Case C-513/08 P: Appeal brought on 26 November 2008 by Luigi Marcuccio against the order of the Court of First Instance (Fourth Chamber) of 9 September 2008 in Case T-143/08 Marcuccio v Commission
Date: 2008-11-26
Institutions: Court of Justice
Subjects: Italy, action for annulment (EU), appeal, health expenditure, physician, redemption, social security

7.2.2009

EN

Official Journal of the European Union

C 32/19

Reference for a preliminary ruling from the Bundes-
lodged on 25 November 2008
gerichtshof
v
— Verbraucherzentrale Nordrhein-Westfalen

(Germany)

e.V.

Handelsgesellschaft Heinrich Heine GmbH

(Case C-511/08)

(2009/C 32/30)

Form of order sought

— 1. In any event:

(1.a) Annul the order under appeal in its entirety;

Language of the case: German

(1.b) Declare the original action to be fully admissible;

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Verbraucherzentrale Nordrhein-Westfalen e.V.

Defendant: Handelsgesellschaft Heinrich Heine GmbH

Question referred

Are the provisions of Article 6(1), sentence 2, and Article 6(2)
of Directive 97/7/EC of the European Parliament and of the
Council of 20 May 1997 on the protection of consumers in
respect of distance contracts (1) to be interpreted as precluding
national
legislation which allows the costs of delivering the
goods to be charged to the consumer even where he has with-
drawn from the contract?

and in addition

— 2/A as a primary remedy: (2/A.1) annul the contested deci-
sion; (2/A.2) annul, in so far as necessary, calculation No 58;
(2/A.3) annul, to the extent necessary, the decision to reject
the complaint in full; (2/A.4) order the defendant to pay to
the appellant, on an interim basis, the sum of EUR 324.09
or such higher or lower amount as the Court may deem to
be just and equitable; (2A/.5) order the defendant, in so far
as necessary, to pay to the appellant, in accordance with the
applicable rules, the sum which is due to him but remains
unpaid in respect of the cost of his medical examination of
28 September 2005; (2/A.6) order the defendant to pay to
the appellant default interest on the amounts referred to at
2/A.4 and 2/A.5, for the period from the date on which
they became due until the date of actual payment, to be
determined in accordance with the applicable rules: (2/A.7)
order the defendant to pay to the appellant all the costs and
expenses of the proceedings;

or

(1) OJ L 144, p. 19.

— 2/B. in the alternative, to refer the case back to the Court of

First Instance for a fresh decision.

Appeal brought on 26 November 2008 by Luigi Marcuccio
against the order of the Court of First Instance (Fourth
Chamber) of 9 September 2008 in Case T-143/08
Marcuccio v Commission

(Case C-513/08 P)

(2009/C 32/31)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvo-
cato)

Other party to the proceedings: Commission of
Communities

the European

Pleas in law and main arguments

1. Distortion and misrepresentation of the facts and the state-
ments of the appellant in his written pleadings, arising also
from the material inaccuracy of the findings of the Court of
First Instance (in particular, paragraphs 36, 38, 39 and 41 of
the order under appeal).

2. Misinterpretation and misapplication of

in addition, confusion,

the concept of a
challengeable act, and,
irrationality,
illogicality, infringement of Article 231 of the EC Treaty and
failure to have regard to the case-law relating to the effects of
the annulment by the Community judicature of a decision
issued by a Community institution, infringement of the prin-
ciple of res judicata and infringement of the principle of the
separation of powers (in particular, paragraphs 39 and 41 of
the order under appeal).