Action brought on 13 March 2014 — Pérez Gutiérrez v Commission

(Case T-168/14)

Language of the case: Spanish

Parties

Applicant: Ana Pérez Gutiérrez (Mataró, Spain) (represented by: J. Soler Puebla, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

Declare that there has been an unlawful interference in the right to honour, family life and the protection of personal image by the unauthorised use of Mr Patrick Johannes Jacquemyn’s picture, through the European Commission’s inclusion of his photograph in the Picture library for health warnings for tobacco products in the European Union.

Order the defendant to pay the applicant the amount of EUR 181 104 in respect of loss of earnings.

Order the defendant to pay the applicant the amount of EUR 0.01 per tobacco packet or product on which Mr Patrick Jacquemyn’s picture appears, the total amount to be determined at the time of enforcement of the judgment, and which at this time represents an amount of twenty-seven million five hundred and eighty-eight thousand five hundred and twenty-four euro (EUR 27 588 524).

Order the defendant to pay to the applicant compensation for the benefit obtained through the unlawful use of Mr Patrick Jacquemyn’s picture, which amounts to EUR 13 790 000 in Spain, the place of residence of the applicant and Mr Patrick Jacquemyn.

Pleas in law and main arguments

The subject-matter of the present proceedings is an action to establish non-contractual liability in respect of, and for compensation for, the damage caused by, the European Commission’s unlawful use of a picture of Mr Patrick Johannes Jacquemyn, the applicant’s spouse, on the health warnings that are required to be included on all tobacco products in the European Union.

In support of her action, the applicant claims that Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001, and Article 5(3) thereof, were implemented by European Commission Decision 2003/641/EC of 5 September 2003 on the use of colour photographs [or other illustrations] as health warnings on tobacco packages. Decision C (2005) 1452 of 26 May 2005 on the library of selected source documents containing colour photographs [or other illustrations] for each of the additional warnings listed in Annex I to Directive 2001/37/EC was subsequently adopted, and it was later amended by Decision C (2006) 1502 of 13 April 2006.

That Directive and those Decisions concerning the pictures that are required to be included on tobacco packaging were transposed into the laws of each of the States of the European Union. Specifically, in the case of Spain, they were transposed by Royal Decree 639/2010 of 14 May [2010]. From the 42 pictures proposed by the European Commission, the Spanish State selected 14, including the picture of Mr Patrick Jacquemyn.

The applicant states that Mr Jacquemyn was admitted to the Hospital de Barcelona on 21 June 2002 where he remained until 16 August 2002, and was in a coma for 22 days. Since then, and without his consent having been obtained, various pictures of Mr Jacquemyn have appeared on the internet, for his had been a clinical case of chronic obstructive pulmonary disease [COPD], he had undergone a difficult intubation and tracheotomy, and his had become a case-study.

It was through this unauthorised use of a picture of Mr Patrick Jacquemyn while in a coma that one of his pictures was included in the Picture Library for health warnings, prior to the photograph being processed by the advertising company contracted for the campaign.