Case C-497/06P: Appeal brought on 5 December 2006 by CAS Succhi di Frutta SpA. against the judgment delivered on 13 September 2006 in Case T-226/01 CAS Succhi di Frutta SpA v Commission
Date: 2007-02-24
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for failure to act, aid system, appeal, award of contract, food aid, food industry

C 42/10

EN

Official Journal of the European Union

24.2.2007

Appeal brought on 5 December 2006 by CAS Succhi di
Frutta
on
13 September 2006 in Case T-226/01 CAS Succhi di Frutta
SpA v Commission

judgment

delivered

against

SpA.

the

(Case C-497/06P)

(2007/C 42/16)

Language of the case: Italian

Parties

Appellant: CAS Succhi di Frutta SpA (represented by: F. Sciau-
done, R. Sciaudone and D. Fioretti, Avvocati)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annul the judgment under appeal and refer the case back to
the Court of First Instance so that it may give a ruling on
the merits in the light of the information provided by the
Court of Justice;

Lastly, with regard to the costs incurred in defending its case,
the appellant claims; breach of the principle of the right to
compensation for loss relating to the costs of technical and legal
assistance and infringement of the principle of compensation
for the expenses incurred in participating in the tendering
procedure.

Reference for a preliminary ruling from the Giudice di
Pace di Genova (Italy) lodged on 11 December 2006 —
Corporación Dermoestética SA v To Me Group Advertising
Media

(Case C-500/06)

(2007/C 42/17)

Language of the case: Italian

— order the Commission to pay the costs of

the present
proceedings and of the proceedings at first instance relating
to Case T-226/01.

Referring court

Giudice di Pace di Genova

Pleas in law and main arguments

The pleas in law put forward challenging the judgment of the
Court of First Instance may be divided into four categories,
which relate to: the significance of the judgment in Case C-496/
99 P Commission v CAS; the substitution of fruit; the coefficients
of substitution; the costs incurred by the appellant in arguing its
case.

With regard to the significance of the judgment delivered in
Case C-496/99 P Commission v CAS, the appellant alleges: distor-
tion and misrepresentation of the arguments put forward by the
appellant on the significance of the judgment in Case T-226/01
Commission v CAS; breach of the principle of the authority of
res
the action for damages
referred to in the judgment in Commission v CAS; an error in the
interpretation of
the conditions under which an action for
damages may be brought.

judicata; misrepresentation of

the substitution of

With regard to the substitution of fruit, the appellant alleges: a
failure to provide adequate reasoning in relation to the loss
suffered as a result of the substitution of the fruit and manifest
error of assessment of the appellant's arguments concerning the
unlawfulness of the tendering procedure; an error concerning
the legal significance of
the fruit in the
context of the mechanism of the tendering procedure; breach of
the principle of the authority of res judicata in relation to the
date when it was known with certainty that substituted fruit
was to be received; distortion of the clear sense of the evidence
in the case-file and failure to give adequate reasons concerning
the advantages resulting from the substitution of fruit and the
appellant's knowledge as of March 1996; infringement of proce-
dural rules, manifest distortion of evidence and breach of the
general principles relating to the burden of proof.

With regard to the coefficients of substitution, the appellant
claims; an incorrect assessment of the quantities of fruit to be
taken into account in calculating the loss.

Parties to the main proceedings

Applicant: Corporación Dermoestética SA

Defendant: To Me Group Advertising Media SRL

Questions referred

1. Is it

incompatible with Article 49 of

the EC Treaty for
national legislation, such as that under Articles 4, 5 and 9a
of Law No 175 of 1992 and Ministerial Decree No 657 of
16 September 1994, and/or administrative practices
to
prohibit the broadcasting on national television of advertise-
ments for medical and surgical treatments carried out in
private health care establishments duly authorised for that
purpose, even though that same advertising is permitted on
local television networks, and, at the same time, to impose,
in relation to the broadcasting of those advertisements, a
ceiling on expenditure of 5 per cent of declared income for
the preceding year?

2. Is it

incompatible with Article 43 of

the EC Treaty for
national legislation, such as that under Articles 4, 5 and 9a
of Law No 175 of 1992 and Ministerial Decree No 657 of
to
16 September 1994, and/or administrative practices
prohibit the broadcasting on national television of advertise-
ments for medical and surgical treatments carried out in
private health care establishments duly authorised for that
purpose, even though that same advertising is permitted on
local television networks, and, at the same time, to require,
in relation to the broadcasting of those advertisements, prior
authorisation from each individual municipality and the
opinion of the provincial professional association, and to
impose a ceiling on expenditure of 5 per cent of declared
income for the previous year?