# C_2011347EN.01004202.xml

| 26.11.2011 | EN | Official Journal of the European Union | C 347/42 |
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26.11.2011

EN

Official Journal of the European Union

C 347/42

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Action brought on 4 October 2011 — Melkveebedrijf Overenk and Others v Commission

(Case T-540/11)

2011/C 347/76

Language of the case: Dutch

Parties

Parties

Applicants: Melkveebedrijf Overenk B.V. (Sint Anthonis, Netherlands); Maatschap Veehouderij Kwakernaak (Oosterwolde, Netherlands); Mulders Agro VOF (Heerle, Netherlands); Melkbedrijf Engelen V.O.F. (Grashoek, Netherlands), Melkveebedrijf de Peel B.V. (Asten, Netherlands); and M. Moonen (Nederweert, Netherlands) (represented by: P. Mazel and A. van Beelen, lawyers)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | Declare the action admissible; |
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Declare the action admissible;

| — | principally: grant the application for compensation under Article 340 TFEU and declare that the applicants are entitled to financial compensation in the amounts claimed as set out in Annexes 13 to 18, which the Commission is obliged to pay, for the damage suffered by the applicants in consequence of the unlawful adoption and application of Commission Regulation (EC) No 1468/2006 of 4 October 2006 amending Regulation (EC) No 595/2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector; |
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principally: grant the application for compensation under Article 340 TFEU and declare that the applicants are entitled to financial compensation in the amounts claimed as set out in Annexes 13 to 18, which the Commission is obliged to pay, for the damage suffered by the applicants in consequence of the unlawful adoption and application of Commission Regulation (EC) No 1468/2006 of 4 October 2006 amending Regulation (EC) No 595/2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector;

| — | in the alternative: grant the application for compensation under Article 340 TFEU and declare that the applicants are entitled to financial compensation in the amounts claimed as set out in Annexes 13 to 18, which the Commission is obliged to pay, for the damage suffered by the applicants in consequence of the lawful adoption and application of Commission Regulation (EC) No 1468/2006 of 4 October 2006 amending Regulation (EC) No 595/2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector; |
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in the alternative: grant the application for compensation under Article 340 TFEU and declare that the applicants are entitled to financial compensation in the amounts claimed as set out in Annexes 13 to 18, which the Commission is obliged to pay, for the damage suffered by the applicants in consequence of the lawful adoption and application of Commission Regulation (EC) No 1468/2006 of 4 October 2006 amending Regulation (EC) No 595/2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law: non-contractual liability of the Commission arising from an unlawful act on account of an infringement of the fundamental principles of Community law, consisting in a breach of the principle of proportionality. The adjustment by means of Regulation (EC) No 1468/2006 (1) of the negative fat correction system in the detailed rules applying Regulation No 1788/2003 was, from the outset, unsuited to ensuring the achievement of the aims of those regulations — to reduce the imbalance between supply and demand on the milk and milk-product market and resulting structural surpluses — and the adjustment at issue imposes a heavy and disproportionate burden on the applicants, which jeopardises the management of their businesses. Accordingly, there has been an infringement of the principle of proportionality. |
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1.

First plea in law: non-contractual liability of the Commission arising from an unlawful act on account of an infringement of the fundamental principles of Community law, consisting in a breach of the principle of proportionality. The adjustment by means of Regulation (EC) No 1468/2006 (1) of the negative fat correction system in the detailed rules applying Regulation No 1788/2003 was, from the outset, unsuited to ensuring the achievement of the aims of those regulations — to reduce the imbalance between supply and demand on the milk and milk-product market and resulting structural surpluses — and the adjustment at issue imposes a heavy and disproportionate burden on the applicants, which jeopardises the management of their businesses. Accordingly, there has been an infringement of the principle of proportionality.

