Case T-128/05: Action brought on 18 March 2005 by Société des Plantations de Mbanga ‘SPM’ against the Council of the European Union and Commission of the European Communities
Date: 2005-07-09
Institutions: Court of First Instance
Subjects: ACP countries, Council of the European Union, European Commission, appeal to the Court (EU), contractual liability, import licence, import policy, indemnification, infringement of EU law, invoicing, restriction on competition, tropical fruit

9.7.2005

EN

Official Journal of the European Union

C 171/23

5.

in any event, however, order the Commission to pay the
costs of these proceedings.

Action brought on 18 March 2005 by Société des Planta-
tions de Mbanga ‘SPM’ against the Council of the European
Union and Commission of the European Communities

Pleas in law and main arguments

Under Commission Decision C(2004) 4031 of 7 December
2004 adopting, pursuant to Council Directive 92/43/EEC, (1)
the list of sites of Community importance for the Continental
biogeographical region, (2) properties belonging to the appli-
cants fall under the protective regime established by that direc-
tive.

The applicants claim inter alia that the contested decision was
not based on the necessary weighing of benefits as between the
higher public interests and the rights of the citizen and the
regional authority, who are directly affected.

The applicants submit that the contested decision is at variance
with Directive 92/43/EEC since the necessary bases for esti-
mating the required cost of financing were not properly drawn
up, and since the action framework to be adopted pursuant to
Article 8 of the directive was not drawn up and would not
have been sufficient.

(Case T-128/05)

(2005/C 171/39)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 18
March 2005 by Société des Plantations de Mbanga ‘SPM’, estab-
lished at Douala (Cameroun), represented by Pierre Soler-
Couteaux, lawyer.

The applicant claims that the Court should:

The applicants further complain that, because of the division of
jurisdiction in Austria, the coherence of the network of areas of
conservation called for by Directive 92/43/EEC is not guaran-
teed, and that in practically all cases the areas of conservation
actually end at Land frontiers, which in the applicants' view is
wrong both under Community law and from the technical
point of view of nature conservation.

1. order the Commission and the Council jointly and severally
to pay compensation for the damage suffered in the amount
of EUR 15 163 825 together with interest at the statutory
rate;

2. order the Commission and the Council to pay the costs.

The applicants also submit that the Commission failed, in the
contested decision, to state expressly and specifically for which
species and habitats the sites now listed as sites of Community
importance are actually of Community importance.

Pleas in law and main arguments

Finally, the applicants claim that, as far as the sites affecting the
applicants are concerned,
inaccurate technical bases were
turned into the substance of the decision, and that the sites
were therefore incorrectly declared to be sites of Community
importance for certain species and habitats.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ 1992 L 206,
p. 7).

(2) OJ 2004 L 382, p. 1.

The applicant produces, processes, and markets bananas for
export in the Republic of Cameroon and in other countries. In
order to market its bananas within the Community, the appli-
cant is required to obtain import licences from importer opera-
tors, because it is not an operator, for the purpose of the Com-
munity legislation, and it is not part of a European or multina-
tional group.

The applicant claims that importer operators misuse the Com-
munity provisions governing the Community system of banana
imports for their own benefit by reintroducing, by means of an
excessive and disproportionate charge on import licences, duty
on banana imports from ACP States normally subject to a zero
duty.

C 171/24

EN

Official Journal of the European Union

9.7.2005

The applicant submits that, by failing to take account of a very
distinct category of economic operators in the banana sector,
the ‘independent’ ACP producers, which are neither operators
nor part of large European or multinational groups and, by
failing to adopt the appropriate measures to remedy the conse-
quences arising from that, although the Commission is bound
to avoid disrupting normal commercial
relations between
persons at different levels of the commercial chain, the Council
and the Commission have conducted themselves in such a
manner as to incur non-contractual liability.

Vakbond Varkenshouders (Netherlands Association of pig bree-
ders), established in Lunteren (Netherlands); Marius Schep,
residing in Lopik (Netherlands) and the Nederlandse Bond van
livestock
Handelaren in Vee
dealers), established in the Hague (Netherlands), represented by
Johannes Kneppelhout and Monique Charlotte van der Kaden.

association of

(Netherlands

The applicants claim that the Court should:

The applicant also pleads a manifest disregard for the limits of
the discretion of the Council and the Commission, relying on
five pleas alleging:

— Declare the application for annulment admissible and well

founded;

— introduction of a law which favours anti-competitive prac-

tices;

— Order the defendant to pay the costs.

— absence of measures intended to counter those anti-compe-

titive effects;

— infringement of the principles of the protection of legiti-

mate expectations and legal certainty;

Pleas in law and main arguments

— infringement of the principle of non-discrimination and

— infringement of the principle of freedom to pursue a trade

or profession.

The applicants seek annulment of the Commission Decision of
21 December 2004 declaring a concentration compatible with
the common market (Case No IV/M.3605 — SOVION/HMG).

The applicant further relies on an infringement of Articles 81
EC and 82 EC by the operators.

The applicants submit that the Commission has infringed Arti-
cles 2, 6 and 8 of Council Regulation (EC) No 139/2004 of 20
January 2004 on the control of concentrations between under-
takings (1) (the EC Merger Regulation). In the applicants' view,
the Commission unlawfully decided that the proposed concen-
tration gave rise to no problems for competition on the market
for the purchase of live pigs and sows for slaughter and that no
dominant position arose on the relevant market.
In that
connection the applicants claim that in certain recitals to the
contested decision the Commission applied a distorted defini-
tion of the relevant product market by including the market for
sows in the market
In the applicants' view the
for pigs.
Commission defined the geographical market incorrectly.

Action brought on 14 April 2005 by Nederlandse
Vakbond Varkenshouders and Others v Commission of
the European Communities

(Case T-151/05)

(2005/C 171/40)

The applicants also claim an infringement of
the duty to
provide a statement of reasons and of due care. According to
the applicants the Commission gave the applicants insufficient
opportunity to clarify their views and disregarded the informa-
tion supplied by them.

(Language of the case: Dutch)

(1) OJ 2004 L 24, p. 1.

An action against the Commission of the European Commu-
nities was brought on 14 April 2005 by the Nederlandse