# C_2016251EN.01001401.xml

| 11.7.2016 | EN | Official Journal of the European Union | C 251/14 |
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11.7.2016

EN

Official Journal of the European Union

C 251/14

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Appeal brought on 26 April 2016 by Darko Graf against the judgment of the General Court (Second Chamber) delivered on 26 February 2016 in Case T-507/14 Vedran Vidmar and Darko Graf v European Commission

(Case C-241/16 P)

(2016/C 251/16)

Language of the case: Croatian

Parties

Parties

Appellant: Darko Graf (represented by: L. Duvnjak, odvjetnik)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Set aside in its entirety the judgment of the General Court delivered on 26 February 2016 in Case T-507/14 and uphold the claims made by the appellant in his application of 1 July 2014 in the proceedings at first instance and order the European Commission to pay to the appellant all the costs of the present proceedings. |
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Set aside in its entirety the judgment of the General Court delivered on 26 February 2016 in Case T-507/14 and uphold the claims made by the appellant in his application of 1 July 2014 in the proceedings at first instance and order the European Commission to pay to the appellant all the costs of the present proceedings.

| — | In the alternative, set aside in its entirety the judgment of the General Court delivered on 26 February 2016 in Case T-507/14 and refer the case back to the General Court for it to rule afresh and order the European Commission to pay to the appellant all the costs of the present proceedings. |
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In the alternative, set aside in its entirety the judgment of the General Court delivered on 26 February 2016 in Case T-507/14 and refer the case back to the General Court for it to rule afresh and order the European Commission to pay to the appellant all the costs of the present proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant disputes the following parts of the judgment under appeal:

| — | paragraph 40, in which it is stated that active illegal conduct on the part of an EU institution is only one of the elements necessary for the European Union to incur non-contractual liability for damages, inasmuch as that statement by the General Court is contrary to the second paragraph of Article 340 of the Treaty on the Functioning of the European Union and the case-law of the Court of Justice of the European Union (judgment of the Court of Justice of the European Union of 19 May 1992 in Mulder v Council and Commission, Joined Cases C-104/89 and C-37/90); |
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paragraph 40, in which it is stated that active illegal conduct on the part of an EU institution is only one of the elements necessary for the European Union to incur non-contractual liability for damages, inasmuch as that statement by the General Court is contrary to the second paragraph of Article 340 of the Treaty on the Functioning of the European Union and the case-law of the Court of Justice of the European Union (judgment of the Court of Justice of the European Union of 19 May 1992 in Mulder v Council and Commission, Joined Cases C-104/89 and C-37/90);

Mulder

Council and Commission

| — | paragraph 47, in which, contrary to what is set out in Article 36 and Annex VII of the Act of Accession of the Republic of Croatia (‘RC’) to the European Union (‘EU’), the commitments that were undertaken by the RC with regard to the EU during the accession negotiations were referred to incorrectly as ‘principles’, since the present case does not involve any principles but rather the 11 specific commitments agreed by the RC with the EU and which came into force on 9 December 2011; |
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paragraph 47, in which, contrary to what is set out in Article 36 and Annex VII of the Act of Accession of the Republic of Croatia (‘RC’) to the European Union (‘EU’), the commitments that were undertaken by the RC with regard to the EU during the accession negotiations were referred to incorrectly as ‘principles’, since the present case does not involve any principles but rather the 11 specific commitments agreed by the RC with the EU and which came into force on 9 December 2011;

