# C_2010195EN.01001001.xml

| 17.7.2010 | EN | Official Journal of the European Union | C 195/10 |
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17.7.2010

EN

Official Journal of the European Union

C 195/10

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Appeal brought on 7 May 2010 by Brigit Lind against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-5/09: Brigit Lind v European Commission

(Case C-222/10 P)

2010/C 195/15

Language of the case: English

Parties

Parties

Appellant: Brigit Lind (represented by: I. Anderson, Advocate)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing her Application as manifestly inadmissible with costs. |
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Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing her Application as manifestly inadmissible with costs.

th

| — | Retain jurisdiction over Appellant's Appeal and ordering the Commission to pay Appellant;






  (a) | the sum of EUR 50,000 or such other sum as the Court may consider just and equitable for her shock and distress at her brother's suffering and death as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule special intervention teams. |
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Retain jurisdiction over Appellant's Appeal and ordering the Commission to pay Appellant;

(a)

the sum of EUR 50,000 or such other sum as the Court may consider just and equitable for her shock and distress at her brother's suffering and death as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule special intervention teams.

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| (b) | Payment to the Estate of John Erling Nochen;






  (i) | the sum of EUR 250,000, or such other sum as the Court may consider just and equitable for his suffering from 2006 until his death in 2008 from lung cancer as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule intervention teams. |
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(b)

Payment to the Estate of John Erling Nochen;

(i)

the sum of EUR 250,000, or such other sum as the Court may consider just and equitable for his suffering from 2006 until his death in 2008 from lung cancer as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule intervention teams.

| (ii) | Funeral costs in the amount of EUR 6,000. |
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(ii)

Funeral costs in the amount of EUR 6,000.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of her claims and her pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy. |
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1.

The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of her claims and her pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy.

| 2. | Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty. |
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2.

Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty.

| 3. | Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.
  The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party. |
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3.

Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.

The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party.

| 4. | Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.
  The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle. |
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4.

Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.

The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle.

| 5. | Failure to Consider Whether the Commission's Refusal Violated a Superior Law.
  With the incorporation of the European Convention of Human Rights into EU jurisprudence, the Court erred in failing to consider whether the Commission's refusal to enforce the medical monitoring provisions of Directive 96/29 violated Article 2 of the Convention by knowingly placing the life of Appellant's brother at risk to the un-checked and un-monitored development of long term radiation cancers, such as the cancer which killed him. |
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5.

Failure to Consider Whether the Commission's Refusal Violated a Superior Law.

With the incorporation of the European Convention of Human Rights into EU jurisprudence, the Court erred in failing to consider whether the Commission's refusal to enforce the medical monitoring provisions of Directive 96/29 violated Article 2 of the Convention by knowingly placing the life of Appellant's brother at risk to the un-checked and un-monitored development of long term radiation cancers, such as the cancer which killed him.

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(1)  Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation

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OJ L 159, p. 1

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