Order of the Court (Fourth Chamber) of 29 October 2009 – Portela v Commission

(Case C‑85/09 P)

Appeal – Non‑contractual liability – Claim for compensation for damage sustained on account of various omissions by the Commission in the application of Directive 93/42/EEC – No causal connection between the omission alleged and the damage suffered by the applicant in the marketing of defective digital thermometers – Appeal manifestly unfounded

1.                     Appeals – Grounds – Inadequate or contradictory grounds – Scope of the objection to state reasons – Reliance by the Court of First Instance on implied reasoning – Whether permissible – Conditions (see paras 31-32)

2.                     Non-contractual liability – Conditions – Unlawfulness – Injury/damage – Causal link – One of the conditions not satisfied – Claim for compensation dismissed in its entirety (Art. 288, second para., EC) (see para. 34)

Re:

Appeal brought against the order of the Court of First Instance (Eighth Chamber) of 17 December 2008 in Case T-137/07

Portela

v

Commission

, in which the Court rejected as, in part, manifestly inadmissible and, for the remainder, manifestly unfounded an application claiming, primarily, that the Court of First Instance should impose on the Commission the obligation to act in accordance with Article 14b of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1), as amended by Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices (OJ 1998 L 331, p. 1), by ordering the certification company TÜV Rheinland Product Safety GmbH, through the Federal Republic of Germany, to activate, in favour of the appellant, the mandatory civil liability insurance provided for in point 6 of Annex XI to Directive 93/42, concluded by that company or, if the alleged damage could not be remedied by the main claim, a claim for compensation for the damage sustained by the applicant on account of the various omissions on the part of the Commission.

Operative part

The Court:

1.

Dismisses the appeal;

2.

Orders Portela – Comércio de artigos ortopédicos e hospitalares, Lda to pay the costs.