| | ECJR-38 (Rules of Procedure)Application    
| ECJ (Rules of Procedure) | Article 38 | 1. An application of the kind referred to in Article 21 of the Statute shall state:
(a) the name and address of the applicant;
(b) the designation of the party against whom the application is made;
(c) the subject-matter of the proceedings and a summary of the pleas in law on which the application is based;
(d) the form of order sought by the applicant;
(e) where appropriate, the nature of any evidence offered in support.
2. For the purpose of the proceedings, the application shall state an address for service in the place where the Court has its seat and the name of the person who is authorised and has expressed willingness to accept service.
In addition to, or instead of, specifying an address for service as referred to in the first subparagraph, the application may state that the lawyer or agent agrees that service is to be effected on him by telefax or other technical means of communication.
If the application does not comply with the requirements referred to in the first and second subparagraphs, all service on the party concerned for the purpose of the proceedings shall be effected, for so long as the defect has not been cured, by registered letter addressed to the agent or lawyer of that party. By way of derogation from Article 79(1), service shall then be deemed to be duly effected by the lodging of the registered letter at the post office of the place where the Court has its seat. 22
3. The lawyer acting for a party must lodge at the Registry a certificate that he is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement.
4. The application shall be accompanied, where appropriate, by the documents specified in the second paragraph of Article 21 of the Statute.
5. An application made by a legal person governed by private law shall be accompanied by: (a) the instrument or instruments constituting or regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law; (b) proof that the authority granted to the applicant's lawyer has been properly conferred on him by someone authorised for the purpose.
6. An application submitted under Articles 238 and 239 of the EC Treaty and Articles 153 and 154 of the EAEC Treaty shall be accompanied by a copy of the arbitration clause contained in the contract governed by private or public law entered into by the Communities or on their behalf, or, as the case may be, by a copy of the special agreement concluded between the Member States concerned.
7. If an application does not comply with the requirements set out in paragraphs 3 to 6 of this Article, the Registrar shall prescribe a reasonable period within which the applicant is to comply with them whether by putting the application itself in order or by producing any of the abovementioned documents. If the applicant fails to put the application in order or to produce the required documents within the time prescribed, the Court shall, after hearing the Advocate General, decide whether the non-compliance with these conditions renders the application formally inadmissible. |
| Case | Pte | Ref | Text | | C-412/04 | 103-106 | G2-impl [C3-2]
S2-impl [C3-2]
W2-impl [C3-2]
ECT-43
ECT-49
ECJR-38.1.c | 103. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision, that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (Case C-195/04 Commission v Finland [2007] ECR I3351, paragraph 22).
104. In this case, the Commission's application does not satisfy those requirements so far as the present complaint is concerned.
105. By its application, the Commission seeks a declaration that the Italian Republic has failed to fulfil obligations under Directives 92/50, 93/36, 93/37 and 93/38 and Articles 43 EC and 49 EC. In the sixth complaint, it fails to state precisely which of those directives and/or provisions of the Treaty the Italian Republic is supposed to have infringed by allegedly infringing the principle of equal treatment.
106. Moreover, as far as concerns Articles 43 EC and 49 EC, those articles do not lay down a general obligation of equal treatment but contain, as is clear from the case-law cited in paragraph 66 of this judgment, a prohibition on discrimination on the basis of nationality. The Commission does not give any particulars regarding the existence of such discrimination in this complaint. 107. Therefore, the sixth complaint must be declared inadmissible. | C-195/04
Finland | 22-32 | ECJR-38.1.c
ECT-226 | 22. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice, and from the case-law relating to that provision, that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (Case C178/00 Italy v Commission [2003] ECR I-303, paragraph 6, judgment of 14 October 2004 in Case C55/03 Commission v Spain , not published in the ECR, paragraph 23, and Case C199/03 Ireland v Commission [2005] ECR I8027, paragraph 50) and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (Case C296/01 Commission v France [2003] ECR I13909, paragraph 121, and Case C255/04 Commission v France [2006] ECR I5251, paragraph 24).
