Case C-196/03 P: Appeal brought on 3 May 2003 by Arnaldo Lucaccioni 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-164/01 between Arnaldo Lucaccioni and the Commission of the European Communities
Date: 2003-07-19
Institutions: Court of Justice
Subjects: European Commission, European official, asbestos, disability insurance, indemnification, occupational disease

19.7.2003

EN

Official Journal of the European Union

C 171/11

Second ground:

interpretation

Erroneous
and
application of Articles 42 EC and
43 EC.

by exposing him to asbestos, a carcinogenic substan-
ce which causes incurable serious illnesses,

Appeal brought on 3 May 2003 by Arnaldo Lucaccioni
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-164/01 between
Arnaldo Lucaccioni and the Commission of the European
Communities

(Case C-196/03 P)

(2003/C 171/16)

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-164/01 between Arnaldo
Lucaccioni and the Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 3 May 2003 by Arnaldo Lucaccioni, rep-
resented by Mauro Cimino, with an address for service in
Fermo (AP) (Italy).

The appellant claims that the Court should:

1.

2.

uphold the appeal and, consequently, the application at
first instance;

order compensation for biological and non-material
damage caused by the defendant between 1967 and
1990, under the ordinary law, the Charter of Fundament
Rights of the European Union and the European Conven-
tion on Human Rights,
(or under)
Article 73 of the Staff Regulations, as a result of the
inexcusable fault of the institution, which thus incurs
liability, inasmuch as it:

irrespective of

— infringed the appellant’s human dignity,

— infringed the appellant’s right to privacy,

— caused continuous and culpable bodily harm to the
appellant, in that it obliged him to work, giving
untrue reassurances, in an environment contamin-
ated by asbestos, knowing full well that asbestos is
harmful even for persons not at risk,

— deliberately attempted to harm the appellant, at the
risk of killing him, which is mentioned only to
support the allegation of harm

— deliberately tortured the appellant over many years

(totalling

— deliberately attempted against the appellant’s safety
at work, by seriously neglecting safety, assessed at
EUR 3 500 000 (ITL 7 000 000 000), by analogy
with the amounts ordered in respect of each of the
victims
or
some
ITL 1 000 000 000) in the judgment in Case 4840/
96 of 5 July 1996 delivered by the Pretura Circondar-
iale di Torino (District Magistrate’s Court, Turin) and
the compensation ordered for each of the victims of
the
namely
‘Cermis’
ITL 4 000 000 000.

500 000

disaster,

cable

EUR

car

3.

order the defendant to pay the costs incurred at first
instance and as a result of the appeal.

Pleas in law and main arguments

1.
The Court of First Instance found that the applicant had
already submitted on 15 May 1994 a request relating to non-
material damage suffered prior to the onset of the occupational
disease. That request was rejected by the appointing authority
by decision of 22 September 1994, against which the applicant
brought a complaint on 15 December 1994, in which he no
longer mentioned the alleged damage,
in particular non-
material damage, suffered prior to the onset of the occupational
disease; neither did he challenge before the Court of First
Instance (Case T-165/95) the rejection of the complaint by
the Commission refusing to acknowledge entitlement
to
compensation for non-material damage suffered prior to the
onset of the occupational disease. Essentially, the applicant
failed to bring an action within the time-limit for doing so
against the decision of the Commission of 22 September 1994
refusing to pay compensation for the damage.

According to the appellant, the reasoning of the Court of First
Instance is not satisfactory in that it may not be stated with
certainty that the request of 15 May 1994 included a request
for compensation for non-material damage suffered prior to
the onset of the occupational disease. That interpretation is
arguable, since what is involved is a letter making a claim and
a generic request for compensation following the onset of the
illness.

2.
The appellant also disputes that the fact that the Court
of First Instance declared inadmissible the request for compen-
sation for biological damage on the ground that a request
seeking compensation for damage must contain information
to make it possible to identify the conduct of the institution
about which the appellant is complaining and the reasons for
which he takes the view that there is a causal link between the
conduct and the damage he alleges to have suffered. According
to the appellant, the damage to his health caused by exposure

C 171/12

EN

Official Journal of the European Union

19.7.2003

to asbestos has resulted in psychological and physical stress;
that damage may be assumed to exist on the basis of
information concerning environmental pollution and may
certainly be described as biological and life-threatening dam-
age. There has in any event been psychological damage
resulting from concern for his life suffered by someone who
fearfully expected to suffer from cancer, that is to say, to die.

