30.1.2010

Official Journal of the European Union

C 24/36

(Case C-460/09 P)

2010/C 24/65

Language of the case: Italian

Parties

Appellants: Inalca SpA — Industria Alimentari Carni and Cremonini SpA (represented by: F. Sciandone and C. D'Andria, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellants claim that the Court should:

—set aside the order under appeal and refer the case back to the Court of First Instance for a decision on the substance in the light of such guidance as the Court of Justice may provide;

—order the Commission to pay the costs of the present proceedings together with those incurred in Case T-174/06.

Pleas in law and main arguments

The grounds of the order under appeal are manifestly contradictory in so far as, on the one hand, the order refers to settled Community case-law according to which time for the purposes of bringing actions seeking to establish non-contractual liability on the part of the Community starts to run only upon fulfilment of all the conditions necessary for the creation of an obligation to pay compensation and, in particular, only when the damage in respect of which compensation is sought has become actual whereas, on the other hand, the order rejects the applicants’ argument that the damaging effects of the letter at issue became certain only upon the adoption of the Commission decision of 3 October 2006.(1)

Moreover, the Court of First Instance distorted the Community case-law by determining the initial point from which time started to run for the purposes of bringing proceedings by reference to the material damage suffered by the applicants.

The grounds of the order under appeal are plainly contradictory, in so far as the Court of First Instance begins by stating a general principle relating to damage which is ongoing and then goes on to disregard that general principle when determining the nature (whether instantaneous or not) of the costs of legal assistance and consultation and the staff costs. The grounds are also vitiated by an obvious lack of logical cohesion, in so far as, on the one hand, the Court of First Instance acknowledged the ongoing nature of the costs generated by the lodging of insurance policies guaranteeing payment while, on the other hand, it ruled out the possibility that the legal assistance costs were ongoing, even though these had also arisen again and again over the years, pending resolution of the various procedures launched in the wake of the UCLAF investigation.

The approach of the Court of First Instance was also at odds with its own case-law, which has come to recognise in the course of the years that the provision of legal advice is not instantaneous.

The Court of First Instance infringed Article 44(1)(c) of the Rules of Procedure and distorted the arguments of the applicants in failing to take into consideration the numerous items of evidence provided in the course of the proceedings and in holding that the claim for compensation for the damage suffered by the applicants in the form of loss of profit lacked the necessary precision.

In categorising the non-material damage as instantaneous and not ongoing, without taking into account the particular characteristics of the non-material damage, the Court of First Instance adopted an approach which was manifestly at odds with Community case-law. The order under appeal is also vitiated by manifest lack of logical cohesion, in so far as the Court of First Instance takes case-law relating exclusively to material damage as a basis for holding that the non-material damage is not ongoing.

The Court of First Instance infringed Article 44(1)(c) in holding that the claim for compensation for non-material damage was inadmissible for lack of the necessary precision, in so far as the applicants did not merely complain of vague intangible damage, but provided the Court with numerous items of evidence, which were nevertheless wholly ignored.

The Court of First Instance also acted counter to the relevant case-law on entitlement to compensation for non-material damage in seeking to determine the extent of the damage by reference to parameters which are inherently difficult to quantify or to demonstrate conclusively.

Subsequently, the Court of First Instance further erred in law by stating grounds which are manifestly illogical in so far as it took case-law relating exclusively to material damage as a basis for holding that the claim for compensation for non-material damage was insufficiently precise.

F. Error in law relating to the condition concerning a causal link

The Court of First Instance erred in law by concluding that there was no direct causal link between the sending of the letter of 6 July 1998 to the Italian authorities — which gave rise to the reimbursement letters from the Italian authorities to the applicants — and the damage suffered by the applicants, that is to say, the payment of the insurance policies as guarantees for the purpose of suspending the immediate reimbursement of the sums contested.

The Court of First Instance breached the principle that the duration of proceedings must be reasonable, a general principle of Community law which is also set out in the first paragraph of Article 6 of the European Convention on Human Rights and Fundamental Freedoms and in Article 47 of the Charter of Fundamental Rights of the European Union.

Commission Decision 2006/678/EC of 3 October 2006 on the financial treatment to be applied, in the context of clearance of expenditure financed by the Agricultural Guidance and Guarantee Section, in certain cases of irregularity by operators (OJ L 278, 10.10.2006, p. 24).