CELEX: C1995/074/07
Language: en
Date: 1995-03-25 00:00:00
Title: Appeal brought on 26 January 1995 by San Marco Impex Italiana SRL against the judgment delivered on 16 November 1994 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-451/93 between San Marco Impex Italiana SRL and the Commission of the European Communities (Case C-19/95 P)

25 . 3 . 95              EN                 Official Journal of the European Communities                                   No C 74/5
          contributions is lower for immigrants and emigrants          Reconsider the claim of the Appellant and:
          in the year in which they move than for persons who,
          in otherwise similar circumstances, retain the same          1 . order the Commission to pay to the Appellant a total
          residence throughout the whole year ?                             amount of ECU 4 389 498,40,
5 . (a ) If a heavier contributions burden, as referred to in               interest at the rate of 8 % as of 6 July 1992,
           question 3 , is incompatible with Article 7 or
           Article 48 ( 2 ) of the EEC Treaty, or with any other            legal costs and expenses including legal fees,
           rule of Community law, should there be taken into
           account, in determining whether in any specific case        2 . SUBSIDIARILY,
           a heavier burden is actually involved, only income
           from employment or, in addition, other income                    order the Commission to pay to the Appellant the
           received by the person concerned, such as profits                amount of ECU 2 504 280,07 representing:
           from real property ?
                                                                             (a ) the balance of ECU 148 192,09 for incorrect
     ( b ) If other income apart from earnings from                                processing of invoices;
           employment is to be left out of consideration, how
            is it to be determined whether, and to what extent,              ( b ) the undisputed balance of ECU 483 830,65 for
           the levying of contributions on income from                             pending invoices;
           employment places the migrant worker concerned
            at a disadvantage ?                                              (c) the compensatory costs arising out of cancellation
                                                                                   of the Contract i.e. ECU 1 922 258 ;
6 . ( a ) If in the present case there was an infringement of
            any rule of Community law, is the national court                 interests at the rate of 8 % as of 6 July 1992;
            obliged to nullify that infringement even if to do so
            would require a choice between different                         legal costs and expenses including legal fees.
            alternatives each of which entails advantages and
            disadvantages ?                                            Pleas in law and main arguments adduced in support:
     ( b) If the national court in this case does nullify an
            infringement of EC law, does Community law                 First bead of claim — non-payment of certain invoices
            provide any directions as to the choice which the
            national court should make between different               In finding that the Commission delegate was entitled to
            conceivable solutions ?                                    refuse to endorse certain invoices relating to price increases
                                                                       for materials and to the increased unit-price of the sub-base
                                                                       for the access roads to the bridges whose construction was
                                                                       the subject of the contract, the Court of First Instance
                                                                       incorrectly interpreted the facts at its disposal and this led to
                                                                       an improper application of the law.
Appeal brought on 26 January 1995 by San Marco Impex
Italians SRL against the judgment delivered on                         The Court of First Instance misapplied the rules governing
16 November 1994 by the Fifth Chamber of the Court of                  the contract for the Juba and Shebelli bridges when it held
First Instance of the European Communities in case                     that the Appellant was not contractually obliged to comply
T-451/93 between San Marco Impex Italiana SRL and the                  with and adhere strictly to the instructions given by
           Commission of the European Communities                      Consulint, the consulting engineers hired by the Somali
                           Case C- 19/95 P)                            government to supervise the works .
                             ( 95/C 74/07)
                                                                       The Commission misapplied the rules governing the
An appeal against the judgment delivered on 16 November                contract in its processing of the invoices and should have
1994 by the Fifth Chamber of the Court of First Instance of            been held liable by the Court of First Instance for this
the European Communities in case T-451/93 between San                  obviously wrongful act.
Marco Impex Italiana SRL and the Commission of the
European Communities, was brought before the Court of                  The Appellant's legitimate expectations were breached:
Justice of the European Communities on 26 January 1995
by San Marco Impex Italiana SRL, represented by Lucette                ( a) by the delegate in refusing to endorse the invoices and
Defalque, of the Brussels Bar, with an address for service in                  by the Commission and its delegate in refusing payment
Luxembourg at the Chambers of Alex Schmitt, 62 Avenue                          of endorsed invoices;
Guillaume .