Action brought on 12 May 2003 by the Commission of
the European Communities against the Italian Republic

(Case C-197/03)

(2003/C 171/17)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 May
2003 by the Commission of the European Communities,
represented by Enrico Traversa, acting as Agent.

The applicant claims that the Court should:

— declare that, by introducing with retroactive effect under
Article 11 of Law No 448/98, an annual flat-rate charge
on the registration of company documents other than the
instrument of incorporation and by providing for rules
relating to reimbursement of the repealed administrative
charge on registration of the instrument of incorporation
which are discriminatory and restrictive as against com-
panies entitled to that reimbursement, the Italian Republic
has
imposed on it by
Article 10(c) of Council Directive 69/335/EEC (1) con-
cerning indirect taxes on the raising of capital and the
principles laid down by the Court of Justice concerning
recovery of charges levied by the Member States in breach
of Community law;

infringed the obligations

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

(a) The annual retroactive flat-rate charge on registration
of company documents other than the instrument of
incorporation

a renumerative nature, inasmuch as the Italian tax authorities
already levied on registration of such company documents in
the years 1985 to 1992 ‘analogous charges which may be
regarded as constituting renumeration for the service provided’.

Italian authorities,

The
contrary to the provisions of
Article 11(2) of Law No 448/98, are obliged to reimburse in
full to the capital companies who have sought recovery within
the periods laid down, the amount of the administrative charge
on registration of the instrument of incorporation declared
invalid by the Court in Joined Cases C-71/91 and C-178/91
Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915,
and are not at liberty to reduce that amount by a sum equal to
eight times the retroactive annual flat-rate charge provided for
in Article 11(1) of Law No 448/98. The introduction of that
retroactive annual flat-rate charge constitutes a flagrant breach
of the prohibition in Article 10 of Directive 69/335.

(b) The detailed rules for calculating interest on the

amounts to be repaid to the companies

The Commission points out that the detailed rules for calculat-
ing interest on refunds of
the administrative charge on
incorporation
registration of a company’s instrument of
provided for in Article 11(3) of Law No 448/98 concern only
a specific category of actions for restitution, namely those
based on an infringement of Article 10 of Directive 69/335,
that is to say a breach of a provision of Community law. Since
those detailed rules for calculating interest are manifestly less
favourable in contrast to those applicable in the case of
analogous actions based on national
law, the Commission
concludes that Article 11(3) of Law No 448/98 constitutes an
infringement of the principle of equivalence upheld by the
Court.

(c) Detailed rules for reimbursement of the repealed admin-
istrative charge on registration of the instrument of
incorporation

In the Commission’s view, the requirements contained in
Article 11(4) and (5) of Law No 448/98 and in implementing
circular No 32/E providing for a commencement date for
reimbursement procedures, introducing an annual ceiling of
amounts earmarked for reimbursement and suspending the
reimbursements themselves in cases where proceedings at first
instance are still pending, occasion, or are likely to occasion,
delays in repayment of the repealed charge on registration of
a company’s instrument of incorporation. This deferral of
reimbursements and the consequent extension of the duration
of judicial proceedings for recovery of the registration charge
quite plainly renders excessively difficult the exercise of a right
conferred by the Community legal order and, more specifically,
the right of capital companies to be subject, on incorporation,
only to the harmonised tax on contributions and to seek
recovery of other non-harmonised indirect taxes prohibited
under Article 10 of Directive 69/335.

The Commission maintains that the retroactive flat-rate charge
on registration of company documents other than the instru-
ment of incorporation cannot in any way be deemed to be of

The Commission concludes that the Italian legislature, by
introducing restrictive rules on reimbursement provided for in
Article 11(4) and (5) of Law No 448/98, has at one and the