CELEX: C1996/370/33
Language: en
Date: 1996-12-07 00:00:00
Title: Action brought on 6 August 1996 by Federazione Italiana del Commercio Oleario against Commission of the European Communities (Case T-122/96)

7 . 12 . 96           EN                   Official Journal of the European Communities                                 No C 370/ 15
Action brought on 6 August 1996 by Federazione Italiana               discrimination laid down in the second subparagraph of
del Commercio Oleario against Commission of the                       Article 40 ( 3 ) of the Treaty, under which the conditions
                    European Communities                              applying to production or consumption may differ solely on
                        ( Case T-122/96 )                             the basis of objective criteria .
                          ( 96/C 370/33 )
                                                                      — Breach of the principle that penalties must be
                                                                           proportionate, lawful and clear
                 (Language of the case: Italian)
An action against the Commission of the European                      Penalties are the legal system 's response to infringements of
Communities was brought before the Court of First                     a rule . Consequently, it is not lawful to provide for a
Instance of the European Communities on 6 August 1996                 penalty in cases where it can be proved that a living
by the Federazione Italiana del Commercio Oleario                     substance has undergone a change owing to natural causes
( Federolio ), whose headquarters are in Rome, represented            and not because of unlawful conduct on the part of the
by Livia Magrone Furlotti , of the Rome Bar, with an                  beneficiary of aid.
address for service in Luxembourg at the Chambers of
Marc Loesch, 11 Rue Goethe .
                                                                      Penalties must be commensurate with infringements and ,
                                                                      where no infringement can be found, no penalty can be
The applicant claims that the Court should :                          applied . Setting a penalty in cases of liability essentially
                                                                      without fault is unlawful on that ground also . For the
                                                                      packaging undertakings to bear such liability, being held
— annul Article 1 of Commission Regulation ( EC ) No 887/             accountable for quality variations in the product — which
     96 of 15 May 1996 amending Regulation ( EEC )                    are not only unconnected to voluntary actions on their part
     No 2677/85 laying down implementing rules in respect             but are also beyond their ability to control or alleviate —
     of the system of consumption aid for olive oil ( ! ),            goes beyond the purpose of the Community legislation on
                                                                      prevention of fraud connected to the receipt of aid .
                                                                      Consequently, it is a breach of the fundamental principle of
— order the Commission to pay the costs .                             proportionality.
Pleas in law and main arguments adduced in support:
                                                                      — Breach and misapplication              of the principle of
                                                                           impartiality
Federolio, a trade organization with responsibility for
distributing the aid for olive oil packaging undertakings,
seeks annulment of Regulation ( EC ) No 887/96 in so far as           Lack of adequate sampling procedures, or safeguards on the
it provides for a system of penalties based on liability              rules governing the taking and keeping of samples, exposes
essentially without fault, that is, they arise where a product        the packaging undertakings to the risk that they may
fails to comply with the product characteristics set out in           repeatedly be subjected to the checks and penalties
the tables annexed to Regulation ( EEC ) No 2568/91 ,                 provided for in the contested Regulation .
irrespective of whether such non-compliance was brought
about by the person penalized.
                                                                      — Misuse of powers — Infringement under the second
                                                                          paragraph of Article 173 of the Treaty
Federolio puts forward the following pleas in support of its
application:
                                                                      The Commission — by providing in the contested
— Breach of the principle of equal treatment                          Regulation that penalties are to be applied even in cases
                                                                      where the discrepancy with the definition laid down in
                                                                      Regulation ( EEC ) No 2568/91 is not due to fraud or fault
Whereas production aid is distributed without quality                 — undermines the reasoning on which the Community
checks or penalties where products do not match quality               legislation concerning the prevention of unlawful receipt of
requirements, the contested Regulation concerning                     aid is based, thereby obstructing the system of aid for the
consumption aid (which the applicant maintains is parallel            Community market in olive oil . The packaging
to production aid ) provides for very heavy financial                 undertakings will prefer to forego aid rather than incur
penalties to be imposed solely on packaging undertakings,             heavy penalties which are imposed independently of any
for the slightest discrepancy between a product and one of            responsibility whatsoever, and thus constitute a risk which
the 28 definitions set out in Regulation ( EEC ) No 2568/91 .         is totally beyond their control and cannot be affected by
                                                                      their management policies.
Such unequal treatment is not objectively justified and the
                                                                      (•) OJNoL 119 , 16 . 5 . 1996 , p . 16 .
discrimination between producers and other operators, on
the one hand, and packagers, on the other, is therefore
unacceptable. It is contrary to the principle of non­