CELEX: C1996/180/87
Language: en
Date: 1996-06-22 00:00:00
Title: Action brought on 17 April 1996 by Oleifici Italiani SpA and F.lli Rubino Industrie Olearie SpA against the Commission of the European Communities (Case T-54/96)

22 . 6 . 96               EN                  Official Journal of the European Communities                                   No C 180/35
Article 5 (4 ) which is the only provision applicable in this            Pleas in law and main arguments:
case .
                                                                         The applicants complain that the Commission failed, in the
In the alternative, even assuming that Sogecable were                    context of its task of monitoring trade between Member
'jointly controlled' by Prisa and Canal Plus Francia, as the             States, public health and consumer protection, to introduce
Commission maintains, the applicant states, first, that Prisa            appropriate measures for the protection of public health on
and Canal Plus Francia would not jointly have any of the                 the outbreak of bovine spongiform encephalitis ( BSE),
powers and rights set out in Article 5 ( 4 ) ( b ) and, secondly,        known as ' mad cow disease '. They state that the steps taken
that, even if they jointly had the powers and rights laid down           by the Commission since 1 988 to prevent the spread of BSE,
in Article 5 ( 4 ) ( b ), their turnover should not be added to          and possibly Creutzfeldt-Jacob's disease, must be regarded
Sogecable's turnover, pursuant to Article 5 ( 4 ) ( c ).                 as inadequate, having regard to the embargo measures
                                                                         precipitately decided on 26 March 1996 by that same
                                                                         Commission, which nevertheless has no more information
                                                                         than previously on any potential risk. The applicants
                                                                         maintain that the Commission is liable, inasmuch as it
                                                                         breached the principle of proportionality and made an
                                                                         incorrect assessment of the facts, giving rise to a risk to
                                                                         public health and consumers and having a manifest impact
                                                                         on trade in bovine livestock in the European Union .
Action brought on 16 April 1996 by Syndicat des
Producteurs de Viande Bovine de la Coordination Rurale,
Syndicat des Producteurs de Lait de la Coordination Rurale               Although the first recorded case of mad cow disease dates
and Philippe de Villiers against the Commission of the                   from 1986 , on a farm in Kent in the United Kingdom, and
                      European Communities                               despite numerous communications, scientific and
                                                                         journalistic, confidential and public, on the risks of the
                            ( Case T-53/96 )
                                                                         spread of BSE and the risks of human contamination, the
                              ( 96/C 180/86 )                            Commission, on the pretext of a lack of scientific certainty,
                                                                         failed to take the only measure to be taken in the face of a
                                                                         public health risk, namely the total prohibition of exports
                (Language of the case: French)                           and the possible slaughter of herds .
An action against the Commission of the European                         The applicants consider that the Commission failed to
Communities was brought before the Court of First                        perform its obligation to supervise and monitor
Instance of the European Communities on 16 April 1996 by                 intra-Community trade . As a result of that failure, they, like
the Syndicat des Producteurs de Viande Bovine de la                      any other European citizen, have suffered non-material
Coordination Rurale and the Syndicat des Producteurs de                  damage for which they seek reparation; some of the
Lait de la Coordination Rurale, established at L'Isle                    applicants also claim to have suffered material damage, the
Jourdain ( France ), and Philippe de Villiers , residing at Les          extent of which is to be established in the course of the
Aubretières ( France ), represented by Alexandre Varaut, of              proceedings .
the Paris Bar .
The applicants claim that the Court should:
— declare the European Commission liable, on the basis of
     Article 178 and the second paragraph of Article 215 of
     the Treaty on European Union, for failure to introduce              Action brought on 17 April 1996 by Oleifici Italiani SpA
     measures for the protection of public health on the                  and F.lli Rubino Industrie Olearie SpA against the
     outbreak of bovine spongiform encephalitis, known as                            Commission of the European Communities
     mad cow disease ;
                                                                                                      ( Case T-54/96 )
                                                                                                        ( 96/C 180/87
— order the European Union to pay the Syndicat des
     Producteurs de Viande Bovine de la Coordination
     Rurale, the Syndicat des Producteurs de Lait de la                                      (Language of the case: Italian)
     Coordination Rurale and Philippe de Villiers the sum of
     FF 1 as token damages for the non-material damage
     suffered;
                                                                          An action against the Commission of the European
                                                                          Communities was brought before the Court of First
— appoint such expert as the Court may think fit to                       Instance of the European Communities on 17 April 1 996 by
     determine the loss suffered by the members of the                    Oleifici Italiani SpA, whose registered office is at Ostuni
     Syndicat des Producteurs de Viande Bovine de la                      ( BR ) ( Italy ), and F.lli Rubino Industrie Olearie SpA, whose
     Coordination Rurale and the Syndicat des Producteurs                 registered office is at Bari ( Italy ), represented by Antonio
     de Lait de la Coordination Rurale .                                  Tizzano and Gianmichele Roberti, both of the Naples Bar,
 ---pagebreak--- No C 180/36            EN                Official Journal of the European Communities                                       22 . 6 . 96
with an address for service at the Chambers of Tizzano, 36          of the applicants sent the Spanish laboratory three samples
Place du Grand Sablon, Brussels .                                   of olive oil from the impounded oil containers . The second
                                                                    analysis carried out by that laboratory acknowledges that,
                                                                    where the other values comply with the standard, a wax
The applicant claims that the Court should :                        content above the limit does not of itself indicate the
                                                                    presence of oil of olive residues ( and therefore irregular
                                                                    mixing), since it arises from an altogether natural chemical
— annul the Commission's decision, contained in the letter          process due to the ageing of the oil . The findings of the
    from Mr G. Legras, the Director-General of Directorate          Spanish laboratory were fully confirmed by the results of the
    General Agriculture ( DG VI ) — Directorate G,                  investigation ordered by the Italian judicial authorities .