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| 2. | Second plea in law: non-contractual liability of the Commission arising from an unlawful act on account of an infringement of the fundamental principles of Community law, consisting in a breach of the right to property and the freedom to pursue a trade or profession as referred to in Article 1 of the First Protocol to the European Convention on Human Rights. In adopting Regulation (EC) No 1468/2006, the Commission mistakenly assumed that that regulation was underpinned by a legitimate objective that was in the public interest and, moreover, its assessment of the various interests involved was incomplete, which must be characterised as unlawful conduct. The resulting damage suffered and still being suffered by the applicants must therefore be made good. |
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2.

Second plea in law: non-contractual liability of the Commission arising from an unlawful act on account of an infringement of the fundamental principles of Community law, consisting in a breach of the right to property and the freedom to pursue a trade or profession as referred to in Article 1 of the First Protocol to the European Convention on Human Rights. In adopting Regulation (EC) No 1468/2006, the Commission mistakenly assumed that that regulation was underpinned by a legitimate objective that was in the public interest and, moreover, its assessment of the various interests involved was incomplete, which must be characterised as unlawful conduct. The resulting damage suffered and still being suffered by the applicants must therefore be made good.

| 3. | Third plea in law: non-contractual liability of the Commission arising from a lawful act on account of the infringement of the principle ‘égalité devant les charges publiques’ (equality in the discharge of public burdens). The damage suffered and still being suffered by the applicants as a result of the negative fat correction adjusted by Regulation (EC) No 1468/2006 is real and ongoing, and disproportionately affects the applicants as a special category of undertaking by comparison with other undertakings in the same sector. Furthermore, this damage exceeds the boundaries of commercial risk associated with activities in the sector concerned, and the amending regulation underlying the damage is not justified by a general economic interest. Accordingly, the European Union, or at least the Commission, must make good that damage, or at least provide reasonable compensation. |
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3.

Third plea in law: non-contractual liability of the Commission arising from a lawful act on account of the infringement of the principle ‘égalité devant les charges publiques’ (equality in the discharge of public burdens). The damage suffered and still being suffered by the applicants as a result of the negative fat correction adjusted by Regulation (EC) No 1468/2006 is real and ongoing, and disproportionately affects the applicants as a special category of undertaking by comparison with other undertakings in the same sector. Furthermore, this damage exceeds the boundaries of commercial risk associated with activities in the sector concerned, and the amending regulation underlying the damage is not justified by a general economic interest. Accordingly, the European Union, or at least the Commission, must make good that damage, or at least provide reasonable compensation.

égalité devant les charges publiques

| 4. | Fourth plea in law: non-contractual liability of the Commission arising from a lawful act on account of a breach of the right to property and the freedom to pursue a trade or profession as referred to in Article 1 of the First Protocol to the European Convention on Human Rights. Owing to the lack of any legitimate public-interest objective for the fat correction adjustment, breach of the requisite ‘fair balance’ in the adoption of Regulation (EC) No 1468/2006 and the Commission’s failure to make provision in that regard for appropriate compensation to prevent or to make good any adverse effect of that regulation on the rights to property of the ‘vetmelkers’ (high-fat milk producers) concerned and damage arising therefrom, the Commission is liable under Article 340 TFEU for the damage actually suffered and still being suffered by the applicants for which compensation is payable. |
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4.

Fourth plea in law: non-contractual liability of the Commission arising from a lawful act on account of a breach of the right to property and the freedom to pursue a trade or profession as referred to in Article 1 of the First Protocol to the European Convention on Human Rights. Owing to the lack of any legitimate public-interest objective for the fat correction adjustment, breach of the requisite ‘fair balance’ in the adoption of Regulation (EC) No 1468/2006 and the Commission’s failure to make provision in that regard for appropriate compensation to prevent or to make good any adverse effect of that regulation on the rights to property of the ‘vetmelkers’ (high-fat milk producers) concerned and damage arising therefrom, the Commission is liable under Article 340 TFEU for the damage actually suffered and still being suffered by the applicants for which compensation is payable.

vetmelkers

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(1)  Commission Regulation (EC) No 1468/2006 of 4 October 2006 amending Regulation (EC) No 595/2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector (OJ 2006 L 274, p. 6).

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