CELEX: C2003/171/16
Language: en
Date: 2003-07-19 00:00:00
Title: Case C-196/03 P: Appeal brought on 3 May 2003 by Arnaldo Lucaccioni against the judgment delivered on 26 February 2003 by the First Chamber of the Court of First Instance of the European Communities in Case T-164/01 between Arnaldo Lucaccioni and the Commission of the European Communities

19.7.2003              EN                         Official Journal of the European Union                                            C 171/11
Second ground:                 Erroneous interpretation and                           by exposing him to asbestos, a carcinogenic substan-
                               application of Articles 42 EC and                      ce which causes incurable serious illnesses,
                               43 EC.
                                                                                —     deliberately attempted against the appellant’s safety
                                                                                      at work, by seriously neglecting safety, assessed at
                                                                                      EUR 3 500 000 (ITL 7 000 000 000), by analogy
                                                                                      with the amounts ordered in respect of each of the
                                                                                      victims (totalling some EUR 500 000 or
                                                                                      ITL 1 000 000 000) in the judgment in Case 4840/
Appeal brought on 3 May 2003 by Arnaldo Lucaccioni                                    96 of 5 July 1996 delivered by the Pretura Circondar-
against the judgment delivered on 26 February 2003 by                                 iale di Torino (District Magistrate’s Court, Turin) and
the First Chamber of the Court of First Instance of                                   the compensation ordered for each of the victims of
the European Communities in Case T-164/01 between                                     the ‘Cermis’ cable car disaster, namely
Arnaldo Lucaccioni and the Commission of the European                                 ITL 4 000 000 000.
                           Communities
                                                                          3.    order the defendant to pay the costs incurred at first
                        (Case C-196/03 P)                                       instance and as a result of the appeal.
                         (2003/C 171/16)
                                                                          Pleas in law and main arguments
An appeal against the judgment delivered on 26 February
2003 by the First Chamber of the Court of First Instance of
the European Communities in Case T-164/01 between Arnaldo                 1.     The Court of First Instance found that the applicant had
Lucaccioni and the Commission of the European Communities                 already submitted on 15 May 1994 a request relating to non-
was brought before the Court of Justice of the European                   material damage suffered prior to the onset of the occupational
Communities on 3 May 2003 by Arnaldo Lucaccioni, rep-                     disease. That request was rejected by the appointing authority
resented by Mauro Cimino, with an address for service in                  by decision of 22 September 1994, against which the applicant
Fermo (AP) (Italy).                                                       brought a complaint on 15 December 1994, in which he no
                                                                          longer mentioned the alleged damage, in particular non-
                                                                          material damage, suffered prior to the onset of the occupational
The appellant claims that the Court should:
                                                                          disease; neither did he challenge before the Court of First
                                                                          Instance (Case T-165/95) the rejection of the complaint by
1.   uphold the appeal and, consequently, the application at              the Commission refusing to acknowledge entitlement to
     first instance;                                                      compensation for non-material damage suffered prior to the
                                                                          onset of the occupational disease. Essentially, the applicant
2.   order compensation for biological and non-material                   failed to bring an action within the time-limit for doing so
     damage caused by the defendant between 1967 and                      against the decision of the Commission of 22 September 1994
     1990, under the ordinary law, the Charter of Fundament               refusing to pay compensation for the damage.
     Rights of the European Union and the European Conven-
     tion on Human Rights, irrespective of (or under)
     Article 73 of the Staff Regulations, as a result of the
                                                                          According to the appellant, the reasoning of the Court of First
     inexcusable fault of the institution, which thus incurs
                                                                          Instance is not satisfactory in that it may not be stated with
     liability, inasmuch as it:
                                                                          certainty that the request of 15 May 1994 included a request
                                                                          for compensation for non-material damage suffered prior to
     —      infringed the appellant’s human dignity,                      the onset of the occupational disease. That interpretation is
                                                                          arguable, since what is involved is a letter making a claim and
     —      infringed the appellant’s right to privacy,                   a generic request for compensation following the onset of the
                                                                          illness.
