C 264/32 EN 1.11.2003 Official Journal of the European Union
The applicant further claims that the contested regulation
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to thenature of the applicable measure but it went further than that.In addition the amount of the duty was set entirely arbitrarily.
Regulation (EC) No 384/96 does not provide for the possibility
of using the results of reviews that are over 12 years old. Itdoes not allow the results of reviews that are older than fiveyears to be used.
Finally no specific dumping margin was laid down in the final
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.
(1) OJ L 143, p. 1.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ L 56, p. 1), most recently
amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).
Action brought on 19 August 2003 by British United
Provident Association Limited, BUPA Insurance Limited
and BUPA Ireland Limited against Commission of the
European Communities
(Case T-289/03)
(2003/C 264/55)
(Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 19 August 2003 by British United
Provident Association Limited, London, (United Kingdom) andBUPA Insurance Limited, London, (United Kingdom) andBUPA Ireland Limited , Dublin, (Ireland), all represented by
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer
and Mr J. Burke, Barrister.
The applicant claims that the Court should:
— annul the Commission decision C(2003)1322 fin of
13 May 2003;
— order that the Commission pays the applicant’s costs.Pleas in law and main arguments
The applicant provides private medical insurance in Ireland. In
the contested decision, the Commission decided not to raise
any objections to the risk equalisation scheme to be
implemented by the Irish authorities in the Irish market forprivate medical insurance. According to the applicant, the
effect of this scheme is to grant a subsidy to the dominant
provider of medical insurance, the Voluntary Health InsuranceBoard; the subsidy would be funded by a charge to be imposedon the applicant.
In support of its application, the applicant invokes, firstly, the
misapplication by the Commission of Article 87(1) EC. The
applicant submits that the Commission considered that therisk equalisation scheme did, in principle, satisfy the conditionsfor aid under Article 87(1) EC. However, it decided that the
scheme compensated the Voluntary Health Insurance Board
for public service obligations.
According to the applicant, the Commission misapplied the
public service compensation test as set out in the jurisprudenceof the Court of Justice (
1). The applicant states that the
obligations identified by the Commission were the require-
ments for private medical insurers in Ireland to follow theprinciples of open enrolment, community rating, minimumbenefits and lifetime cover. These are, according to the
applicant, not to be considered as public service obligations or
obligations following the operation of services of generaleconomic interest. These obligations would rather representgeneral regulation of the private medical insurance market,
applicable to all insurers. The applicant furthermore submits
that the Commission did not consider whether these obli-gations imposed a financial burden on the Voluntary HealthInsurance Board.
The applicant states that the Commission’s alternative basis
for the contested decision was that the risk equalisation scheme
could be approved under Article 86(2) EC. The applicantsubmits that the Commission failed to ensure that the con-ditions for approval under that article were satisfied. According
to the applicant, the relevant private medical insurance obli-
gations were not services of general economic interest. Theapplicant furthermore submits that the Commission’s argu-ments on necessity and proportionality were based on both
errors of reasoning and manifest errors of fact. The applicant
also claims that the Commission did not consider whether thescheme would affect the development of trade contrary to theinterests of the Community.
The applicant also submits that the Commission erred in
failing to consider whether the risk equalisation schemeinfringed Article 82 EC taken together with Article 86(1) EC,Articles 43 and 49 EC and Council Directive 92/49/EEC (
2).
1.11.2003 EN C 264/33 Official Journal of the European Union
The applicant finally submits that the Commission should
have initiated a formal investigation procedure under
Article 88(2) EC given the complexity of the arguments in fact
and law raised by the applicant and the economic analysisrequired.
(1) Case C-53/00 Ferring [2001] ECR I-9067 and Case C-280/00
Altmark Trans GmbH and Regierungspräsidium Magdeburg, notyet published in the ECR.
(
2) Council Directive 92/49/EEC of 18 June 1992 on the coordination
of laws, regulations and administrative provisions relating to
direct insurance other than life assurance and amending Directives
73/239/EEC and 88/357/EEC (third non-life insurance Directive)(OJ L 228, p. 1).
Action brought on 18 August 2003 by Georgios Pantoulis
against the Commission of the European Communities
(Case T-290/03)
(2003/C 264/56)
(Language of the case: Greek)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of theEuropean Communities on 18 August 2003 by GeorgiosPantoulis, resident in Brussels (Belgium), represented by Kharis-
sios Tagaras, lawyer.
The applicant claims that the Court should:
— annul the decision of the selection board for Competition
COM/A/6/01 — section 02 not to include him on the list
of successful candidates in that competition and the
defendant’s reply of 10 June 2003 by which it rejected hiscomplaint under no R/55/2003, lodged on 10 February2003, requesting revocation of the selection board;
— order the defendant to pay his costs.
Pleas in law and main arguments
In support of his action, the applicant pleads breaches of the
competition notice, of the principles and rules governing the
functioning of selection boards, of the principle of equaltreatment and of the Staff Regulations (Annex III). In hissubmission those breaches have arisen:— from the failure to examine an unknown number of
candidates in the language which they had declared to be
their ‘principal’ language;
— from the failure to examine the applicant in the third
language declared by him, and also from the (in his
submission) different treatment of the candidates asregards examination of the third language and any furtherlanguages known by them;
— from the appointment of further members of the selection
board in addition to those initially appointed, after
notification of the names of the candidates admitted to
the oral examination, from the fact that the selectionboard included two members appointed by the StaffCommittee instead of one, and from the alteration in the
composition of the board when the oral examinations
were conducted.
Action brought on 20 August 2003 by Messe BerlinGmbH against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)
(Case T-292/03)
(2003/C 264/57)
(Language of the case: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
20 August 2003 by Messe Berlin GmbH, Berlin, representedby R. Lange and E. Schalast, lawyers.
The applicant claims that the Court should:
— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (TradeMarks and Designs) of 5 June 2003 (Case No R 646/
2001-2);
— order the defendant Office to pay the costs of the
proceedings.
Pleas in law and main arguments
Community trade mark The word mark ‘HOMETECH’ —
sought: application No 1985118