Case T-367/08: Action brought on 5 September 2008 — Abouchar v Commission
Date: 2008-09-05
Institutions: Court of First Instance
Subjects: European Development Fund, action for annulment (EU), farming project, infringement of EU law, small and medium-sized enterprises

8.11.2008

EN

Official Journal of the European Union

C 285/49

— deduct the sum of EUR 609 833,96 from the correction
imposed of EUR 127 714 520,73 and from any correction
that may be imposed after the bringing of
the present
action;

— order the Commission to pay the costs.

Pleas in law and main arguments

Action brought on 5 September 2008 — Abouchar v
Commission

(Case T-367/08)

(2008/C 285/89)

Language of the case: French

8

2008,

action for
of
3411

annulment of Commission Decision
In this
C(2008)
under
July
No 2008/582/EC, which excludes expenditure amounting to
EUR 127 714 520,73 incurred by the Hellenic Republic from
Community financing,
in the context of the clearing of the
accounts of the European Agricultural Guidance and Guarantee
Fund (EAGGF), the applicant puts forward the following pleas in
support of the claim for annulment.

published

it

is

of
of

Article

Article

1(3)
58

submitted that

3508/92 (1),
1593/2000 (2),

Regulation
Regulation
and Article 20 of Regulation

By the first plea for annulment, which concerns the correction
applicable to durum wheat crops and to matters other
the Commission
than durum wheat,
misinterpreted and misapplied Article 4 of Regulation (EEC)
No
(EC)
No
(EC)
No 445/2002 (3)
(EC)
No 1782/2003 (4) since it is permissible, on the basis of the
provisions in question, to identify land using alternative carto-
graphic material
to orthophoto maps, or
otherwise that the Commission erred in its assessment of the
facts and stated inadequate reasons for the corrections. The
legal basis for imposing the
applicant also pleads a lack of
correction since the Commission misinterpreted the facts and
exceeded the limits of
its discretion, so far as concerns its
determination that the on-site checks were not carried out in
time.

is equivalent

that

In the second plea for annulment, the applicant alleges a lack of
lawful basis and of a sufficient statement of reasons, with regard
to the alleged repetition of breaches and infringement of the
principles of proportionality and of the protection of legitimate
expectations, because, according to the applicant, the Commis-
sion had been informed of the court proceedings that were
delaying the completion of the system of control and, on its
recommendation and in cooperation with it,
the applicant
engaged in an action plan for that purpose.

(1) Council Regulation (EEC) No 3508/92 of 27 November 1992 estab-
lishing an integrated administration and control system for certain
Community aid schemes (OJ 1992 L 355, p. 1).

(2) Council Regulation (EC) No 1593/2000 of 17 July 2000 amending
Regulation (EEC) No 3508/92 establishing an integrated administra-
tion and control
system for certain Community aid schemes
(OJ 2000 L 182, p. 4).

(3) Commission Regulation (EC) No 445/2002 of 26 February 2002
laying down detailed rules for the application of Council Regulation
(EC) No 1257/1999 on support for rural development from the
European Agricultural Guidance and Guarantee Fund (EAGGF)
(OJ 2002 L 74, p. 1).

(4) Council Regulation (EC) No 1782/2003 of 29 September 2003
establishing common rules for direct support schemes under the
common agricultural policy and establishing certain support
schemes for farmers and amending Regulations (EEC) No 2019/93,
(EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC)
1868/94,
(EC)
No 1673/2000,
(EEC) No 2358/71 and (EC) No 2529/2001
(OJ 2003 L 270, p. 1).

(EC) No 1251/1999,

(EC) No 1254/1999,

Parties

Applicant: Michel Abouchar (Dakar, Senegal) (represented by: B.
Dubreuil Basire and J-J. Lorang, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Declare that officials of

the Commission/EDF committed

intentional torts in the performance of their tasks;

— declare that the Commission/EDF infringed Article 155 EC
and Article 311 of the Fourth Lomé Convention and the
general principles of sound administration, duty of care and
the protection of legitimate interests;

— declare that those torts directly gave rise to harm to the
applicant and order the Commission/EDF to pay him jointly
and severally, for all the damage he suffered, the sum of
EUR 4 500 000 by way of damages and interest;

— order the Commission/EDF to pay the applicant the sum of
EUR 100 000 as irrecoverable expenditure which the appli-
cant had to incur;

— order

the Commission to pay the entire costs of

the

proceedings.

