Judgment — ECLI:EU:T:2009:419
Date: 2009-10-29
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products;Public health
Concepts: General;Admissibility and examination of applications, forms of order sought and pleas in law
Procedure: Action for annulment - inadmissible
Origin: United Kingdom

summary of the pleas in law on which the application is based and the form of order sought by the applicant. 36 Although Article 48(2) of the Rules of Procedure authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, that provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the Court and thereby to modify the subject-matter of the proceedings (see Case T‑3/99 Banatrading v Council [2001] ECR II‑2123, paragraph 28 and the case-law cited). 37 Second, it is settled case-law that in order for the Community to incur non-contractual liability, a number of conditions must be satisfied, namely: the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between the alleged conduct and the damage complained of. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (see Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II‑2941, paragraph 80; and the judgment of 19 July 2007 in Case T-344/04 Bouychou v Commission, not published in the ECR, paragraph 33 and the case-law cited). 38 It follows from that case-law that the defendant institution’s act or conduct said to be the cause of the alleged loss forms part of the subject-matter of an action for damages and must be specified in the application. For the same reason, the form of order sought in such an action must be understood as referring to compensation for the loss allegedly caused by the act or conduct complained of in the application. 39 Third, it should be noted that Article 50(1) of Regulation No 178/2002 establishes the RASFF which involves, as members of the network, the Member States, the Commission and the European Food Safety Authority (EFSA), the Commission being responsible for managing the network. In the context of that network, the Member States are to notify the Commission of the measures listed in (a) to (c) of the first subparagraph of Article 50(3), in addition to supplementary information, pursuant to the second paragraph of Article 50(3), in particular where the measures on which the notification is based are modified or withdrawn. The Commission must immediately transmit to members of the network the notification and supplementary information received under the first and second subparagraphs of Article 50(3). However, as a member of the network, the Commission may also transmit to the other members of the network, under Article 50(2) of Regulation No 178/2002, any information it has relating to the existence of a serious direct or indirect risk to human health deriving from food or feed. 40 It is apparent from those provisions that the competent authority of the Member State concerned has sole responsibility for drafting the notifications under Article 50(3) of Regulation No 178/2002, and also for transmitting them to the Commission for communication to the other members of the network. 41 It is admittedly conceivable that, even in a case which is a matter for the national authorities, the Commission may express an opinion, which has no legal effects, however, and is not binding upon those authorities (Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299, paragraph 16, and order of the Court of Justice in Case 151/88 Italy v Commission [1989] ECR 1255, paragraph 22; Case T-160/98 Van Parys and Pacific Fruit Company v Commission [2002] ECR II-233, paragraph 65). Accordingly, a claim for damages based on the fact that the Commission expressed such an opinion is inadmissible (order of the Court of First Instance of 8 September 2006 in Case T‑92/06 Lademporiki and Parousis & Sia v Commission, not published in the ECR, paragraph 26; see also, to that effect, Sucrimex and Westzucker v Commission, paragraphs 22 and 25). 42 In the present case, it should be noted that the email of 20 July 2006 was sent to the FSA in response to its email of 19 July 2006. It is apparent from the latter that the FSA wished to receive comments and suggestions from the Commission, including suggestions as to the alternative wording of the notification. In addition, the FSA emphasised that it intended to issue the notification under the RASFF as soon as possible, and that to that end it wished to receive an early response from the Commission. 43 Accordingly, the email of 20 July 2006 merely expresses the Commission’s opinion in response to a request to that effect from the FSA. Thus, in accordance with the case-law referred to in paragraph 41 above, it is necessary to declare inadmissible, and to dismiss, the claim for damages which is based on the fact that the Commission expressed its opinion, at the FSA’s request, on the text of a notification of supplementary information, within the meaning of the second subparagraph of Article 50(3) of Regulation No 178/2002, which the FSA intended to transmit to the Commission for communication to the other members of the network. 44 As regards the applicant’s request that the notice of 24 August 2006 should also be taken into consideration in support of its claim for damages, it follows from the considerations and the case-law referred to in paragraphs 34 to 36 above that that request must also be dismissed as inadmissible, since it effectively modifies the subject-matter of the proceedings and the form of order initially sought (see also, to that effect, Banatrading v Council, paragraph 36 above, paragraph 29). 45 Contrary to what the applicant claims, that finding cannot be called into question by the fact that, by the order in Bowland Dairy Products v Commission referred to in paragraph 18 above, the President of the Court of First Instance ordered that the notice of 24 August 2006 be withdrawn. In that regard, it is sufficient to note that the order was made in the context of interim proceedings and does not in any way prejudge the outcome of the main proceedings. 46 It follows from all the foregoing that the action for damages must be dismissed as inadmissible. Costs 47 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those of the application for interim measures, in accordance with the form of order sought by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the action as inadmissible; 2. Orders Bowland Dairy Products Ltd to pay the costs, including those relating to the interim proceedings. Vilaras Prek Ciucă Delivered in open court in Luxembourg on 29 October 2009. [Signatures] * Language of the case: English.