23. In the present case, however, the Commission's application does not fulfil those requirements.
24. By its action, the Commission seeks a declaration that the Republic of Finland failed to comply with its obligations under Article 28 EC on the ground that, in the context of a contract for catering equipment, Senaatti-kiinteistöt infringed fundamental Treaty rules and in particular the principle of non-discrimination, which implies an obligation of transparency.
25. As the Advocate General points out in point 45 of her Opinion, the heads of claim as formulated in the application are ambiguous and do not enable the Court to identify clearly and precisely the misconduct which the Commission imputes to the Republic of Finland, since it brackets together Article 28 EC, fundamental Treaty provisions, the principle of non-discrimination and the obligation of transparency.
26. In addition, even if the Commission's action were intended to obtain a declaration of infringement of Article 28 EC, neither the heads of claim of the application nor the submissions made in the body of the application identify with clarity and precision which measure is alleged in the present case to constitute a quantitative restriction on imports or a measure having equivalent effect within the meaning of that article.
27. In fact, the Commission merely calls into question the contracting authority's conduct in the context of a contract for catering equipment'.
28. Furthermore, at no point in the proceedings was the Commission able to state coherently and precisely the facts which provide the basis for the objections on which it relies in support of its application.
29. Thus, in its application the Commission does not furnish any precise evidence in relation to the first call for tenders, but merely states that it was unsuccessful in relation to the acquisition of catering equipment'.
30. In that respect, neither the submissions made in the body of the application nor the Commission's replies to the Court's questions at the hearing enable the Court to establish with certainty whether a tender for the supply and installation of catering equipment was submitted to the contracting authority in the context of the call for tenders.
31. By the same token, in its reply the Commission asserts - without, however, demonstrating the truth of that assertion - that at least one of the undertakings which submitted such a tender was not one of the four undertakings contacted by the contracting authority in 2000, and that the lot relating to the supply and installation of catering equipment which was part of the contract announced in the initial call for tenders did not have the same subject-matter as the contract which gave rise to the contacts made during the same year.
32. In those circumstances, the Court does not have sufficient evidence to enable it to appreciate exactly the scope of the infringement of Community law imputed to the Republic of Finland and thus to determine whether there is a breach of obligations as alleged by the Commission (see, to that effect, Commission v United Kingdom , cited above, paragraph 18).
33. Consequently, the action must be dismissed as inadmissible. | C-57/01
Makedoniko | 32-37 | ECJR-61 | 32 By letter of 15 July 2002, Makedoniko Metro requested that the oral procedure be reopened `so that further information about the subject-matter of the national procedure giving rise to the questions referred for a preliminary ruling could be given to the Court'.
33 Makedoniko Metro supports its request by disputing, inter alia, point 35 of the Advocate General's Opinion, in which she reformulates the question referred for a preliminary ruling, and point 79 of the Opinion, which explains the subject-matter of the question. In Makedoniko Metro's submission, the Advocate General was wrong to conclude that the national authorities took a decision excluding Makedoniko Metro from the procedure for the award of the contract at issue on the grounds of the change in its composition. The contracting authority at no time took a decision to exclude Makedoniko Metro from the procedure on the grounds of the change in its composition and, consequently, such a decision could not form the subject-matter of the main proceedings.
34 It is appropriate to bear in mind that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 30, and Case C-299/99 Philips [2002] ECR I-5475, paragraph 20).
35 As regards Makedoniko Metro's arguments, it must nevertheless be observed, first, that, in accordance with settled case-law, the Court may, where appropriate, reformulate a question referred for a preliminary ruling in order to avoid exceeding its jurisdiction and to provide the referring court with an answer that will be of assistance to it (see, to that effect, Case C-17/92 Distribuidores Cinematograficos [1993] ECR I-2239, paragraph 8, and Case C-107/98 Teckal [1999] ECR I-8121, paragraph 33) and, second, that it is for the national court to decide what forms the subject-matter of the main proceedings.
36 The submissions which Makedoniko Metro seeks to put forward in the course of a reopened oral procedure relate solely to questions falling within the jurisdiction of the referring court.
37 Having regard to those considerations, the Court, after hearing the Advocate General, concludes that there is nothing in Makedoniko Metro's request to indicate that it is necessary to reopen the oral procedure or that it would serve any useful purpose to do so. |
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