     —      caused continuous and culpable bodily harm to the
            appellant, in that it obliged him to work, giving
            untrue reassurances, in an environment contamin-              2.     The appellant also disputes that the fact that the Court
            ated by asbestos, knowing full well that asbestos is          of First Instance declared inadmissible the request for compen-
            harmful even for persons not at risk,                         sation for biological damage on the ground that a request
                                                                          seeking compensation for damage must contain information
     —      deliberately attempted to harm the appellant, at the          to make it possible to identify the conduct of the institution
            risk of killing him, which is mentioned only to               about which the appellant is complaining and the reasons for
            support the allegation of harm                                which he takes the view that there is a causal link between the
                                                                          conduct and the damage he alleges to have suffered. According
     —      deliberately tortured the appellant over many years           to the appellant, the damage to his health caused by exposure
 ---pagebreak--- C 171/12               EN                       Official Journal of the European Union                                         19.7.2003
to asbestos has resulted in psychological and physical stress;          a renumerative nature, inasmuch as the Italian tax authorities
that damage may be assumed to exist on the basis of                     already levied on registration of such company documents in
information concerning environmental pollution and may                  the years 1985 to 1992 ‘analogous charges which may be
certainly be described as biological and life-threatening dam-          regarded as constituting renumeration for the service provided’.
age. There has in any event been psychological damage
resulting from concern for his life suffered by someone who             The Italian authorities, contrary to the provisions of
fearfully expected to suffer from cancer, that is to say, to die.       Article 11(2) of Law No 448/98, are obliged to reimburse in
                                                                        full to the capital companies who have sought recovery within
                                                                        the periods laid down, the amount of the administrative charge
                                                                        on registration of the instrument of incorporation declared
                                                                        invalid by the Court in Joined Cases C-71/91 and C-178/91
                                                                        Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915,
                                                                        and are not at liberty to reduce that amount by a sum equal to
                                                                        eight times the retroactive annual flat-rate charge provided for
Action brought on 12 May 2003 by the Commission of                      in Article 11(1) of Law No 448/98. The introduction of that
  the European Communities against the Italian Republic                 retroactive annual flat-rate charge constitutes a flagrant breach
                                                                        of the prohibition in Article 10 of Directive 69/335.
                         (Case C-197/03)
                                                                        (b)   The detailed rules for calculating interest on the
                         (2003/C 171/17)                                      amounts to be repaid to the companies
                                                                        The Commission points out that the detailed rules for calculat-
                                                                        ing interest on refunds of the administrative charge on
An action against the Italian Republic was brought before the           registration of a company’s instrument of incorporation
Court of Justice of the European Communities on 12 May                  provided for in Article 11(3) of Law No 448/98 concern only
2003 by the Commission of the European Communities,                     a specific category of actions for restitution, namely those
represented by Enrico Traversa, acting as Agent.                        based on an infringement of Article 10 of Directive 69/335,
                                                                        that is to say a breach of a provision of Community law. Since
                                                                        those detailed rules for calculating interest are manifestly less
The applicant claims that the Court should:                             favourable in contrast to those applicable in the case of
                                                                        analogous actions based on national law, the Commission
—     declare that, by introducing with retroactive effect under        concludes that Article 11(3) of Law No 448/98 constitutes an
      Article 11 of Law No 448/98, an annual flat-rate charge           infringement of the principle of equivalence upheld by the
      on the registration of company documents other than the           Court.
      instrument of incorporation and by providing for rules
      relating to reimbursement of the repealed administrative
      charge on registration of the instrument of incorporation         (c)   Detailed rules for reimbursement of the repealed admin-
      which are discriminatory and restrictive as against com-                istrative charge on registration of the instrument of
      panies entitled to that reimbursement, the Italian Republic             incorporation
      has infringed the obligations imposed on it by
      Article 10(c) of Council Directive 69/335/EEC ( 1) con-
      cerning indirect taxes on the raising of capital and the          In the Commission’s view, the requirements contained in
      principles laid down by the Court of Justice concerning           Article 11(4) and (5) of Law No 448/98 and in implementing
      recovery of charges levied by the Member States in breach         circular No 32/E providing for a commencement date for
      of Community law;                                                 reimbursement procedures, introducing an annual ceiling of
                                                                        amounts earmarked for reimbursement and suspending the
                                                                        reimbursements themselves in cases where proceedings at first
—     order the Italian Republic to pay the costs.
                                                                        instance are still pending, occasion, or are likely to occasion,
                                                                        delays in repayment of the repealed charge on registration of
                                                                        a company’s instrument of incorporation. This deferral of
                                                                        reimbursements and the consequent extension of the duration
Pleas in law and main arguments                                         of judicial proceedings for recovery of the registration charge
                                                                        quite plainly renders excessively difficult the exercise of a right
                                                                        conferred by the Community legal order and, more specifically,
                                                                        the right of capital companies to be subject, on incorporation,
(a)   The annual retroactive flat-rate charge on registration           only to the harmonised tax on contributions and to seek
      of company documents other than the instrument of                 recovery of other non-harmonised indirect taxes prohibited
      incorporation                                                     under Article 10 of Directive 69/335.
The Commission maintains that the retroactive flat-rate charge          The Commission concludes that the Italian legislature, by
on registration of company documents other than the instru-             introducing restrictive rules on reimbursement provided for in
ment of incorporation cannot in any way be deemed to be of              Article 11(4) and (5) of Law No 448/98, has at one and the