Pleas in law and main arguments

implementing rules of

By means of his action for non-contractual liability, the appli-
cant is seeking to obtain a declaration that the Commission
infringed the financial
the Sixth and
Seventh European Development Fund (‘the EDF’) and of the so-
called ‘Lomé III’ and ‘Lomé IV’ (1) Conventions linking the Com-
munity with the African, Caribbean and Pacific States (‘ACP’), in
the context of managing resources of the EDF concerning a
project to finance Small and Medium Enterprises in the region
of Saint-Louis of Senegal.

In this case, the applicant, the beneficiary of a loan for a vege-
table farm project in the eligible region, takes the view that
funds allegedly
management errors and misappropriation of
imputed to Commission officials had the effect of immediately
paralysing his farming project set up under the European Devel-
opment Fund.

C 285/50

EN

Official Journal of the European Union

8.11.2008

The applicant essentially relies on two Commission failures,
capable of giving rise to non-contractual liability on the part of
the Commission. More precisely,
first,
errors committed by officials when carrying out their duties,
and, secondly, a failure to monitor funding awarded by the
Commission, breach of Articles 155 EC and Article 311 of the
Fourth Lomé Convention, and of
the general principles of
sound administration, duty of care and protection of legitimate
expectations.

the applicant alleges,

(1) Since 23 June 2000, the Lomé Convention has been replaced by the
Cotonou Agreement (OJ 2000 L 317, p. 3). The applicant still refers
in his application, however, to the Lomé III and IV Conventions.

Action brought on 3 September 2008 — Nuova Agricast
Srl v Commission

(Case T-373/08)

(2008/C 285/90)

Language of the case: Italian

— EUR 2 009 197,00, or such other sum as may be deter-
mined in the course of the proceedings, by way of compen-
sation for the loss of income in the normal management of
the undertaking in the financial year ending 30 June 2005
compared with the income it would have had if the invest-
ment programme had been completed, revalued from 1 July
2005 until the date of judgment; and

— EUR 1 830 564,00, or such other sum as may be deter-
mined in the course of the proceedings, by way of compen-
sation for the loss of income in the normal management of
the undertaking in the financial year ending 30 June 2006
compared with the income it would have had if the invest-
ment programme had been completed, revalued from 1 July
2006 until the date of judgment; and

— EUR 1 947 081,00, or such other sum as may be deter-
mined in the course of the proceedings, by way of compen-
sation for the loss of income in the normal management of
the undertaking in the financial year ending 30 June 2007
compared with the income it would have had if the invest-
ment programme had been completed, revalued from 1 July
2007 until the date of judgment;

— interest on the sums as revalued, calculated from the date of
judgment until satisfied in full, at
the rate set by the
European Central Bank for main refinancing operations,
plus the number of percentage points considered by the
Court to be just, which, in the applicant's view, should be
not fewer than two; and

— the costs of the proceedings, including those of the party's

technical consultancy for 2008.

Parties

Applicant: Nuova Agricast Srl (Cerignola, Italy) (represented by:
M.A. Calabrese, lawyer)

Pleas in law and main arguments

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court of First Instance should
order the defendant to pay it:

— EUR 1 447 249,00, or such other sum as may be deter-
mined in the course of the proceedings, by way of compen-
sation for the loss of income in the normal management of
the undertaking in the financial year ending 30 June 2003
compared with the income it would have had if the invest-
ment programme had been completed, revalued from 1 July
2003 until the date of judgment; and

— EUR 1 432 497,00, or such other sum as may be deter-
mined in the course of the proceedings, by way of compen-
sation for the loss of income in the normal management of
the undertaking in the financial year ending 30 June 2004
compared with the income it would have had if the invest-
ment programme had been completed, revalued from 1 July
2004 until the date of judgment; and

This present action is the natural continuation of the action in
inter alia, an
in which the applicant sought,
Case T-362/05,
order that the Commission pay it compensation for loss of
profit, consisting of the difference between the income from
normal management recorded in balance sheets drawn up on
30 June 2003 and, subsequently, on 30 June 2004, 2005, 2006
and 2007, and the income that would have been obtained from
normal management if the projected investment funds had been
paid in full.

By the present action, the applicant charges the Commission
with the same (or virtually the same) unlawful acts previously
alleged in Case T-362/05. The same complaints concerning the
acts and conduct of the defendant are also set out in this appli-
cation, but take account of the ruling of the Court of Justice of
the European Communities
judgment delivered on
15 April 2008 in Case C-390/06 P Nuova Agricast v Commission.

in its