EN Official Journal of the European Union C 13/3

Appeal brought on 26 September 2011 by Fuchshuber Agrarhandel GmbH against the order of the General Court (Second Chamber) delivered on 21 July 2011 in Case T-451/10 Fuchshuber Agrarhandel GmbH v Commission

(Case C-491/11 P)

2012/C 13/07

Language of the case: German

Parties

Appellant: Fuchshuber Agrarhandel GmbH (represented by: G. Lehner, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— conduct a hearing;

— order the European Commission to pay the appellant within 14 days the sum of EUR 2 623 282,31, together with interest of 6 % per annum on the sum of EUR 1 641 372,50 from 24 September 2007 and interest of 6 % per annum on the sum of EUR 981 909,81 from 16 October 2007;

— declare that the European Commission is obliged to compensate the appellant for any further losses in connection with lot KUK459 awarded on 3 September 2007 and lot KUK465 awarded on 17 September 2007;

— rule that the European Commission is to pay the appellant’s costs to the appellant’s lawyer within 14 days.

Pleas in law and main arguments

The appeal is directed against an order of the General Court, by which it dismissed, due to lack of any foundation in law, an action for damages in respect of the loss allegedly incurred by the applicant and appellant because the Commission did not check the conditions for the implementation of standing invitations to tender for the resale on the Community market of cereals, in this case maize, held by the Hungarian intervention agency.

The General Court’s interpretation of the law, according to which the Commission cannot be accused of any unlawful conduct, is incorrect as the case-law (1) cited by the General Court cannot be applied to the present case.

Contrary to the interpretation of the General Court, it follows from the relevant provisions (2) that standing invitations to tender for the resale of cereals held by the intervention agencies of the Member States are to be managed by the Commission. In doing so, the Commission has both the competence to take decisions and a duty to conduct checks. (3) There was no discretion on the part of those intervention agencies.

The Commission’s duty to conduct checks serves not only to protect the financial interests of the European Union, but also to protect the interests of individual market participants. Regulation No 884/2006 (4) sets out in specific terms the duty to conduct checks, to the effect that all intervention stores are to be checked at least once a year by the paying agencies in respect of proper conservation and the integrity of intervention stocks and a copy of the inspection reports must then be sent to the Commission. Those provisions were grossly disregarded in the present case.

The Commission’s failure to exercise its powers of inspection prior to the invitation to tender at issue in the present case thus constitutes an aggravated and serious breach of duty.

In addition, the General Court made procedural errors in that it classified the statement of facts provided by the present appellant as incorrect without any taking of evidence and without a hearing.

(1) Judgment of the Court of 1 January 2001 in Case C-247/98 Commission v Greece and judgment of the General Court of 13 November 2008 in Case T-224/04 Italy v Commission.

(2) In particular Articles 6 and 24 of Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (OJ 2003 L 270, p. 78).

(3) Article 37 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).

(4) Commission Regulation (EC) No 884/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the financing by the European Agricultural Guarantee Fund (EAGF) of intervention measures in the form of public storage operations and the accounting of public storage operations by the paying agencies of the Member States (OJ 2006 L 171, p. 35).