| — | paragraphs 48 to 52, inasmuch as Article 36 and point 1 of Annex VII to the Act of Accession of the RC to the EU came into force on 9 December 2011 when the Judicial Reform Strategy of the Republic of Croatia for the period 2011-2015 and the Revised Action Plan of the Government of the Republic of Croatia for Judicial Reform were in force and applicable from 15 December 2010 and 20 May 2010, respectively, and, consequently, after the repeal of those legal acts by the RC — which acts had been previously expressly authorised by the Commission in section 3 of the Comprehensive Monitoring Report on the RC of 10 October 2012 in which the RC was urged to adopt new legislation on enforcement — and contrary to the general principles of law on the protection of legitimate expectations and legal certainty, since with regard to the appellant the repeal of the legal acts referred to had an obvious retroactive effect in that after 9 December 2012 the RC did not adopt any new judicial reform strategy but merely a Strategy for the Development of the Judicial System for the period 2013-2018, and, therefore, the last Judicial Reform Strategy in fact adopted by the Republic of Croatia was that in force on 9 December 2011 (see judgment of the Court of Justice of 30 January 1974 in Louwage v Commission, 148/73, paragraphs 12 and 28; judgment of the General Court of 17 December 1998 in Embassy Limousines & Services v Parliament, T-203/96, paragraphs 74 to 88; and judgment of the Court of Justice of 14 May 1975 in CNTA v Commission, 74/74, paragraphs 41 to 44), it being noted that the General Court recognises, in paragraph 53 of the judgment under appeal, in stating that ‘it may not be inferred that the Croatian authorities ... were entirely free to amend the Judicial Reform Strategy 2011-2015 and the Action Plan 2010. Having regard to the provisions of the Act of Accession and, in particular, Article 36 thereof and Annex VII thereto, those authorities were obliged to comply not only with Commitment No 1, but also with all the other commitments set out in that annex’, the pertinence of the claim for damages that is set out in the application; |
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paragraphs 48 to 52, inasmuch as Article 36 and point 1 of Annex VII to the Act of Accession of the RC to the EU came into force on 9 December 2011 when the Judicial Reform Strategy of the Republic of Croatia for the period 2011-2015 and the Revised Action Plan of the Government of the Republic of Croatia for Judicial Reform were in force and applicable from 15 December 2010 and 20 May 2010, respectively, and, consequently, after the repeal of those legal acts by the RC — which acts had been previously expressly authorised by the Commission in section 3 of the Comprehensive Monitoring Report on the RC of 10 October 2012 in which the RC was urged to adopt new legislation on enforcement — and contrary to the general principles of law on the protection of legitimate expectations and legal certainty, since with regard to the appellant the repeal of the legal acts referred to had an obvious retroactive effect in that after 9 December 2012 the RC did not adopt any new judicial reform strategy but merely a Strategy for the Development of the Judicial System for the period 2013-2018, and, therefore, the last Judicial Reform Strategy in fact adopted by the Republic of Croatia was that in force on 9 December 2011 (see judgment of the Court of Justice of 30 January 1974 in Louwage v Commission, 148/73, paragraphs 12 and 28; judgment of the General Court of 17 December 1998 in Embassy Limousines & Services v Parliament, T-203/96, paragraphs 74 to 88; and judgment of the Court of Justice of 14 May 1975 in CNTA v Commission, 74/74, paragraphs 41 to 44), it being noted that the General Court recognises, in paragraph 53 of the judgment under appeal, in stating that ‘it may not be inferred that the Croatian authorities ... were entirely free to amend the Judicial Reform Strategy 2011-2015 and the Action Plan 2010. Having regard to the provisions of the Act of Accession and, in particular, Article 36 thereof and Annex VII thereto, those authorities were obliged to comply not only with Commitment No 1, but also with all the other commitments set out in that annex’, the pertinence of the claim for damages that is set out in the application;

Louwage

Commission

Embassy Limousines & Services

Parliament

CNTA

Commission

| — | paragraphs 54 to 57 and 59 to 63, relating to the failure by the European Commission to fulfil the obligation, under Article 36 of the Act of Accession of the RC to the EU, to ensure the fulfilment of the obligation on the RC under point 3 of Annex VII to the Act of Accession to continue to improve the efficiency of the judiciary, inasmuch as it is apparent from the annexes to the application that the Commission presented information from the Ministry of Justice of the RC that was incorrect in relation to the decrease in the number of disputes and enforcement cases pending in the municipal and commercial courts in its monitoring tables for the period between 1 September 2012 and 28 February 2013, without carrying out any technical or arithmetical checks in relation to its analysis, thereby revealing a flagrant lack of care with regard to the importance of the drawing up of those tables; |
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paragraphs 54 to 57 and 59 to 63, relating to the failure by the European Commission to fulfil the obligation, under Article 36 of the Act of Accession of the RC to the EU, to ensure the fulfilment of the obligation on the RC under point 3 of Annex VII to the Act of Accession to continue to improve the efficiency of the judiciary, inasmuch as it is apparent from the annexes to the application that the Commission presented information from the Ministry of Justice of the RC that was incorrect in relation to the decrease in the number of disputes and enforcement cases pending in the municipal and commercial courts in its monitoring tables for the period between 1 September 2012 and 28 February 2013, without carrying out any technical or arithmetical checks in relation to its analysis, thereby revealing a flagrant lack of care with regard to the importance of the drawing up of those tables;

| — | paragraph 68, in that the Commission, in failing to fulfil its obligation, derived from the first and second subparagraphs of Article 36 of the Act of Accession of the RC to the EU, to ensure the fulfilment of the commitment by the RC to establish the Croatian public enforcement officer service on 1 January 2012, also failed to fulfil its obligation, under Article 17 TEU, to ensure the application of the Treaty of Accession of the RC to the EU, which is one of the basic treaties of the EU; |
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paragraph 68, in that the Commission, in failing to fulfil its obligation, derived from the first and second subparagraphs of Article 36 of the Act of Accession of the RC to the EU, to ensure the fulfilment of the commitment by the RC to establish the Croatian public enforcement officer service on 1 January 2012, also failed to fulfil its obligation, under Article 17 TEU, to ensure the application of the Treaty of Accession of the RC to the EU, which is one of the basic treaties of the EU;

| — | paragraphs 69 to 82, inasmuch as it was in no way necessary that there be subsequent consistent and express action by the Commission in order to give rise to legitimate expectations on the part of the appellant after 9 December 2012, since the appellant’s legitimate expectations had arisen before that date. |
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paragraphs 69 to 82, inasmuch as it was in no way necessary that there be subsequent consistent and express action by the Commission in order to give rise to legitimate expectations on the part of the appellant after 9 December 2012, since the appellant’s legitimate expectations had arisen before that date.

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