27.2.2010

EN

Official Journal of the European Union

C 51/22

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(Case C-532/09 P)

2010/C 51/36

Language of the case: French

Parties

Appellant: Vladimir Ivanov (represented by: R. Rollinger, avocat)

Other party to the proceedings: European Commission

Form of order sought

—declare the appeal admissible;

—declare the appeal well founded;

—annul the order of the Court of First Instance of 30 September 2009;

—decide the case in accordance with the application initiating the proceedings;

—order the opposing party to pay the costs of both instances.

Pleas in law and main arguments

The appellant relies on three grounds in support of his appeal:

By his first ground, which is made up of two parts, the appellant claims that the Court of First Instance should not have used abuse of process to justify the inadmissibility of his action for non-contractual liability, since the very limited scope of abuse of process extends only to exceptional cases in which the object of the action for damages is payment of a sum identical to that which the appellant would have obtained if he had succeeded in an action for annulment. In the present case, the action for damages brought by the appellant is entirely independent, the appellant wishing to render the Commission non-contractually liable for the conduct adopted in his regard, rather than to achieve a financial situation identical to that which he would have had in the event of the annulment of the Commission decisions.

In that context, the appellant claims, moreover, that the Court was not entitled to raise abuse of process of its own motion, since the burden of proof for abuse of process rests on the defendant.

By his second ground, the appellant claims that the Court erred in law by requiring a finding of unlawful conduct on the part of the Commission as a precondition for it to be rendered non-contractually liable, although unlawful conduct of the Community institution is no longer one of the grounds in the most recent case-law of the Court on which the institutions can be rendered liable.

By his third ground, the appellant claims, lastly, that, in ruling that an action for annulment was more appropriate than an action for damages, the contested order adversely affected his right to an effective remedy, as recognised by the Charter of Fundamental Rights of the European Union.

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