Case T-265/03: Action brought on 23 July 2003 by Helm Düngemittel GmbH against the Commission of the European Communities
Date: 2003-10-04
Institutions: Court of First Instance
Subjects: European Commission, North Korea, action for annulment (EU), chemical fertiliser, delivery

4.10.2003

EN

Official Journal of the European Union

C 239/23

the recitals to the contested decision is inadequate. The
publication of the standards in the Official Journal is likewise
defective as no reference is made to the fact that the standards,
for the most part, and their annexes (with the exception of
Annex ZA) are not binding and that thermal
installation
products only need to comply with Annex ZA in order to bear
the EC mark. As regards the substance, the applicants are of
the opinion that the standards in question are incomplete,
unclear, imprecise and contradictory and that the system of
standards is incoherent. Moreover, the use of the EC mark is
misleading since it does not prove that the product complies
with all European standards but rather only with Annex ZA to
those standards. The contested decision thus fails to meet the
requirements of Directive 89/106,
the principle of pro-
portionality (third paragraph of Article 5 EC) and the require-
ments of consumer protection (Article 95(3) EC).

( 1) OJ C 358 of 15 December 2001, p. 9.
( 2) Council Directive 89/106/EEC of 21 December 1989 on the
approximation of laws, regulations and administrative provisions
of the Member States relating to construction products (OJ L 40
of 11 February 1989, p. 12) as amended by Directive 93/68/EEC
(OJ L 220 of 30 August 1993, p. 1).

Action brought on 23 July 2003 by Helm Düngemittel
GmbH against the Commission of the European Com-
munities

(Case T-265/03)

(2003/C 239/43)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 July 2003 by Helm Düngemittel
GmbH, Hamburg (Germany), represented by Dr W.P. Wasch-
mann, lawyer.

The applicant claims that the Court should:

— annul the Decision of the Commission of the European
Communities of 23 May 2003 concerning retention of a
sum of EUR 346 221,20;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

In the context of an invitation to tender for the supply of
artificial fertiliser to North Korea, the applicant was awarded
the contract by the Commission. Since the artificial fertiliser
supplied by the applicant was late in reaching its destination,
the Commission withheld from the applicant a sum of
EUR 346 221,20 and refused, finally by letter of 23 May 2003,
to pay the sum concerned to the applicant.

force majeure and, consequently,

The applicant submits that the delay in delivering the fertiliser
can be attributed to restrictions on the export of fertiliser from
China, where it intended to procure the fertiliser for export.
As those restrictions were wholly unforeseeable, they may be
regarded as a case of
in
accordance with Article 22(4) of Regulation No 2519/97 (1),
no sum may be retained. The applicant also submits that no
loss was suffered as a result of the late delivery and that
retention of the amount is therefore disproportionate to the
failure to observe the delivery period and is in breach of the
Community-law principle of proportionality. The retention
also infringes provisions of the Belgian Civil Code, since the
Commission did not previously expressly call on the applicant
to fulfil that contractual obligation.

(1) Commission Regulation (EC) No 2519/97 of 16 December 1997
laying down general rules for the mobilisation of products to be
supplied under Council Regulation (EC) No 1292/96 as Com-
munity food aid (OJ L 346 of 17.12.1997, p. 23).

Action brought on 24 July 2003 by Anna Maria Roccato
(Mrs Pinson) against the Commission of the European
Communities

(Case T-267/03)

(2003/C 239/44)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 July 2003 by Anna Maria Roccato,
residing in Brussels, represented by Georges Vandersanden and
Laure Levi, lawyers.