61986O0085

PROCEDURE - ORIGINATING APPLICATION - IDENTIFICATION OF THE DEFENDANT

( EEC TREATY , ART . 180 ( B ); RULES OF PROCEDURE , ART . 38 ( 1 ))

IN CASE 85/86

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY BERNARD PAULIN , PRINCIPAL ADVISER , AND HENDRIK VAN LIER , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

BOARD OF GOVERNORS OF THE EUROPEAN INVESTMENT BANK ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE DECISION OF THE BOARD OF GOVERNORS OF THE EUROPEAN INVESTMENT BANK OF 30 DECEMBER 1985 ON THE DISPOSAL OF THE PROCEEDS OF THE INCOME TAX WITHHELD FROM STAFF SALARIES AND PENSIONS IS VOID ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 MARCH 1986 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLES 180 ( B ) AND 173 OF THE EEC TREATY FOR A DECLARATION THAT THE DECISION OF THE BOARD OF GOVERNORS OF THE EUROPEAN INVESTMENT BANK OF 30 DECEMBER 1985 ON THE DISPOSAL OF THE PROCEEDS OF THE INCOME TAX WITHHELD FROM STAFF SALARIES AND PENSIONS IS VOID .

2 BY A MEMORANDUM OF 17 APRIL 1984 , SUBMITTED ON BEHALF OF THE EUROPEAN INVESTMENT BANK BY ITS AGENT , DULY APPOINTED BY THE PRESIDENT OF ITS MANAGEMENT COMMITTEE , THE BANK RAISED AN OBJECTION OF INADMISSIBILITY AND REQUESTED THE COURT , IN ACCORDANCE WITH ARTICLE 91 OF THE RULES OF PROCEDURE , TO GIVE A DECISION ON THAT OBJECTION WITHOUT PROCEEDING TO CONSIDER THE SUBSTANCE OF THE CASE . THE BANK ARGUES THAT THE APPLICATION TO THE COURT DOES NOT FULFIL AN ESSENTIAL CONDITION IN ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE , NAMELY THAT IT SHOULD STATE THE NAME OF THE PARTY AGAINST WHOM IT IS MADE ; IT CITES THE ' EUROPEAN INVESTMENT BANK ' AS THE DEFENDANT WHEREAS , ACCORDING TO ARTICLE 180 ( B ) OF THE EEC TREATY , AN ACTION CAN VALIDLY BE BROUGHT ONLY AGAINST THE BOARD OF GOVERNORS OF THE BANK , WHICH ADOPTED THE DECISION WHOSE ANNULMENT IS SOUGHT .

3 THE COMMISSION REQUESTED THE COURT TO DECLARE THE APPLICATION ADMISSIBLE , OBSERVING THAT THE FACT THAT IT NAMED AS DEFENDANT THE LEGAL PERSON OF WHICH THE BOARD OF GOVERNORS IS AN ORGAN DID NOT GIVE RISE TO ANY UNCERTAINTY AS TO THE SUBJECT-MATTER OF THE DISPUTE OR THE AUTHOR OF THE CONTESTED DECISION , BOTH OF WHICH ARE SPECIFIED IN THE APPLICATION . THE NAMING OF THE BANK IS EXPLAINED BY THE HISTORY OF THE DISPUTE AND DID NOT HARM THE INTERESTS OF THE DEFENDANT .

4 ARTICLE 91 ( 3 ) OF THE RULES OF PROCEDURE PROVIDES THAT , ONCE THE APPLICATION AND THE OPPOSITE PARTY ' S SUBMISSIONS HAVE BEEN LODGED , THE REMAINDER OF THE PROCEEDINGS SHALL BE ORAL UNLESS THE COURT DECIDES OTHERWISE ; UNDER ARTICLE 91 ( 4 ) THE COURT MUST DECIDE ON THE APPLICATION OR RESERVE ITS DECISION FOR THE FINAL JUDGMENT . IN THIS CASE , THE COURT CONSIDERS THAT IT IS SUFFICIENTLY INFORMED AFTER READING THE WRITTEN STATEMENTS AND THAT , IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE , IT SHOULD RESOLVE THE DISPUTE AS TO THE PARTY AGAINST WHOM THE ACTION SHOULD BE BROUGHT BEFORE IT GOES ON TO EXAMINE THE SUBSTANTIVE ISSUES . THE COURT SHOULD THEREFORE DISPOSE OF THE OBJECTION OF INADMISSIBILITY BY WAY OF AN ORDER , WITHOUT OPENING THE ORAL PROCEDURE .

5 BY VIRTUE OF ARTICLE 180 ( B ) OF THE EEC TREATY THE COURT HAS JURISDICTION IN DISPUTES CONCERNING MEASURES ADOPTED BY THE BOARD OF GOVERNORS OF THE BANK , AGAINST WHOM ANY MEMBER STATE , THE COMMISSION OR THE BOARD OF DIRECTORS OF THE BANK MAY INSTITUTE PROCEEDINGS UNDER THE CONDITIONS LAID DOWN IN ARTICLE 173 . IT APPEARS FROM ARTICLE 180 ( B ) THAT THE ACTION SHOULD BE BROUGHT AGAINST THE BOARD OF GOVERNORS OF THE BANK , AS AN ORGAN OF THE BANK , AND NOT AGAINST THE BANK ITSELF .

6 IN THIS CASE , ALTHOUGH THE OPENING WORDS OF THE APPLICATION CITE THE BANK AS DEFENDANT , THE APPLICATION EXPRESSLY REFERS TO ARTICLE 180 ( B ) OF THE EEC TREATY AND STATES AT THE OUTSET THAT THE PURPOSE OF THE ACTION IS TO HAVE ' THE DECISION OF THE BOARD OF GOVERNORS OF THE BANK DECLARED VOID ' . IT IS THEREFORE CLEAR THAT THE ACTION IS DIRECTED AGAINST THE BOARD OF GOVERNORS AS THE RELEVANT ORGAN OF THE BANK , AND THAT THE APPLICATION SATISFIES THE REQUIREMENTS OF ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE .

7 THE APPLICATION SHOULD THEREFORE BE DECLARED ADMISSIBLE AND THE COSTS RESERVED .

ON THOSE GROUNDS ,

THE COURT

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DECLARED ADMISSIBLE .

( 2 ) COSTS ARE RESERVED .