30.12.2006   

EN

Official Journal of the European Union

C 326/45

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hold the appeal admissible;

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set aside the contested order No 303852 of 5 September 2006 of the Court of First Instance of the European Communities (Fourth Chamber) in Case T-242/05 in its entirety;

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hear and determine our action of 4 June 2005 (pursuant to Article 230 of the EU Treaty) before the Court of First Instance of the European Communities itself, or send it back to the Court which issued the decision under appeal in order for it to be held admissible on the grounds specified.

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order the respondent to pay the costs.

(a)

The decision under appeal dismissed the application and accepted the plea of inadmissibility raised by the Commission of the European Communities without taking into account the individual right to legal protection which arises in every case in which a citizen brings a case before a court; his case must be judged in its entirety and to its full extent and the decision handed down must contain sufficient and lawful reasons.

(b)

Although it is accepted that in matters of infringement of the competition rules the Commission of the European Communities is recognized as having discretion as to the action it will take, nevertheless the decision under appeal did not examine whether the Commission remained within the permissible limits of its discretion or exceeded those limits, given the fact that in any event no administrative service is allowed to act ultra vires.

(c)

It was wholly impermissible for the decision under appeal to accept that the Commission of the European Communities may act without any supervision in the area of infringement of the principles of competition and, if it is called to account for its actions, is able to avoid doing so by simply raising a plea of inadmissibility.