Case T-41/01: Action brought on 23 February 2001 by Rafael Pérez Escolar against Commission of the European Communities
Date: 2001-05-05
Institutions: Court of First Instance
Subjects: European Commission, Spain, State aid, action for failure to act, bank, complaint to the Commission

5.5.2001

EN

Official Journal of the European Communities

C 134/25

— the principle of equality by applying measures to the
applicants
justification,
between holders of rights who are broadcasters and
holders who are not,

discriminate, without

that

— Article 3(a)2 of the Directive

— by concluding that the UK measures are compatible
with Community law as regards the procedures
adopted by the UK in drawing up and consulting on
the UK measures.

— by concluding that the UK measures are compatible
with Community law, in that the measures infringe
general principles of Community Law, Articles 43
and 48 EC, the principle of free competition within
the internal market, discrimination on grounds of
nationality and infringement of the right to freedom
of expression,

— by excluding from its assessment of the UK measures
the provisions of the Broadcasting Act 1996 (sec-
tions 99 and 100) relating to the prohibition of
exclusivity and of mandatory licensing provisions.

The applicants further submit that Article 3(a) of the Directive
is inapplicable under Article 241 EC as was introduced by
means of an unlawful legislative procedure and has no legal
basis.

Finally, the applicants submit that, in adopting the contested
decision, the Commission infringed essential procedural safe-
guards by failing to adopt it in accordance with its internal
rules of procedure and by failing in its duty to state reasons
under Article 253 EC.

(1) OJ L 298, 17.10.1989, p. 23.

Action brought on 23 February 2001 by Rafael Pérez
Escolar against Commission of the European Communi-
ties

(Case T-41/01)

(2001/C 134/55)

(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 23 February 2001 by Rafael Pérez
Escolar, residing in Madrid, represented by Fernando Moreno
Pardo.

The applicant claims that the Court should:

— declare that

the Commission has failed to fulfil

its
obligations under the EC Treaty by failing to adopt any
decision whatever regarding the complaint made by the
applicant on 23 February 1999, relating to the State aid
granted by the Spanish authorities to Banco Espan˜ ol de
Crédito SA; and

— order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant states that, on 23 February 1999, he lodged a
complaint with the Competition Commissioner, claiming that
a number of financial measures had been adopted by the
Spanish authorities in favour of Banco Espan˜ ol de Crédito and
Banco de Santander, which in his view amounted to State aid.
Such aid, despite having been granted in 1994, was not fully
analysed by the Commission at the time.

That complaint was followed by the submission of a number
of documents and even a meeting between the applicant and
the relevant Commission services. Despite all the information
and documents provide by the applicant
in relation to
the measures complained of, those services took no action
whatsoever vis-à-vis the Spanish authorities. On 6 November
2000, the applicant, taking the view that, despite the com-
plexity of the case, the Commission had had more than a
reasonable period in which to adopt a position with regard to
the complaint made more than two years previously, lodged a
document formally requesting that a decision be adopted by
the Commission. Since that request, the period prescribed by
Article 232 EC has more than expired without the Commission
having defined its position.

The applicant claims that the Commission was under an
obligation to adopt a decision on the complaint either
declaring that the measures complained of do not constitute
State aid within the meaning of Article 87 EC or that they
must be characterised as such but are compatible with the
common market, or by initiating the formal
investigation
procedure provided for in Article 88(2) EC. The applicant
takes the view, accordingly, that the Commission has failed to
fulfil its obligations under the EC Treaty.