Case T-261/07: Action brought on 13 July 2007 — Commission v Banca di Roma
Date: 2007-09-08
Institutions: Court of First Instance
Subjects: European Community, Italy, action for annulment (EU), bank, clothing industry, debt, fine, guarantee

C 211/52

EN

Official Journal of the European Union

8.9.2007

Action brought on 17 July 2007 — Las Marismas de
Lebrija v Council and Commission

Form of order sought

(Case T-260/07)

(2007/C 211/98)

Language of the case: Spanish

Parties

Applicant: Las Marismas de Lebrija, S Coop. And. (Sevilla, Spain)
(represented by: L. Ortiz Blanco, lawyer)

Defendants: Council of the European Union and Commission of
the European Communities

Form of order sought

— declare under Article 288 EC that the applicant is entitled to
have damage totalling one million five hundred and seventy
five
two euros
(EUR 1 575 122) made good by the Council and the
Commission jointly and severally;

thousand one hundred and twenty

— order the defendants to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are those relied on in
Case T-217/07 Las Palmeras v Council and Commission.

Action brought on 13 July 2007 — Commission v Banca di
Roma

(Case T-261/07)

(2007/C 211/99)

Language of the case: Italian

Parties

— Order the Banca di Roma SpA, established in Italy at Viale
Umberto Tupini 180, Rome (00144), in the person of its
present legal representative, to execute the Bank guarantee
of 28.10.1989 in favour of
the
European Communities;

the Commission of

— Order the Banca di Roma SpA, established in Italy at Viale
Umberto Tupini 180, Rome (00144), in the person of its
present legal representative, to pay to the Commission of
the European Communities, established in Belgium at Rue
de la Loi 200, Brussels (1039), the sum of EUR 412 607,41,
together with interest of EUR 94,37 per day running from
30 December 2006 until payment in full, or such other sum
as the Court may decide;

— Order the Banca di Roma SpA, established in Italy at Viale
Umberto Tupini 180, Rome (00144), in the person of its
present legal representative, to pay all of the costs of the
present proceedings including those of the Commission.

Pleas in law and main arguments

This action is brought under Article 238 EC on the basis of the
arbitration clause contained in the guarantee of 28 October
1989 issued by the Banco di Roma (now named Banca di
Roma) in favour of the Commission.

By Decision C(89) 1241 of 2 August 1989 (1) the Commission
imposed a fine on fourteen producers of welded steel mesh, one
of whom was Ferriere Nord SpA, for having taken part in agree-
ments and concerted practices which infringed Article 85(1) EC
(now Article 81(1) EC); the fine imposed on Ferriere Nord SpA
was ECU 320 000.

Under Article 4 of that decision Ferriere Nord SpA had to pay
the fine within three months of the date of notification of the
decision, save that Ferriere Nord SpA was permitted to provide
a bank guarantee covering the entire sum due, that is to say,
principal and interest.

By registered post of 30 October 1989, received on 7 November
1989, Ferriere Nord sent to the Commission a letter dated
the
26 October 1989 whereby the Udine (Italy) branch of
Banco di Roma (now Banca di Roma) declared to the Commis-
sion that it stood as guarantor of payment by Ferriere Nord
both of the fine of ECU 320 000 and of interest, calculated to
run from 15 November 1989 until
the date of effective
payment.

Applicant: Commission of the European Communities (repre-
sented by: A.Colabianchi,
lawyer, and F. Amato and M.
Wilderspin, Agents)

Defendant: Banca di Roma SpA

In Case T-153/04 (2), the Court of First Instance held, by judg-
ment of 27 September 2006, that the power of the Commission
to enforce the Welded steel mesh decision was time-barred, in
accordance with Article 4(1) of Regulation No 2988/74 (para-
graphs 53 and 58 of the judgment).

8.9.2007

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Official Journal of the European Union

C 211/53

the autonomy of

Nonetheless, in the opinion of the applicant, that judgment has
no effect on the guarantee issued by the Banca di Roma, since,
by virtue of
that guarantee, within the
meaning of Italian law (which is the law applicable to the facts
of
the Banca di Roma is obliged to execute the
guarantee upon mere request by the Commission, and no objec-
tion which may be raised by Ferrier Nord can justify refusal to
execute.

the case),

(1) OJ 1989 L 260, p. 1.
(2) Not yet published in ECR.

Action brought on 13 July 2007 — Lithuania v
Commission

(Case T-262/07)

(2007/C 211/100)

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas
and E. Matulionytė)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2007) 1979 final (1) of 4 May
2007 or, in the alternative, annul that decision in so far as it
is addressed to the Republic of Lithuania;

— order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision sets out the quantities of agricultural
products in free circulation in the new Member States at the
date of accession exceeding the quantities which were to be
regarded as constituting a normal carryover of stock at 1 May
2004, and the amounts to be charged to the new Member
States in consequence of the expense of elimination of those
excess quantities.

The applicant considers the contested decision to be unlawful. It
relies on four pleas in law in support of its action.

1. Lack of power

The applicant states that paragraph 4 of Chapter IV of Annex IV
to the Act of Accession does not confer upon the Commission
power to impose on the Member States payments to the Com-
munity budget that are in the nature of penalties, in particular
where it has not proved expenditure incurred by the Com-

munity in eliminating surplus stocks; also,
the Commission
exceeded the prescribed three-year period for adoption of the
decision under Article 41 of the Act of Accession, which alone
could be an appropriate legal basis for the decision.

2. Infringement of European Community law

Infringement of the principle of legal certainty: the contested deci-
sion infringes the principle of legal certainty because the metho-
dology and criteria for calculating surplus stocks were not
known when determining built up stocks at the time of acces-
sion, which would have allowed Member States to prevent
surplus stocks from arising or to eliminate them at the expense
of the economic operators who had built up the stocks. More-
over, the contested decision laid down different criteria — and
extended the list of products assessed — compared with
Article 4 of Regulation No 1972/2003, under which the States
scrutinise the building up of surplus stocks.

Infringement of the principle of non-discrimination: unlike Commis-
sion Regulation (EC) No 144/97 on surplus stocks of agri-
cultural products in Austria, Sweden and Finland, the contested
decision assessed not only products which were granted export
refunds or to which intervention measures were applied, but
also stocks of other products. This principle has also been
infringed by treating the different situations of new Member
States in the same way and by failing, without justification, to
have regard to the specific circumstances in which their stocks
arose.

Infringement of the principle of good administration and the principle
of transparency: the contested decision does not disclose compre-
hensively the criteria for calculating the payments and, more-
over, the criteria continually change. Also, although the Member
States themselves assessed stocks in accordance with measures
of Community law, the Commission, without giving reasons as
to why that assessment is inappropriate and without disputing
it, conducted another assessment of the same stocks on the
basis of its own criteria.

Infringement of provisions of the Act of Accession: first, the decision
is not an appropriate means of achieving the objectives of the
elimination of surplus stocks which is required by paragraph 2
of Chapter IV of Annex IV to the Act of Accession, in particular
because it was not even attempted in the decision to link the
penalties imposed with expenditure on the elimination of stocks
actually incurred by the Community. Second, the decision was
adopted after expiry of the period, laid down in Article 41 of
the Act of Accession, of three years from the date of accession
during which the Commission could adopt
transitional
measures.

3. Inadequate statement of reasons

it

In the applicant's submission, the contested decision has an
inadequate statement of reasons or entirely lacks reasons; in par-
(and in what
ticular,
amount) the European Community actually incurred, by reason
of elimination of the alleged surplus stocks, expenditure which
Member States should meet.

is not shown in the decision that