Case T-53/01: Action brought on 6 March 2001 by Poste Italiane S.p.A. against Commission of the European Communities
Date: 2001-05-05
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), postal service, provision of services, single market

C 134/28

EN

Official Journal of the European Communities

5.5.2001

The pleas in law and main arguments are similar to those relied
on in Case T-93/00 Alessandrini and Others v Commission (2).

(1) OJ 1998 L 293, p. 32.
(2) OJ 2000 C 176, p. 25.

Action brought on 6 March 2001 by Juergen Schaefer
against the Commission of the European Communities

(Case T-52/01)

(2001/C 134/59)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 March 2001 by Juergen Schaefer,
represented by Juan Ramo´ n Iturriagagoitia, lawyer.

The applicant claims that the Court should:

— annul the Commission’s decision of 12 February 2001
relating to the applicant’s transfer back from Montevideo
(Uruguay) to Brussels;

— annul, if appropriate, the Commission’s note of 30 No-
vember 2000 informing the applicant of the decision to
transfer him back from Montevideo (Uruguay) to Brussels;

The applicant submits that the Commission justifies that
decision by alleging that the Paraguayan authorities have
expressed reservations about him but that it fails to mention
the factual and legal matters of which the applicant should be
aware in order, if necessary, to be able to defend his own
professional conduct.

The applicant considers that the decision at issue infringes
Article 7 of the Staff Regulations since it is contrary to the
interest of the service. In his view, the interest of the service
specifically requires him to remain in his current post and
continue the complex work which has been assigned to him
and of which he has already gained sound experience.

The applicant further submits that the decision is vitiated by a
complete failure to state the grounds and has been adopted
without the Commission at any time taking account of the
views of the party concerned, contrary to the requirements of
case-law.

Action brought on 6 March 2001 by Poste Italiane S.p.A.
against Commission of the European Communities

(Case T-53/01)

(2001/C 134/60)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 March 2001 by Poste Italiane
S.p.A., represented by Gian Michele Roberti, Petrus Mathijsen,
Alessandra Perrazzelli, Elisabetta Rubini and Andrea Sandulli,
avvocati.

— order the immediate suspension and, if appropriate, the
subsequent annulment of any procedure initiated with a
view to filling the vacancy arising from the order
transferring the applicant;

The applicant claims that the Court should:

— annul the contested decision

— order the Commission to pay the costs.

— order, if appropriate, the annulment of the corresponding

appointment of an official to fill the post;

Pleas in law and main arguments

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, who is based in the European Commission’s
Delegation in Montevideo (Uruguay), was notified of a decision
dated 12 February 2001 posting him back to Brussels with
effect from 12 March 2001.

By this action, Poste Italiane SpA is seeking the annulment of
the decision of the Commission of 21 December 2000,
adopted on the basis of Article 86(3) of the Treaty, in relation
to the provision of certain new postal services with a
guaranteed day- or time-certain delivery. That decision declares
incompatible with Article 4(4) of the Treaty Legislative Decree
No 261/99 of 22 July 1999 implementing Directive 97/67/EC
of the European Parliament and of the Council of 15 December
1997 on common rules for the development of the internal
market of Community postal services and the improvement of
quality of service.(1);

5.5.2001

EN

Official Journal of the European Communities

C 134/29

The Commission objects, in particular, to the inclusion in the
area reserved to the incumbent operator of a guaranteed day-
or time-certain delivery service for time-sensitive electronic
correspondence.

— the principles and rules have not be observed regarding
protection of services of general economic interest and in
particular of universal services. The applicant points out,
in that respect, the particularly high costs of the universal
postal system in Italy as well as the destabilising effect of
the decision in question on the financial equilibrium of
the provider of the universal service.

In support of its arguments, the applicant claims that:

(1) OJ 1998 L 15, p. 14.

— in the final decision the Commission altered substantially
essential elements of the infringement complained of
originally consisting in particular in: the definition of the
relevant market and the legal classification and assessment
of the infringement at issue. In this regard, the applicant
takes the view that, in the final decision the Commission
does not further identify the relevant market on the basis
of a number of bundled services which, taken as a
whole, confer on the service significant added-value by
comparison with basic postal services. Rather, on the
contrary, the Commission merely points to a single
additional service (the date- and time-certain delivery of
time-sensitive electronic mail) as a factor capable by itself
of characterising a discrete relevant market.

— the Commission has not allowed either the applicant or
the Italian authorities to make their own points of view
effectively known. Furthermore, despite a finding by
the Commission originally that Directive 97/67/EC was
essential for the legal assessment of the facts, that directive
is not even cited in the final decision. In that respect, the
applicant affirms that the interpretation of the directive is
essential in order to decide whether the decree in issue is
compatible.
the Commission had assessed
properly the decree in issue in the light of Directive
97/67/EC,
it would have concluded that the disputed
national provisions were fully consistent with the content
and purpose of the directive itself.

Indeed,

if

— the definition of the relevant market is vague and general
inasmuch as it merely describes the service involved
in general terms such as, basically, the time-certainty
(date/time) of the service and the fact that the deadline
for each delivery is subject to a contractual relationship
with the user. The definition of the relevant market is not
even founded in the light of the relevant economic
circumstances and practice of the Commission. Moreover,
it has omitted to take into consideration the prices
charged to customers.

Action brought on 16 March 2001 by The Procter &
Gamble Company against the Office for Harmonization
in the Internal Market

(Case T-63/01)

(2001/C 134/61)

(Language of the case: French)

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance on
16 March 2001 by The Procter & Gamble Company, estab-
lished in Cincinnati (United States of America), represented by
Thierry van Innis,
lawyer, with an address for service in
Luxembourg.

The applicant claims that the Court should:

— annul the Board of Appeal’s decision of 14 December

2001;

— order the Office to pay all the costs.

Pleas in law and main arguments

The action is directed against the decision of the Office’s Third
Board of Appeal, dated 14 December 2000 (Case R 74/1998-
3), rejecting the applicant’s appeal against the decision of
18 March 1998 whereby the examiner refused registration of
the Community trade mark applied for under number 230680
on the absolute ground referred to in Article 7(1)(e)(i) of
Regulation No 40/94 on the Community trade mark.

— there is no abuse of a dominant position, so that the
Commission is mistaken in its hypothesis that Poste
Italiane has extended its position in the market with
respect to conventional deliveries into the neighbouring
but distinct market for day- or time-certain deliveries of
time-sensitive items.

Attention is drawn in this regard to the fact that, by decision
of 15 March 1998, the same Board of Appeal rejected an
application for registration in respect of the same mark. That
decision was annulled by the judgment delivered by the Court
of First Instance on 16 February 2000 in Case T-122/99