Case C-393/07: Action brought on 9 August 2007 — Italian Republic v European Parliament
Date: 2007-10-20
Institutions: Court of Justice
Subjects: European Parliament, Italy, Member of the European Parliament, Statute for Members of the Parliament, action for annulment (EU), supervisory power, universal suffrage

C 247/18

EN

Official Journal of the European Union

20.10.2007

Form of order sought

The appellant claims that the Court should:

— Declare the present appeal admissible and well-founded;

— Set aside the judgment of the Court of First Instance of

22 May 2007 in Case T-198/05;

Infringement of the rights of defence, the right to a fair hearing
and equality of arms.

— Declare the Appellant's requests in Case T-198/05 admissible

and well-founded;

Action brought on 9 August 2007 — Italian Republic v
European Parliament

— Grant the request for damages made by the Appellant at
in the alternative, refer the case to the

first instance or,
Court of First Instance to rule on the merits; and

— Order the Defendant to bear all the costs and expenses of

both proceedings.

(Case C-393/07)

(2007/C 247/23)

Language of the case: Italian

Pleas in law and main arguments

The appellant submits that the contested judgment should be
set aside on the following grounds:

Parties

Distortion of facts and evidence and manifest error in the legal
assessment of facts:

Applicant: Italian Republic (represented by: I.M. Braguglia, agent,
and P. Gentili, Avvocato dello Stato)

— Incorrect assessment of questions and answers provided as

evidence in the form of questionnaires;

Defendant: European Parliament

— Incorrect assessment of

the questionnaires regarding the

seasonal use of methyl bromide;

Form of order sought

— Omission of sales figures presented by the appellant and an
figures

obvious
provided by the appellant and the defendant respectively;

confusion between sales

and import

— Failure to properly evaluate the sales figures;

— annul Decision P6_TA-PROV(2007)0209 of the European
Parliament of 24 May 2007, notified on 28 May 2007,
concerning the verification of Beniamino Donnici's creden-
tials;

— Contradictions and incoherence in the legal assessment of

facts;

— order the European Parliament to pay the costs.

— Failure to assess the evidence collectively and in combined

form.

Misapplication of
damage:

the legal

requirement

to establish actual

The action is based on five grounds.

Pleas in law and main arguments

— Confusion of the existence of damage with the extent of

damage;

— Confusion of the examination of the existence of damage

with the examination of a causal link;

— Requirement to show that the damage could not be made

up.

The CFI placed a disproportionate and unjustified burden of
proof on the appellant.

Inconsistency in reasoning.

Procedural error in the application of the legal standard related
to the receipt of new evidence in the course of proceedings.

By the first ground, the Italian Government alleges infringement
of rules of
law by reference to Articles 6 (formerly 4), 8
(formerly 7), 12 (formerly 11) and 13 (formerly 12) of Decision
76/787/ECSC, EEC, Euratom, relating to the Act concerning the
the European Parliament by direct
election of Members of
universal suffrage of 20 September 1976 (‘the 1976 Act’), as
amended most recently by Decision No 2002/772/EC/Euratom
of 25 June 2002 (1), and by reference to Article 6 EU. In veri-
the European Parliament
fying the credentials of Members,
cannot as a matter of fact examine the lawfulness of national
electoral procedures and must simply take cognisance of the
results lawfully declared under those procedures. The prohibi-
tion on Members who are bound by binding instructions or
under a binding mandate laid down in Article 6 of the 1976
Act has no bearing on the express decision of an unelected
candidate not to replace an elected candidate who has ceased to
hold office.

20.10.2007

EN

Official Journal of the European Union

C 247/19

By its second ground, the Italian Government alleges infringe-
ment of rules of law by reference to Article 2 of the Statute for
Members of
the European Parliament adopted by Decision
2005/684/EC, Euratom of 28 September 2005 (2). Those provi-
sions will
in fact enter into force with effect from the 2009
legislative period and in any event concern only sitting
Members and are therefore irrelevant for the purposes of asses-
sing the decision of an unelected candidate not to replace an
elected candidate who has ceased to hold office.

govern only

By its third ground, the Italian Government alleges infringement
of rules of law by reference to Article 199 EC and Rules 3 and
4 of the Rules of Procedure of the European Parliament. Those
provisions
the
Parliament, inter alia, when verifying credentials and the power
cannot therefore be inferred from those provisions to examine
the lawfulness of national electoral procedures, not even with
regard to the replacement of elected candidates who have ceased
to hold office with unelected candidates.

internal procedures of

the

By its fourth ground, the Italian Government alleges infringe-
ment of rules of law by reference to Article 6 EU and Articles 10
and 230 EC. The European Parliament did not have the power
to disapply the judgment of the Italian Consiglio di Stato, which
is final and conclusive and which established that the election of
if
Mr Donnici was lawful. The European Parliament should,
necessary, have challenged that judgment by initiating third-
party proceedings.
the
European Parliament is contrary to the general principle of res
judicata, which is common to all the Member States.

the decision of

In any

event,

Defendant: Federal Republic of Germany

Form of order sought

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary fully to comply with
Directive 2004/48/EC of the European Parliament and of
the Council of 29 April 2004 on the enforcement of intel-
lectual property rights (1), or to notify the Commission of
any such provisions, the Federal Republic of Germany has
failed to fulfil its obligations under that directive;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive expired on 29 April
2006.

(1) OJ 2004 L 157, p. 45 and OJ 2004 L 195, p. 16.

By its fifth ground, the Italian Government claims that the
contested decision failed to give adequate reasons. Indeed, that
decision does not state the relevant facts on the basis of which
the Parliament concluded that Mr Occhetto's decision not to
replace Mr Di Pietro was not freely made.

(1) OJ 2002 L 283, p. 1.
(2) OJ 2005 L 262, p. 1.

Action brought on 28 August 2007 — Commission of the
European Communities v Portuguese Republic

(Case C-399/07)

(2007/C 247/25)

Language of the case: Portuguese

Action brought on 23 August 2007 — Commission of the
European Communities v Federal Republic of Germany

Applicant: Commission of the European Communities (repre-
sented by: A. Szmytkowska and M. Telles Romão, Agents)

Parties

(Case C-395/07)

(2007/C 247/24)

Language of the case: German

Parties

Defendant: Portuguese Republic

Form of order sought

— declare that, by failing to bring into force the laws, regula-
tions and administrative provisions necessary to comply
with Commission Directive 2005/6/EC (1) of 26 January
2005 amending Directive 71/250/EEC as regards reporting
and interpretation of analytical results required under Direc-
tive 2002/32/EC or, in any case, by failing to communicate
them to the Commission, the Portuguese Republic has failed
to fulfil its obligations under that directive;

Applicant: Commission of the European Communities (repre-
sented by: W. Wils and H. Kraemer, acting as Agents)

— order the Portuguese Republic to pay the costs.