Action brought on 6 December 2006 - IMS v Commission

(Case T-346/06)

Language of the case: Italian

Parties

Applicant: IMS Industria Schio Srl (Schio, Italy) (represented by: F. Colonna and T.E. Romolotti, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annulment of the Commission's opinion C(2006) 3914 of 6 December 2006, and a declaration of the applicant's right to compensation for the damage suffered thereby

an order that the defendant should pay the costs in accordance with Article 87 et seq. of the Rules of Procedure.

Pleas in law and main arguments

This action challenges the Commission's opinion C(2006) 3914 of 6 December 2006 concerning a prohibition measure adopted by the French authorities relating to certain IMS brand mechanical presses.

It is to be borne in mind in this connection that, as a result of the adoption by the French Republic of measures relating to mechanical presses manufactured by the applicant IMS, the Commission, in accordance with Article 7(2) of Directive 98/37/EC, examined the justification for those measures, issuing at the end of the investigation the opinion that the measures adopted by the French authorities were justified.

In support of its claims, the applicant alleges:

-    that the Commission failed to take account of the judgment of the French Conseil d'Etat of 6 November 2002. It claims in this regard that, by its judgment of 6 November 2002 the French Conseil d'Etat had noted the irregularity of the procedure by which the French interministerial decision of 27 June 2001 had been adopted and had ordered its annulment. The Commission has therefore given its own opinion on the justification for an act that, according to the law of the Member State which adopted that act, would appear to be invalid. It follows that the opinion itself is unlawful, given that it is intended to confirm an act already held to be invalid by the competent authorities and which is no longer of any effect in the legal system;

-    incorrect appraisal as to substance. According to the applicant, the Commission's appraisal of the substance would appear to be vitiated, since features of the machines produced by IMS were incorrectly assessed from the point of view of technical compliance with the rules applicable;

-    with regard to compensation for damage, IMS claims to have suffered and still to suffer, for the reasons set out here, wrongful damage of a non-contractual nature caused it by the Commission, which failed to take into consideration the declaration that the French decision was null and void and made an incorrect appraisal of IMS's products.

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