EN Official Journal of the European Union C 22/19

Appeal brought on 24 September 2007 by the Commission of the European Communities against the judgment delivered on 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission

(Case C-440/07 P)

(2008/C 22/38)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: M. Petite and F. Arbault, Agents)

Other parties to the proceedings: Schneider Electric SA, Federal Republic of Germany, French Republic

Form of order sought

The appellant claims that the court should:

— set aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission;

— order Schneider Electric SA to pay all the Commission's costs.

Pleas in law and main arguments

Noting, first of all, that three cumulative conditions are necessary for the Community's non-contractual liability to be incurred, namely, respectively, a wrongful act or omission, that of actual and certain damage and a direct causal link between the wrongful act or omission and the damage, the applicant raises seven grounds in support of its appeal.

By its first ground of appeal, the Commission claims that, by finding, first, that the Commission ‘omitted’ to formulate the complaint of buttressing of the positions of Schneider and Legrand in its statement of objections of 3 August 2001 and, second, that such formulation presented ‘no particular technical difficulty’, the Court of First Instance disregarded the authority of a judgment delivered but still possibly subject to appeal, made materially incorrect findings, distorted the evidence submitted to its evaluation and failed in its duty to state reasons for its judgments.

By its second ground of appeal, the Commission maintains that the Court of First Instance erroneously described the facts, made an error of law and failed in its duty to state reasons in holding that the procedural error found in the judgment of 22 October 2002 in Case T-310/01 Schneider Electric v Commission was a ‘sufficiently serious’ breach of a rule of law the object of which was to confer rights on individuals.

By its third ground of appeal, the Commission alleges that the Court of First Instance made materially mistaken findings, distorted the evidence, erroneously described the facts in question and made an error of law in holding that there was a ‘sufficiently direct causal link’ between the wrongful act or omission and the second head of damage pleaded, namely the anticipated conclusion of Schneider's negotiations with Wendel-KKR on the transfer price of Legrand SA.

By its fourth ground of appeal, the Commission complains that the Court of First Instance was in breach of its duty to state reasons by reason of a contradiction in the grounds vitiating its reasoning concerning the causal link between the wrongful act or omission and the various heads of damage pleaded.

By its fifth ground of appeal, the Commission maintains that the Court of First Instance made materially incorrect findings of fact, distorted the evidence and made an error of law in not concluding that Schneider contributed to the entirety of the second head of damage pleaded. That undertaking failed in several respects in its duty to take reasonable care to avoid the damage or mitigate its extent, particularly by failing to bring an interlocutory application in regard to the obligation to transfer Legrand to which it claims to have been made subject and by having chosen to transfer that undertaking at a time when it was not, anyway, subject to any obligation to do so.

By its sixth ground of appeal, the Commission complains that the Court of First Instance made rulings beyond those sought, misapplied the rules governing the burden of proof and infringed the rights of the defence by identifying a head of damage which was not pleaded by the applicant undertaking.

By its seventh and last ground of appeal, the Commission alleges that the Court of First Instance made an error of law in awarding Schneider compensatory interest from the accrual of the second head of damage on 10 December 2002.