CELEX: C2003/158/17
Language: en
Date: 2003-07-05 00:00:00
Title: Case C-173/03: Reference for a preliminary ruling by the Il Tribunale di Genova by order of that Court of 20 March 2003 in the action brought by Fallimento "raghetti del Mediterraneo"SPA, in liquidation, against Italian Republic

C 158/10               EN                          Official Journal of the European Union                                         5.7.2003
Reference for a preliminary ruling by the Il Tribunale di                  J.R. Iturriagagoitia and K. Delvolvé, lawyers. The appellant
Genova by order of that Court of 20 March 2003 in the                      claims that the Court should:
action brought by Fallimento ‘raghetti del Mediterraneo’-
        SPA, in liquidation, against Italian Republic
                                                                           principally:
                         (Case C-173/03)
                                                                           —     declare that the appeal is admissible and founded,
                         (2003/C 158/17)
                                                                           —     set aside the second point of the operative part of the
                                                                                 judgment delivered by the Court of First Instance on
                                                                                 26 February 2003 in Case T-145/01;
Reference has been made to the Court of Justice of the
European Communities by order of the Il Tribunale di Genova
(Genoa District Court) of 20 March 2003, received at the                   in the alternative:
Court Registry on 14 April 2003, for a preliminary ruling in
the action brought by Fallimento ’Traghetti del Mediterraneo’              —     annul the express decision of the Appointing Authority
SPA, in liquidation, against Italian Republic on the following                   of 10 August 2000 not to acknowledge the occupational
questions:                                                                       origin of his arthritic symptoms following his request of
                                                                                 7 May 1996;
1.   Is a Member State liable on the basis of non-contractual
     liability to individual citizens for errors by its own judges
     in the application of Community law or the failure to                 in any event:
     apply it correctly and in particular the failure by a court
     of last instance to discharge the obligation to make a                —     make an order as to costs in accordance with the
     reference to the Court of Justice under the third paragraph                 applicable provisions of the Rules of Procedure.
     of Article 234.
2.   Where a Member State is deemed liable for the errors of
     its own judges in the application of Community law and
                                                                           Pleas in law and main arguments
     in particular for failure by a court of last instance to make
     a reference to the Court of Justice under Article 234 EC,
     is affirmation of that liability negated in a manner                  —     First ground of appeal: Breach, by the Commission, of
     incompatible with the principles of Community law by                        Article 73 of the Staff Regulations and Article 3(2) of the
     national legislation on State liability for judicial errors                 Rules on the Insurance of Officials of the European
                                                                                 Communities against the Risk of Accident and of Occu-
     which:
                                                                                 pational Disease:
     —     precludes liability in relation to the interpretation of              The appellant contests the finding of the Court of First
           provisions of law and assessment of facts and of the
                                                                                 Instance that the Commission, in refusing to acknowledge
           evidence adduced in the course of the exercise of                     the occupational origin of his arthritic lesions on the
           judicial activity,
                                                                                 ground that it had not been sufficiently established, had
     —     limits State liability solely to cases of fraud and                   not infringed either Article 73 of the Staff Regulations or
           serious default on the part of the judge?                             Article 3(2) of the Rules on the Insurance of Officials of
                                                                                 the European Communities against the Risk of Accident
                                                                                 and of Occupational Disease.
                                                                           —     Second ground of appeal: Infringement of the delimi-
                                                                                 tation of the powers of Medical Committees
Appeal brought on 25 April 2003 by B. Latino against the                         The appellant claims that the Commission and the Court
judgment delivered on 26 February 2003 by the First                              of First Instance are in breach of the general principle of
Chamber of the Court of First Instance of the European                           law ‘semper in dubiis benigniora preferenda sunt’ in the
Communities in Case T-145/01 between B. Latino and the                           case of doubt as to the real cause of the symptoms and
        Commission of the European Communities                                   that there were irregularities in the procedure of the
                                                                                 Medical Committee. The second reference to the Medical
                        (Case C-180/03 P)                                        Committee was improper, first because once it had given
                                                                                 its first opinion, the Committee had become ‘functus
                         (2003/C 158/18)                                         officio’ and, secondly, because since it had already given
                                                                                 its opinion and included a member of the Medical Service
                                                                                 of the Commission, it did not fulfil the conditions
An appeal against the judgment delivered on 26 February                          of independence and impartiality required. Lastly, the
2003 by the First Chamber of the Court of First Instance of                      absence of Community rules on the procedure to be
the European Communities in Case T-145/01 between B. La-                         followed obliges Medical Committees to comply with the
tino and the Commission of the European Communities                              instructions which they receive from the institutions.
was brought before the Court of Justice of the European
Communities on 25 April 2003 by B. Latino, represented by