutschen Textilund Modeindustrie eV and others v. Council, not yet published in the ECR
  • 4. 
    Order of 17 October 2011 in Case C-3/11 P(I), Gesamtverband der Deutschen Textilund Modeindustrie eV and others v. Council, not yet published in the ECR
  • 5. 
    Judgment of 27 October 2011 in Case C-511/09 P, Dongguan anzha Leco Stationery Mfg. Co. Ltd v. Council, not yet published in the ECR
  • 6. 
    Order of 27 October 2011 in Case C-605/10 P(R), Inuit Tapiriit Kanatami and Others v. Parliament and Council, not yet published in the ECR
  • 7. 
    Judgment of 16 November 2011 in Case C-548/09 P, Bank Melli Iran v. Council, not yet published in the ECR
  • 8. 
    Judgment of 21 December 2011 in Case C-366/10, Air Transport Association of America and others, not yet published in the ECR

II. GENERAL COURT *

  • 9. 
    Order of 6 July 2011 in Case T-142/11, SIR v. Council, not yet published in the ECR
    • 10. 
      Order of 6 July 2011 in Case T-160/11, Petroci v. Council, not yet published in the ECR
    • 11. 
      Judgment of 13 July 2011 in Case T-138/07, Schindler Holding Ltd and Others v. European Commission, not yet published in the ECR
  • 12. 
    Order of 13 July 2011 in Case T-142/11 R, SIR v. Council, not yet published in the ECR
    • 13. 
      Order of 13 July 2011 in Case T-160/11 R, Petroci v. Council, not yet published in the ECR
    • 14. 
      Order of 13 July 2011 in Case T-348/11, Gbagbo v. Council, not yet published in the ECR
  • 15. 
    Order of 13 July 2011 in Case T-349/11, Koné v. Council, not yet published in the ECR
  • 16. 
    Order of 13 July 2011 in Case T-350/11, Boni-Claverie v. Council, not yet published in the ECR
  • 17. 
    Order of 13 July 2011 in Case T-351/10, Djédjé v. Council, not yet published in the

    ECR

  • 18. 
    Order of 13 July 2011 in Case T-352/11, 'Guessan v. Council, not yet published in the ECR
  • 19. 
    Order of 14 July 2011 in Case T-187/11 R, Trabelsi and others v. Council, not yet published in the ECR
  • 20. 
    Order of 1 September 2011 in Case T-101/09, Maftah v. Commission, not yet published in the ECR
  • 21. 
    Order of 1 September 2011 in Case T-102/09, Elosta v. Commission, not yet published in the ECR
  • 22. 
    Order of 6 September 2011 in Case T-292/09, Mugraby v. Council and Commission, not yet published in the ECR
  • 23. 
    Order of 6 September 2011 in Case T-18/10, Inuit Tapiriit Kanatami and Others v.

    Parliament and Council, not yet published in the ECR

  • 24. 
    Order of 6 September 2011 in Case T-452/10, ClientEarth v. Council, not yet published in the ECR
  • 25. 
    Order of 8 September 2011 in Case T-439/10 R, Fulmen v. Council, not yet published in the ECR
  • 26. 
    Judgment of 16 September 2011 in Case T-316/11, Kadio Morokro v. Council, not yet published in the ECR
  • 27. 
    Judgment of 20 September 2011 in Joined Cases T-75/04 and T-77/04 to T-79/04, Arch Chemicals and Arch Timber Protection v. Commission, not yet published in the ECR
  • 28. 
    Judgment of 20 September 2011 in Case T-120/08, Arch Chemicals and others v.

    Commission, not yet published in the ECR

  • 29. 
    Order of 20 September 2011 in Case T-177/11 R, PASP and others v. Council, not yet published in the ECR
  • 30. 
    Judgment of 21 September 2011 in Case T-325/09 P, Adjemian and others v.

    Commission, not yet published in the ECR

  • 31. 
    Order of 22 September 2011 in Case T-374/11, Lybian Investment Authority and others v. Council, not yet published in the ECR
  • 32. 
    Order of 22 September 2011 in Case T-375/11, Houej v. Council, not yet published in the ECR
  • 33. 
    Order of 22 September 2011 in Case T-376/11, CBL v. Council, not yet published in the ECR
  • 34. 
    Order of 22 September 2011 in Case T-377/11, FDES and others v. Council, not yet published in the ECR
  • 35. 
    Order of 23 September 2011 in Case T-193/11, Ahoua- 'Guetta and others v. Council, not yet published in the ECR
  • 36. 
    Order of 23 September 2011 in Case T-194/11, Bro Grébé v. Council, not yet published in the ECR
  • 37. 
    Judgment of 27 September 2011 in Case T-199/04, Gul Ahmed Textile Mills v. Council, not yet published in the ECR
  • 38. 
    Order of 28 September 2011 in Case T-96/09, UCAPT v. Council, not yet published in the ECR
  • 39. 
    Order of 28 September 2011 in Case T-384/11 R, Safa icu Sepahan v. Council, not yet published in the ECR
  • 40. 
    Order of 3 October 2011 in Case T-421/11 R, Qualitest v. Council, not yet published in the ECR
  • 41. 
    Order of 12 October 2011 in Case T-149/11, GS v. Parliament and Council, not yet published in the ECR
  • 42. 
    Judgment of 20 October 2011 in Case T-57/09, Alfastar Benelux v. Council, not yet published in the ECR
  • 43. 
    Judgment of 25 October 2011 in Case T-190/08, CHEMK and KF v. Council, not yet published in the ECR
  • 44. 
    Judgment of 25 October 2011 in Case T-192/08, Transnational Company "Kazchrome" and E RC Marketing v. Council, not yet published in the ECR
  • 45. 
    Judgment of 8 November 2011 in Case T-274/07, Zhejiang Harmonic Hardware

