Case T-391/02: Action brought on 24 December 2002 by the Bundesverband der Nahrungsmittel- und Speiseresteverwertung e.V. and Josef Kloh against the European Parliament and the Council of the European Union
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: Council of the European Union, European Parliament, action for annulment (EU), animal product, derogation from EU law, disease prevention, health legislation, scientific report, waste recycling

C 44/42

EN

Official Journal of the European Union

22.2.2003

Action brought on 24 December 2002 by Antonio Cagna-
to against the Court of Justice of the European Communi-
ties

Action brought on 24 December 2002 by the Bundesver-
band der Nahrungsmittel- und Speiseresteverwertung e.V.
and Josef Kloh against the European Parliament and the
Council of the European Union

(Case T-390/02)

(2003/C 44/78)

(Language of the case: French)

(Case T-391/02)

(2003/C 44/79)

(Language of the case: German)

Justice of

the European
An action against the Court of
Communities was brought before the Court of First Instance
of the European Communities on 24 December 2002 by
Antonio Cagnato, residing in Dippach-Gare (Luxembourg),
represented by Juan Ramon Iturriagagoitia and Karine Delvol-
vé, lawyers.

The applicant claims that the Court should:

— annul the decision of the Court of Justice given on
24 September 2002 and concerning the complaint lodged
by the applicant on 25 January 2002 against the decision
of 25 October 2001;

— order the defendant to pay the applicant compensation
for the damage and non-material damage of every kind
that he has suffered as a result of his being exposed to
asbestos when carrying out his duties at the Palais de
Justice of the Court of First Instance and the Court of
Justice of the European Communities, estimated at a sum
of EUR 350 000, subject to all necessary reservations;

— order the defendant to pay all the costs.

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Insurance of the European Communities on 24 December
2002 by the Bundesverband der Nahrungsmittel- und Speisere-
steverwertung e.V., Bochum (Germany), and Josef Kloh, Eich-
enried (Germany), represented by R. Steiling and S. von
Zimmermann-Wienhues.

The applicants claim that the Court should:

— annul Article 32(2) of Regulation (EC) No 1774/2002 of
the European Parliament and of the Council of 3 October
2002 laying down health rules concerning animal by-
products not intended for human consumption (1) in so
far as transitional measures under Article 32(1) of the
regulation are permitted for no more than four years
from 1 November 2002;

— order the defendants to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant, an official of the Court of Justice, challenges
that institution’s refusal to compensate him for the damage
suffered as a result of his occupational disease, which has
already been recognised by decision of the appointing auth-
ority of 31 May 2001, adopted under Article 73 of the Staff
Regulations, and on the basis of which a sum was paid to him.

The pleas relied on in support of this application are similar to
those in Case T 255/02 H v Court of Justice (OJ C 274 of
9.11.2002, p. 26).

The action challenges the time-limit on transitional measures
which may be adopted under Article 32 of the contested
regulation in the case of Member States with a secure system
for processing food and kitchen waste [catering waste].

1.

The imposition of a time-limit exceeds the bounds of the
Parliament’s and the Council’s discretion; it runs counter
to the principle of subsidiarity (Article 5(2) EC) and the
principle of proportionality (Article 5(3) EC).

In matters of Community health and hygiene law the
institutions do not enjoy wide political discretion:
decisions must be based on scientific evidence. There is

22.2.2003

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Official Journal of the European Union

C 44/43

no scientific evidence that the processing of food waste,
as performed in the Federal Republic of Germany under
stricter conditions in recent years, presents a risk of
contamination. The risk is, on the contrary, reduced
because illegal disposal and use as feed is prevented and
food and kitchen waste are subject to treatment which
destroys pathogens to a scientifically proven degree.
There are adequate measures of control to ensure com-
pliance with those legal requirements and the constituents
of animal feed are traceable. The system used in the
Federal Republic of Germany for the collection and
treatment of food waste and its processing into feed thus
already meets the objectives of the regulation and there
was no need for any wider authorisation in Community
law. The possibility of extending the duration of dero-
gations should have been made dependent on scientific
evidence.

2.

3.

It is incompatible with the general principle of equality
for the inflexible time restriction placed on derogating
provisions to treat the various systems used in the
Member States for processing food waste, and in particu-
lar the processing into feed of food waste adequately
treated or not, as being the same. There is no justification
for that in the principle governing the regulation, which
is the prevention of contamination. Scientific evidence
showed clearly that the way in which food waste was
treated in the Federal Republic of Germany was sufficient
to avoid the spread of pathogens.

The time-limit imposed for derogations is an unjustified
encroachment on freedom of property and freedom to
pursue an occupation, and on freedom as to how business
is run, because the member undertakings of plaintiffs 1
and 2 are entitled to special protection of their right to
rely on being able to pursue their activities and continue
to use their facilities — most of which have been only
recently modernised. Their facilities and their activities
have been brought into compliance with stringent legal
requirements which are based on scientific evidence. They
must therefore be able to rely on being able to continue
to pursue their activities and use their facilities as long as
they keep to those stricter requirements and no new
scientific evidence is available. In addition, the regulation’s
provisions take no account of the fact that as a rule it is
not possible for the food waste processors concerned to
alter the use of their facilities and business premisses.

( 1) OJ 2002 L 273, p. 1.

Action brought on 30 December 2002 by Linea Gig S.r.l.
(in liquidation) against the Commission of the European
Communities

(Case T-398/02)

(2003/C 44/80)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 December 2002 by Linea Gig
(in liquidation), represented by Lucio D’Amario and
S.r.l.
Bruno Lazia, Lawyers.

The applicant claims that the Court should:

— annul the contested decision, in whole or in so far as it

concerns the applicant;

— in the alternative, annul Article 3 of the decision in so far

as it imposes a fine on the applicant;

— in the further alternative, reduce the amount of the fine

imposed on the applicant;

— order the Commission to pay the costs;

— order the Commission to reimburse the whole of the
costs incurred by the applicant in the administrative
proceedings.

Pleas in law and main arguments

The present action is directed against the Decision of 30 Octo-
ber 2002 COMP/35.587 PO Video Games, COMP/35.706 PO
Nintendo Distribution and COMP/36.321 Omega-Nintendo
doc. C(2000) 4072 final, wherein the Commission found that
the applicant had infringed Article 81(1) EC and Article 53(1)
of the EEA agreement as a result of its involvement, during the
period from 1 October 1992 to the end of December 1997, in
a series of agreements and concerted practices in the market
for video game consols and cartridges compatible with the
Nintendo console, the purpose and effect of the agreements
and practices being to limit parallel exports of Nintendo