Case T-388/07: Action brought on 10 October 2007 — Comune di Napoli v Commission
Date: 2007-11-24
Institutions: Court of First Instance
Subjects: European Commission, European Regional Development Fund, Italy, action for annulment (EU), balance of payments assistance, information network, telematics

C 283/40

EN

Official Journal of the European Union

24.11.2007

— annul Memorandum No 009525 of 6 September 2007 of
the European Commission, Directorate-General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Italy, Malta and the Netherlands, concerning
Hungary,
payments made by the Commission which differ from the
amount
POR ‘Campania’ 2000-2006
(No CCI 1999 IT 16 1PO 007);

requested. Ref.

— annul all related and prior acts and, consequently, order the
Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those
relied on in Case T-345/05 Italian Republic v Commission (1).

(1) OJ C 262 of 23.10.2004, p. 55.

In support of its action, firstly, the applicant submits that the
contested regulation must be annulled because of
lack of
reasoning since it does not state the reasons for which it widens
the scope of the restrictions on use applicable to drift nets to
include stabilised nets such as thonailles.

Secondly, it submits that the contested regulation also breaches
the principle of proportionality in that the prohibition of drift
nets, as they are defined,
is manifestly inappropriate having
regard, on the one hand, to the objectives pursued by that
prohibition and, on the other, to the particular characteristics of
the thonaille in comparison with other types of drift net.

Finally, the applicant claims that the prohibition on drift nets as
defined in Regulation No 809/2007 is discriminatory in that
treating the thonaille type of net in the same manner as other
drift nets is not justified, having regard to their characteristics.

(1) OJ 2007 L 182, p. 1.
(2) Council Regulation (EC) No 894/97 of 29 April 1997 laying down
certain technical measures for the conservation of fishery resources
(OJ 1997 L 132, p. 1).

Action brought on 5 October 2007 — France v Council

(Case T-382/07)

(2007/C 283/72)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliart, G. de
Bergues and A.-L. During, Agents)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EC) No 809/2007 of 28 June
2007 amending Regulations
(EC)
No 812/2004 and (EC) No 2187/2005 as concerns drift
nets (1);

(EC) No 894/97,

— Order the Council to pay the costs.

Action brought on 10 October 2007 — Comune di Napoli
v Commission

(Case T-388/07)

(2007/C 283/73)

Language of the case: Italian

Parties

Applicant: Comune di Napoli
lawyer, and G. Tarallo, lawyer)

(represented by: F. Sciaudone,

Defendant: Commission of the European Communities

Pleas in law and main arguments

Form of order sought

The Regulation contested in the context of the present action is
intended to give a uniform definition of drift nets. The applicant
disputes the definition as laid down by the Regulation in that it
includes nets such as ‘thonailles’ in the category of drift nets
and thus includes them within the scope of the prohibition on
their use laid down in Article 11a of Regulation No 894/97 (2).

— Annul Decision C(2007) 3893 of the European Commission

of 8 August 2007;

— order the Commission to make good the damage;

— order the Commission to pay the costs of the proceedings.

24.11.2007

EN

Official Journal of the European Union

C 283/41

Pleas in law and main arguments

This action seeks the annulment of Commission Decision
C(2007) 3893 of 8 August 2007, by which the defendant made
a financial correction in the assistance granted by the European
Regional Development Fund (ERDF) to the applicant for the
development of a ‘Rete di piazze telematiche [infrastructure for
universal access to information highways] per la Città di Napoli’,
together with compensation for the damage caused by that deci-
sion.

In support of its application for annulment of the contested
decision, the applicant makes the following submissions:

— The decision is illogical, inadequate and completely wanting
any legal and factual grounds,
insofar as the Commission
deliberately failed to take account of all the parameters (both
as to form and substance) which should have been examined
for the purposes of the correct application of Article 24 of
Regulation No 4253/88 and, consequently, its own assess-
ment as to whether the applicant is responsible for the irre-
gularities of which it is accused is irremediably vitiated.

— The concept of

irregularity in Article 24 of Regulation
No 4253/88 has been misinterpreted and misapplied,
insofar as the objections levelled against the applicant do
not come within the definition of
‘significant changes’
affecting the nature or conditions of the operation that is
being financed or, even less, within the category of ‘sums
received unduly’ for the purposes of the Community budget.

— The Commission is responsible for the initial delay of the
project, insofar as, even though the date for the initiation of
the Project and for the eligibility of expenditure was 1 July
1997, the funding agreement was approved by the Commis-
sion on 14 July 2007 and notified to the Comune di Napoli
only on 25 July 1997.

— The failure to take into account,

the purposes of
the entire
assessing the eligibility of
seven-month period which it
took the Commission to
approve the amended version of the project submitted by
the applicant.

for
the expenditure,

— The Commission incorrectly concluded that the discovery of
asbestos and the subsequent delay caused by its removal did
not constitute force majeure.

— The suspensory effect of

the Tribunale
Amministrativo Regionale was incorrectly limited to the
period between 2 August 2001 (date of the judgment) and

the judgment of

5 December 2001 (date when the judgment on appeal of
the Consiglio di Stato was notified to the applicant) and that
period was limited to invoices issued in connection with the
contract for the supply of computer technology, the subject
matter of the suspension itself.

— Breach of the principle of proportionality,

insofar as the
Commission totally failed to take account, for the purposes
of calculating the reduction in the assistance, of the fact that
the applicant had acted in good faith, that the (alleged) irre-
gularities were of a negligible nature and seriousness, that
the operation being financed was actually completed and,
lastly, the fact that the responsibility for the facts alleged
must be attributed in part to the Commission itself and in
part to force majeure.

— Breach of the obligation to state reasons, insofar as the Deci-
sion does not explain why the alleged irregularities are to be
regarded as ‘significant’.

— As regards compensation for damage, the applicant submits
that, even if the Commission's conduct were not found to
be unlawful, it has nonetheless caused damage to the appli-
cant. The decision ordering repayment, in particular, caused
wholly unforeseeable and exceptional damage, especially in
view of the fact that the operation was completed success-
fully and with the congratulations of the Commission itself.

Order of the Court of First Instance of 5 September 2007
— ReckittBenckiser v OHIM

(Joined Cases T-2/05, T-3/05, T-49/05, T-118/05 and
T-119/05) (1)

(2007/C 283/74)

Language of the case: English

The President of the Court of First Instance (First Chamber) has
ordered that the case be removed from the register.

(1) OJ C 69, 19.3.2005.