CELEX: C2003/044/79
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-391/02: Action brought on 24 December 2002 by the Bundesverband der Nahrungsmittel- und Speiseresteverwertung e.V. and Josef Kloh against the European Parliament and the Council of the European Union

C 44/42                EN                         Official Journal of the European Union                                        22.2.2003
Action brought on 24 December 2002 by Antonio Cagna-                      Action brought on 24 December 2002 by the Bundesver-
to against the Court of Justice of the European Communi-                  band der Nahrungsmittel- und Speiseresteverwertung e.V.
                               ties                                       and Josef Kloh against the European Parliament and the
                                                                                          Council of the European Union
                        (Case T-390/02)
                                                                                                  (Case T-391/02)
                         (2003/C 44/78)
                                                                                                   (2003/C 44/79)
                   (Language of the case: French)
                                                                                            (Language of the case: German)
An action against the Court of Justice of the European
Communities was brought before the Court of First Instance
of the European Communities on 24 December 2002 by                        An action against the European Parliament and the Council of
Antonio Cagnato, residing in Dippach-Gare (Luxembourg),
                                                                          the European Union was brought before the Court of First
represented by Juan Ramon Iturriagagoitia and Karine Delvol-              Insurance of the European Communities on 24 December
vé, lawyers.                                                              2002 by the Bundesverband der Nahrungsmittel- und Speisere-
                                                                          steverwertung e.V., Bochum (Germany), and Josef Kloh, Eich-
                                                                          enried (Germany), represented by R. Steiling and S. von
The applicant claims that the Court should:                               Zimmermann-Wienhues.
—     annul the decision of the Court of Justice given on
      24 September 2002 and concerning the complaint lodged               The applicants claim that the Court should:
      by the applicant on 25 January 2002 against the decision
      of 25 October 2001;
                                                                          —     annul Article 32(2) of Regulation (EC) No 1774/2002 of
                                                                                the European Parliament and of the Council of 3 October
—     order the defendant to pay the applicant compensation
                                                                                2002 laying down health rules concerning animal by-
      for the damage and non-material damage of every kind
                                                                                products not intended for human consumption ( 1) in so
      that he has suffered as a result of his being exposed to
                                                                                far as transitional measures under Article 32(1) of the
      asbestos when carrying out his duties at the Palais de
                                                                                regulation are permitted for no more than four years
      Justice of the Court of First Instance and the Court of
                                                                                from 1 November 2002;
      Justice of the European Communities, estimated at a sum
      of EUR 350 000, subject to all necessary reservations;
                                                                          —     order the defendants to pay the costs.
—     order the defendant to pay all the costs.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments
The applicant, an official of the Court of Justice, challenges            The action challenges the time-limit on transitional measures
that institution’s refusal to compensate him for the damage               which may be adopted under Article 32 of the contested
suffered as a result of his occupational disease, which has               regulation in the case of Member States with a secure system
already been recognised by decision of the appointing auth-               for processing food and kitchen waste [catering waste].
ority of 31 May 2001, adopted under Article 73 of the Staff
Regulations, and on the basis of which a sum was paid to him.
                                                                          1.    The imposition of a time-limit exceeds the bounds of the
                                                                                Parliament’s and the Council’s discretion; it runs counter
The pleas relied on in support of this application are similar to               to the principle of subsidiarity (Article 5(2) EC) and the
those in Case T 255/02 H v Court of Justice (OJ C 274 of                        principle of proportionality (Article 5(3) EC).
9.11.2002, p. 26).
                                                                                In matters of Community health and hygiene law the
                                                                                institutions do not enjoy wide political discretion:
                                                                                decisions must be based on scientific evidence. There is
 ---pagebreak--- 22.2.2003              EN                          Official Journal of the European Union                                             C 44/43
      no scientific evidence that the processing of food waste,            Action brought on 30 December 2002 by Linea Gig S.r.l.
      as performed in the Federal Republic of Germany under                (in liquidation) against the Commission of the European
      stricter conditions in recent years, presents a risk of                                          Communities
      contamination. The risk is, on the contrary, reduced
      because illegal disposal and use as feed is prevented and
      food and kitchen waste are subject to treatment which                                          (Case T-398/02)
      destroys pathogens to a scientifically proven degree.
      There are adequate measures of control to ensure com-
      pliance with those legal requirements and the constituents
      of animal feed are traceable. The system used in the                                            (2003/C 44/80)
      Federal Republic of Germany for the collection and
      treatment of food waste and its processing into feed thus
      already meets the objectives of the regulation and there                                 (Language of the case: Italian)
      was no need for any wider authorisation in Community
      law. The possibility of extending the duration of dero-
      gations should have been made dependent on scientific
      evidence.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 30 December 2002 by Linea Gig
2.    It is incompatible with the general principle of equality            S.r.l. (in liquidation), represented by Lucio D’Amario and
      for the inflexible time restriction placed on derogating             Bruno Lazia, Lawyers.
      provisions to treat the various systems used in the
      Member States for processing food waste, and in particu-
      lar the processing into feed of food waste adequately
      treated or not, as being the same. There is no justification         The applicant claims that the Court should:
      for that in the principle governing the regulation, which
      is the prevention of contamination. Scientific evidence
      showed clearly that the way in which food waste was                  —      annul the contested decision, in whole or in so far as it
      treated in the Federal Republic of Germany was sufficient                   concerns the applicant;
      to avoid the spread of pathogens.
                                                                           —      in the alternative, annul Article 3 of the decision in so far
                                                                                  as it imposes a fine on the applicant;
3.    The time-limit imposed for derogations is an unjustified
      encroachment on freedom of property and freedom to                   —      in the further alternative, reduce the amount of the fine
      pursue an occupation, and on freedom as to how business                     imposed on the applicant;
      is run, because the member undertakings of plaintiffs 1
      and 2 are entitled to special protection of their right to
                                                                           —      order the Commission to pay the costs;
      rely on being able to pursue their activities and continue
      to use their facilities — most of which have been only
      recently modernised. Their facilities and their activities           —      order the Commission to reimburse the whole of the
      have been brought into compliance with stringent legal                      costs incurred by the applicant in the administrative
      requirements which are based on scientific evidence. They                   proceedings.
      must therefore be able to rely on being able to continue
      to pursue their activities and use their facilities as long as
      they keep to those stricter requirements and no new
      scientific evidence is available. In addition, the regulation’s
      provisions take no account of the fact that as a rule it is
      not possible for the food waste processors concerned to              Pleas in law and main arguments
      alter the use of their facilities and business premisses.
                                                                           The present action is directed against the Decision of 30 Octo-
                                                                           ber 2002 COMP/35.587 PO Video Games, COMP/35.706 PO
                                                                           Nintendo Distribution and COMP/36.321 Omega-Nintendo
( 1) OJ 2002 L 273, p. 1.                                                  doc. C(2000) 4072 final, wherein the Commission found that
                                                                           the applicant had infringed Article 81(1) EC and Article 53(1)
                                                                           of the EEA agreement as a result of its involvement, during the
                                                                           period from 1 October 1992 to the end of December 1997, in
                                                                           a series of agreements and concerted practices in the market
                                                                           for video game consols and cartridges compatible with the
                                                                           Nintendo console, the purpose and effect of the agreements
                                                                           and practices being to limit parallel exports of Nintendo