Case C-435/07: Action brought on 18 September 2007 — Commission of the European Communities v Portuguese Republic
Date: 2007-11-10
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, motor vehicle, safety device, technical regulations

10.11.2007

EN

Official Journal of the European Union

C 269/39

Pleas in law and main arguments

The period prescribed for transposition of the Directive into
domestic law expired on 19 April 2006.

Appeal brought on 14 September 2007 by the Commission
of the European Communities against the judgment deliv-
ered on 12 July 2007 in Case T-312/05 Commission of the
European Communities v Efrosini Alexiadou

(1) OJ 2005 L 255, p. 149.

Action brought on 18 September 2007 — Commission of
the European Communities v Portuguese Republic

(Case C-435/07)

(2007/C 269/66)

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to bring into force the laws,
and administrative provisions necessary to
regulations
comply with Directive 2005/39/EC (1) of
the European
Parliament and of
the Council of 7 September 2005
amending Council Directive 74/408/EEC relating to motor
vehicles with regard to the seats, their anchorages and head
restraints or, in any case, by failing to communicate them to
the Commission, the Portuguese Republic has failed to fulfil
its obligations under that directive;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the Directive into
domestic law expired on 19 April 2006.

(1) OJ 2005 L 255, p. 143.

(Case C-436/07 P)

(2007/C 269/67)

Language of the case: Greek

Parties

Appellant: Commission of the European Communities (repre-
sented by: D. Triandafillou)

Other party to the proceedings: Evfrosini Alexiadou

Form of order sought

The appellant asks the Court to:

— set aside the judgment of the Court of First Instance of
12 July 2007 in Case T-312/05 Commission of the European
Communities v Alexiadou which was notified to the Commis-
sion on 18 July 2007;

— uphold the Commission's claims in its action;

— order the respondent to pay the costs of the appeal and of

the proceedings before the Court of First Instance.

Pleas in law and main arguments

The Court of First Instance misinterpreted the general conditions
of the contract (law of the parties) and in particular the provi-
sion concerning financial audit which refers to audit in a loose
way as a mere possibility. Another provision which was relied
upon of its own motion by the Court of First Instance does not
even refer to audit, although it concerns defective performance
of a contract. The requirement to carry out an audit thus proves
to be independent of the contractual provision relied upon.

In any event, financial audit could not be required if there was
nothing to audit, since nobody is bound to do the impossible
and contractual provisions must be construed in such a way as
to ensure practical effectiveness.

The principle of sound budgetary management requires that the
Commission should not carry out audits without reason. The
Court of First Instance excluded at the outset application of the
principles of good faith and commercial usage which could have
offered guidance in its interpretation.

Since it gave judgment by default, the Court of First Instance
cannot blame the Commission for not explaining some of its
arguments
above),
without infringing the principle of judicial protection.

the preceding argument

(in particular