EN Official Journal of the European Union C 328/20

Action brought on 4 August 2015 — Consorzio Vivaisti viticoli pugliesi and Negro v Commission

(Case T-436/15)

(2015/C 328/21)

Language of the case: Italian

Parties

Applicants: Consorzio Vivaisti viticoli pugliesi (Otranto, Italy); and Negro Daniele (Otranto) (represented by: V. Pellegrino and A. Micolani, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— first, suspend the measure, in so far as concerns the applicants’ interest, pursuant to Article 278 TFEU;

— find and declare that Commission Implementing Decision No 2015/789 is unlawful, in particular Article 9 thereof and Annex 1 thereto, to the extent that they classify the Vitis species among those susceptible to the European and non-European isolates of Xylella fastidiosa and therefore prohibit movement of that species ‘within the Union, within or out of the demarcated area’, and accordingly annul that decision in so far as it concerns the applicants’ interest;

— order the defendant to pay the costs of the proceedings;

— order any other measures which the Court may consider necessary, such as further investigation, including by EFSA.

Pleas in law and main arguments

In support of their claims, the applicants allege infringement of the principle of proportionality and Article 5 TEU and Article 296 TFEU, as well as essential procedural requirements, in the form of failure to give reasons or incorrect reasons; they also allege misuse of powers on the grounds of incorrect assumptions in matters of fact and law, failure to conduct a proper investigation and inherent inconsistency.

The applicants submit that the action has its origins in studies carried out by researchers at the National Research Council (CNR) of Bari, which, in the light of observations, tests and experiments, in the field and in the laboratory, show that:

— the bacterium isolated in Salento is a different subspecies and strain from that widely held to be responsible for plant diseases in grapevines on continents other than Europe;

— since 2013, grapevine varieties grown in the province of Lecce have shown no symptoms of either Pierce’s disease or any other pathological desiccation;

— in the same period with regard to the same grapevine varieties, no trace of the bacterium has been detected, not even in areas close to and in direct contact with infected olive trees;

— laboratory tests on grapevines (via inoculum or contact with the vector) have all produced a negative result, both with regard to the development of the infection and the presence of the bacterium in asymptomatic forms.

The inclusion of grapevines on the list of specified plants is, in the applicants’ view, manifestly unlawful since it does not take into account the findings of the investigations which reveal that grapevines are clearly immune to the bacterium present in the infected area.

The applicants also argue that the decision is inconsistent since, following EFSA’s initial opinion of 26 November 2013, which acknowledged that little was known about the Xylella fastidiosa strain in Salento, the Commission did not include grapevines on the list of susceptible plants in the earlier decisions Nos 87 and 497 of 2014, but surprisingly went on to include them and prohibit their movement even though it had received more detailed studies from EFSA and the Italian authorities showing their immunity to the bacterium isolate in Salento.