8.11.2008   

EN

Official Journal of the European Union

C 285/30

Appeal brought on 23 September2008 by Trubowest Handel GmbH, Viktor Makarov against the judgment of the Court of First Instance (Third Chamber) delivered on 9 July 2008 in Case T-429/04 Trubowest Handel GmbH, Viktor Makarov v Council, Commission

(Case C-419/08 P)

(2008/C 285/50)

Language of the case: English

Parties

Appellants: Trubowest Handel GmbH, Viktor Makarov (represented by: K. Adamantopoulos, E. Petritsi, dikigoroi)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities

Form of order sought

The appellants claim that the Court should:

—

Set aside in its entirety the Judgment of the Court of First Instance

—

Accept, by giving a final judgment itself, the application for compensation under Article 288 EC lodged before the Court of First Instance (CFI), or in the alternative refer the case back to the CFI

—

Order the Council and the Commission, in addition to paying their own costs, to pay all the costs occasioned by the appellants, in the course of the present proceedings and the proceedings before the CFI

Pleas in law and main arguments

The appellants submit that the contested judgment should be set aside for the following reasons:

1)

The CFI erred in law in interpreting and applying Community law with regard to the conditions under which the Community may incur non-contractual liability pursuant to Article 288(2) EC. First it is submitted that the contested judgement is vitiated by an error of law in so far as the CFI has totally failed to consider the illegal conduct complained of in the context of assessing the causal link and failed to investigate it in its legal context although it ought to have done so in order to determine the Community's legal responsibility. The CFI erred in law by failing to correctly assess, in accordance with Community law, the existence of a direct causal nexus between the conduct of the Community Institutions and the resulting damage suffered by the appellants and in finding that there was no sufficiently direct causal link between the conduct of the Community Institutions and the resulting damage on the grounds that either the appellants failed to demonstrate reasonable diligence and/or that the fault is attributed exclusively to the German Authorities.

2)

The CFI erred in law in refusing jurisdiction as regards the claims in relation to the amounts of EUR 118 058,46, EUR 277 939,37 and the legal fees, for which the national remedies have been exhausted following the legal right to settlement. As a result the appellants are left with no effective remedy and are penalised for exercising their legal right to settlement on the basis of the German Civil Code, despite the fact that the Community liability is involved in this case. In this context it is submitted that the CFI distorted the facts and evidence in holding that the appellants did not produce any evidence in support of, on one hand, the role of the Community and the Russian authorities and, on the other hand, the role of the criminal proceedings, in concluding a settlement.