25.2.2012   

EN

Official Journal of the European Union

C 58/3

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Annul the order under appeal of the General Court and declare the application for annulment admissible, should the Court of Justice consider that all elements required to decide on the admissibility of the action for annulment of the contested Regulation (1) are present;

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In the alternative, annul the order under appeal and refer the case back to the General Court;

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Order the European Parliament and the Council of the European Union to pay the Appellants’ costs;

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Order the European Commission and the Kingdom of the Netherlands to pay their own costs.

1.

The Appeal is based on three main grounds of appeal: 1) the General Court erred in law in the application of Article 263, fourth paragraph, of the Treaty on the Functioning of the European Union (‘TFEU’), 2) the General Court violated the duty to state reasons and, in subsidiary order, violated Articles 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 6 and 13 of the European Convention for the protection of Human Rights and Fundamental Freedoms (‘ECHR’), as principles of the Union's law, and 3) that the General Court wrongly presented and distorted the evidence adduced by the Applicants at first instance.

2.

In the First Ground of Appeal, the Appellants allege that the interpretation given by the General Court to the term ‘regulatory act’, i.e., as separate and exclusive of a ‘legislative act’, is erroneous as it negates any raison d'être of the new possibility for the institution of proceedings based on Article 263, fourth paragraph (first part of the first ground of appeal). In the second part of the first ground of appeal, the Appellants also demonstrate that the General Court erred in law by concluding that only four of the eighteen Appellants are directly concerned by the contested Regulation. The General Court applied a too restrictive interpretation to the concept of direct concern. The General Court also erred in law by applying too restrictive an interpretation of the requirement of individual concern.

3.

In the Second Ground of Appeal, the Appellants recall that in their observations on the pleas of inadmissibility, they had submitted that only a broad interpretation of Article 263, fourth paragraph, TFEU would be in conformity with Article 47 of the Charter Articles 6 and 13 ECHR. Given that this plea of law was decisive for the outcome of the case, the General Court was under a legal duty to provide for a specific and express reply. The Appellants demonstrate, however, that the General Court did not adequately address this plea of law. The omission of the General Court to do so constitutes an error in law which shall result in the annulment of the order under appeal (first part of the second ground of appeal). In the second part of the second ground of appeal, and in subsidiary order, the Appellants respectfully invite the Court of Justice to annul the order under appeal on the ground that the interpretation of Article 263, fourth paragraph, and the consequent decision of the General Court to declare the Appellant's action inadmissible, violates Article 47 of the Charter and Articles 6 and 13 ECHR, as general principles of the Union's law.

4.

In the Third Ground of Appeal, the Appellants claim that the General Court wrongly presented and distorted the evidence they had adduced. Indeed, the General Court rejects the Appellants’ argument concerning the interpretation to be given to the term ‘regulatory act’ on the basis of two claims that the Appellants allegedly made, but in reality did not. The findings of fact of the order under appeal are therefore incorrect and distort the clear sense of the evidence available to the General Court, without it being necessary to undertake a fresh assessment of the facts. Since the General Court interpreted the arguments adduced in a way that is at odds with their wording, the finding of the General Court in the order under appeal is vitiated by some manifest errors of assessment.