    European Agricultural Guidance and Guarantee Fund
     ( EAGGF ) — of 7 February 1996 ( Case No VI/000513 )
    which provided for the blocking of all payment owed for         Following the results of the latest analyses, the Commission
    the warehousing of olive oil in the 1991 /92 and 1992/93        acknowledged that the oil in question should be bought in
    marketing years,                                                 ( letter to AIMA from the Director of DG VI of 2 October
                                                                     1 995 , letter to AIMA from the Director-General of DG VI of
                                                                    23 November 1 995 and letter from the Director of DG VI of
— order the harm suffered by the applicant as a                     6 February 1996 ). Despite the unequivocal position adopted
    consequence of the alleged unlawful conduct to be made          by the Commission, the Director-General of DG VI, by
    good by the Commission,                                         letter of 7 February 1996 , asked the Member State to take
                                                                    steps to carry out further analysis on the samples in the
— order the Commission to pay the costs .                           possession of the EAGGF at an independent laboratory , to
                                                                    inform the interested parties thereof and, in the meantime,
                                                                    to block any security and/or payment relating to the oil in
                                                                    question . In view of such conduct, the applicants brought
Pleas in law and main arguments:                                    the present action .
The applicants have for some years been registered in the           The applicants claim that the letter of 7 February 1 996 , in so
Albo degli Assuntori ( Register of Contractors ) of the             far as it imposes a block on payment as such and on the
Azienda per gli Interventi nel Mercato Agricola ( State Board       security in respect of the abovementioned oil , is a retroactive
for Intervention in the Agricultural Market, 'AIMA'). In            revocation of a lawful act which confers rights or
that capacity, they are responsible for intervention                advantages to individuals . Such a revocation, according to
operations in the olive oil market in accordance with               consistent case-law, is to be considered contrary to the
Community law. For the marketing years 1991 /92 and                 general principles of law recognized by the Community legal
1992/93 , the applicants bought in 16 653 566 tonnes of             system and in particular to the fundamental principle of
virgin olive oil . Upon the oil entering into store, AIMA           protection of acquired rights . The applicants point out,
carried out the control and analysis prescribed by                  however, that, irrespective of such a breach, the
Community law. Since it found the stored oil to be in full          abovementioned letters of the Commission of 2 October
compliance , AIMA itself duly paid the corresponding                and 23 November 1995 were such as to give rise to at least a
proprietors of that oil .                                           legitimate expectation in respect of the applicants as regards
                                                                    the conformity of the oil held by them and that the relevant
In November 1 993 , the EAGGF department of DG VI at the            payments would be made . The subsequent unforeseen and
Commission decided to carry out a general inquiry into the          unjustified u-turn by the Commission is in sharp contrast
bought-in oil in Italy .                                            with the principle of respect for legitimate expectations laid
                                                                    down throughout the Community's case-law. Furthermore ,
                                                                    the applicants consider that the Commission, in deciding to
In the context of that check samples were taken of the oil          block payments, misused its powers and committed a
and were sent to a Spanish laboratory for analysis. The             manifest error of assessment of material facts . Finally, the
analysis showed that, with the exception of the wax levels,         applicants point out that the Commission has not complied
the oil tested showed values fully in compliance with the           with the requirements of proportionality inasmuch as it
criteria laid down by the Community system . However, in            requested by letter of 7 February 1996 the blocking of
view of the discrepancy with regard to waxes, the laboratory        payment not only for the consignments of the ' disputed' oil
concluded that there was some olive-residue oil in the             — that is consignments in which a high level of wax had
sample tested. The Commission, taking into account the              been found — but also for the consignments of oil inwhich
objections and the requests submitted by the Italian                no abnormality had been found in the wax levels .
authorities, upheld the request to proceed to a second check
at an Italian laboratory. The findings of the Commission
concerning the alleged anomalies of the oil in question            The applicants further seek compensation for damage
however prevented payment to the contractors of the                 ( actual losses and lost profits ) caused by the alleged conduct
amounts due to them .                                               of the Commission , within the meaning of Articles 178 and
                                                                    215 of the Treaty .
At the end of March 1995 , the Italian judicial authorities
also undertook an investigation into the oil in question,
ordering, inter alia, that it be impounded . In June 1995 , one