Case C-173/03: Reference for a preliminary ruling by the Il Tribunale di Genova by order of that Court of 20 March 2003 in the action brought by Fallimento "raghetti del Mediterraneo"SPA, in liquidation, against Italian Republic
Date: 2003-07-05
Institutions: Court of Justice
Subjects: application of EU law, interpretation of the law, liability of the State, miscarriage of justice

C 158/10

EN

Official Journal of the European Union

5.7.2003

Reference for a preliminary ruling by the Il Tribunale di
Genova by order of that Court of 20 March 2003 in the
action brought by Fallimento ‘raghetti del Mediterraneo’-
SPA, in liquidation, against Italian Republic

(Case C-173/03)

(2003/C 158/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Il Tribunale di Genova
(Genoa District Court) of 20 March 2003, received at the
Court Registry on 14 April 2003, for a preliminary ruling in
the action brought by Fallimento ’Traghetti del Mediterraneo’
SPA, in liquidation, against Italian Republic on the following
questions:

1.

Is a Member State liable on the basis of non-contractual
liability to individual citizens for errors by its own judges
in the application of Community law or the failure to
apply it correctly and in particular the failure by a court
of last instance to discharge the obligation to make a
reference to the Court of Justice under the third paragraph
of Article 234.

2. Where a Member State is deemed liable for the errors of
its own judges in the application of Community law and
in particular for failure by a court of last instance to make
a reference to the Court of Justice under Article 234 EC,
is affirmation of
that liability negated in a manner
incompatible with the principles of Community law by
national legislation on State liability for judicial errors
which:

— precludes liability in relation to the interpretation of
provisions of law and assessment of facts and of the
evidence adduced in the course of the exercise of
judicial activity,

— limits State liability solely to cases of fraud and

serious default on the part of the judge?

Appeal brought on 25 April 2003 by B. Latino against the
judgment delivered on 26 February 2003 by the First
Chamber of the Court of First Instance of the European
Communities in Case T-145/01 between B. Latino and the
Commission of the European Communities

(Case C-180/03 P)

(2003/C 158/18)

An appeal against the judgment delivered on 26 February
2003 by the First Chamber of the Court of First Instance of
the European Communities in Case T-145/01 between B. La-
the European Communities
tino and the Commission of
was brought before the Court of Justice of the European
Communities on 25 April 2003 by B. Latino, represented by

J.R. Iturriagagoitia and K. Delvolvé,
claims that the Court should:

lawyers. The appellant

principally:

— declare that the appeal is admissible and founded,

— set aside the second point of the operative part of the
judgment delivered by the Court of First Instance on
26 February 2003 in Case T-145/01;

in the alternative:

— annul the express decision of the Appointing Authority
of 10 August 2000 not to acknowledge the occupational
origin of his arthritic symptoms following his request of
7 May 1996;

in any event:

— make an order as to costs in accordance with the

applicable provisions of the Rules of Procedure.

Pleas in law and main arguments

— First ground of appeal: Breach, by the Commission, of
Article 73 of the Staff Regulations and Article 3(2) of the
Rules on the Insurance of Officials of the European
Communities against the Risk of Accident and of Occu-
pational Disease:

The appellant contests the finding of the Court of First
Instance that the Commission, in refusing to acknowledge
the occupational origin of his arthritic lesions on the
ground that it had not been sufficiently established, had
not infringed either Article 73 of the Staff Regulations or
Article 3(2) of the Rules on the Insurance of Officials of
the European Communities against the Risk of Accident
and of Occupational Disease.

— Second ground of appeal: Infringement of the delimi-

tation of the powers of Medical Committees

The appellant claims that the Commission and the Court
of First Instance are in breach of the general principle of
law ‘semper in dubiis benigniora preferenda sunt’ in the
case of doubt as to the real cause of the symptoms and
that there were irregularities in the procedure of the
Medical Committee. The second reference to the Medical
Committee was improper, first because once it had given
its first opinion, the Committee had become ‘functus
officio’ and, secondly, because since it had already given
its opinion and included a member of the Medical Service
of the Commission,
the conditions
of independence and impartiality required. Lastly, the
absence of Community rules on the procedure to be
followed obliges Medical Committees to comply with the
instructions which they receive from the institutions.

it did not fulfil