    Products v. Council, not yet published in the ECR

  • 46. 
    Judgment of 23 November 2011 in Case T-341/07, Sison v. Council, not yet published in the ECR
  • 47. 
    Judgment of 30 November 2011 in Case T-107/08, Transnational Company

    "Kazchrome" and E RC Marketing v. Council, not yet published in the ECR

  • 48. 
    Order of 2 December 2011 in Case T-176/11 R, Carbunión v. Council, not yet published in the ECR
    • 49. 
      Judgment of 7 December 2011 in Case T-562/10, HTTS Hanseatic Trade Trust & Shipping v. Council, not yet published in the ECR
    • 50. 
      Order of 7 December 2011 in Case T-138/11, Ahouma v. Council, not yet published in the ECR
    • 51. 
      Order of 7 December 2011 in Case T-255/11, Fellah v. Council, not yet published in the ECR
    • 52. 
      Order of 12 December 2011 in Case T-579/11 R, Akhras v. Council, not yet published in the ECR
    • 53. 
      Judgment of 14 December 2011 in Case T-563/10 P, De Luca v. Commission, not yet published in the ECR
    • 54. 
      Order of 15 December 2011 in Case T-285/11, Gooré v. Council, not yet published in the ECR
    • 55. 
      Judgment of 16 December 2011 in Case T-423/09, Dashiqiao Sanqiang Refractory Materials v. Council, not yet published in the ECR
    • 56. 
      Order of 22 December 2011 in Case T-593/11 R, Al-Chihabi v. Council, not yet published in the ECR

III. CIVIL SERVICE TRIBUNAL *

  • 57. 
    Order of 5 July 2011 in Case F-73/10, Coedo Suárez v. Council, not yet published in the ECR
  • 58. 
    Judgment of 13 September 2011 in Case F-4/10, astvogel v. Council, not yet published in the ECR
  • 59. 
    Judgment of 20 September 2011 in Case F-8/05 REV, Fouwels and others v. Commission, not yet published in the ECR
  • 60. 
    Judgment of 20 September 2011 in Case F-45/06 REV, De Buggenoms and others v. Commission, not yet published in the ECR
  • 61. 
    Judgment of 20 September 2011 in Case F-103/06 REV, Saintraint and others v. Commission, not yet published in the ECR
  • 62. 
    Judgment of 26 September 2011 in Case F-23/06, Abad-Villanueva and others v. Commission, not yet published in the ECR
  • 63. 
    Judgment of 26 September 2011 in Case F-31/06, Pino v. Commission, not yet published in the ECR
  • 64. 
    Order of 27 September 2011 in Case F-105/06, Lubking and others v. Commission, not yet published in the ECR
  • 65. 
    Order of 27 September 2011 in Case F-75/07, Brown and Volpato v. Commission, not yet published in the ECR
  • 66. 
    Order of 27 September 2011 in Case F-82/07, Dittert v. Commission, not yet published in the ECR
  • 67. 
    Order of 28 September 2011 in Case F-66/06, Kyriazi v. Commission, not yet published in the ECR
  • 68. 
    Judgment of 28 September 2011 in Case F-9/10, AC v. Council, not yet published in the ECR
  • 69. 
    Judgment of 29 September 2011 in Case F-56/05, Strobl v. Commission, not yet published in the ECR
  • 70. 
    Judgment of 29 September 2011 in Case F-70/05, Mische v. Commission, not yet published in the ECR
  • 71. 
    Judgment of 29 September 2011 in Case F-93/05, Mische v. Parliament, not yet published in the ECR
  • 72. 
    Judgment of 29 September 2011 in Case F-9/07, Serrano v. Parliament, not yet published in the ECR
  • 73. 
    Judgment of 10 November 2011 in Case F-18/09, Merhzaoui v. Council, not yet published in the ECR
  • 74. 
    Judgment of 10 November 2011 in Case F-20/09, Juvyns v. Council, not yet published in the ECR
  • 75. 
    Judgment of 13 December 2011 in Case F-51/08 RENV, Stols v. Council, not yet published in the ECR.
  • 76. 
    Judgment of 15 December 2011 in Case F-9/11, Sabbag Afota v. Council, not yet published in the ECR

____________________

  • * 
    The texts of the rulings mentioned in this list but not published or not yet published in the

    European Court Reports are available on the website of the Court of Justice at www.curia.europa.eu.

 
 
 
 

3.

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