                                                                       ( b ) by the Commission in refusing to sign Addendum No 1 ,
The Appellant claims that the Court should:                                    which it had prepared after having announced the grant
                                                                               of the funds;
Review the Decision of 16 November 1994 of the Court of
First Instance in Case T-451/93 ;                                              and
 ---pagebreak---  No C 74/6           1 EN |               Official Journal of the European Communities                                   25 . 3 . 95
 (c) by the Commission delegate in not paying the Somalian           Action brought on 2 February 1995 by the Federal Republic
      part of the invoices for which the Italian part had been       of Germany against the Commission of the European
      paid.                                                                                   Communities
                                                                                             (Case C-23/95 )
 The Appellant submits that the Court of First Instance's
 assessment of its claim was wrong and that its dismissal of                                  ( 95/C 74/09 ) •
 the claim was unfounded .
 The Appellant also submits that the Court of First Instance         An action against the Commission of the European
 was wrong in considering that the Appellant had not                 Communities was brought before the Court of Justice of the
 produced evidence that the Commission's administration              European Communities on 2 February 1995 by the Federal
 failed to operate correctly.                                        Republic of Germany, represented by Ernst Roder
                                                                     (Ministerialrat), Bundesministerium fur Wirtschaft, Bonn,
 Second head of claim — the failure of the Commission to             D-53107.
pay compensation following termination of the contract
The Commission did not give adequate reasoning for its
 decisions and thus infringed the general principle of law laid      The applicant claims that the Court should :
 down in Article 190 of the Treaty.
The Appellant submits that Article 60 of the Financial              — declare void Articles 1 ( 2) and 2 of Commission
 Regulation applicable to the Fifth European Development                 Regulation (EEC ) No 2791/94 of 16 November 1994 on
 Fund and Article 93 ( 1 ) of the General Conditions were                the exceptional allocation of a quantity additional to the
incorrectly interpreted and applied and that there was an                tariff quota for imports of bananas in 1994 as a result of
incorrect appreciation of the Commission's duty to meet the              tropical storm Debbie (*);
Appellant's claims.
The Appellant also submits that Article 60 of the                   — order the defendant to pay the costs.
abovementioned Financial Regulation imposes on the
Commission a general duty to safeguard the interests of
Community enterprises working in unfavourable financial
environments and that the Commission failed to discharge             Pleas in law and main arguments adduced in support:
this duty.
Finally, the Appellant contends that the Court of First              Lack of a legal basis for the way in which the additional
Instance incorrectly assessed the fault committed by the            quantities have been allocated: Article 16 ( 3 ) of Council
Commission which led to the damage existing at the time of
termination of the contract.
                                                                    Regulation (EEC ) No 404/93 may support the increase in
                                                                    the import tariff quotas, but not a departure from the
                                                                    method of calculation laid down in Article 19 ( 1 ) of Council
                                                                    Regulation ( EEC ) No 404/93 on the common organization
                                                                    of the market in bananas; precisely in the event of an
                                                                    increase in the tariff quota in 'exceptional circumstances',
Reference for a preliminary ruling by order of the Juzgado          Article 19 (4) of the Council Regulation provides that the
Central de lo Penal de la Audiencia Nacional of 18 January          allocation should be made by the method laid down in
      1995 in criminal proceedings against Oscar Weg                Article 19 ( 1 ). If the Commission considers that it is not
                          (Case C-20/95 )                           adequate to compensate for the damage done by the storm,
                           ( 95/C 74/08 )                           it could ask the Council to alter the Regulation. Since the
                                                                    Commission is derogating from a Regulation expressly
Reference has been made to the Court of Justice of the              adopted by the Council, the measures cannot be regarded as
European Communities by order of the Juzgado Central de             implementing measures within the meaning of Article 20 of
lo Penal de la Audiencia Nacional ( Central Criminal Court,         the Council Regulation, either. Article 30 of the Council
National High Court) of 18 January 1955 , which was                 Regulation contemplates transitional measures only in
received at the Court Registry on 30 January 1995 , for a           order to overcome difficulties experienced in adapting the
preliminary ruling in criminal proceedings against Oscar            existing national market organization to the new EC banana
Weg.                                                                market rules . Storm damage is not confined to the period of
                                                                    adaptation or transition from one market organization to
                                                                    another.
The questions referred by the Juzgado Central del lo Penal
de la Audiencia Nacional to the Court of Justice for a
preliminary ruling are identical with those in Joined Cases
C-163/94 and C-165/94 I 1 ).                                        (In the alternative) Insufficient grounds (Article 190 of the
                                                                    EC Treaty). There is no indication of the extent of the
(!) OJ No C 218 , 6 . 8 . 1994, p . 14 .                            damage. If the damage is lost production in the amount of
                                                                    the additional quota the compensation is more than is
                                                                    necessary, because importers obtain more profit from