Case T-139/01: Action brought on 19 June 2001 by Comafrica SpA and Dole Fresh Fruit Europe Ltd. & Co. against the Commission of the European Communities
Date: 2001-09-01
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), tariff quota, tropical fruit

C 245/26

EN

Official Journal of the European Communities

1.9.2001

The dispute between the parties concerns the question of the
costs which the applicant must bear,
in accordance with
Article 6 of Regulation (EC) No 1135/1999, in its capacity as
a party awarded a contract for the procurement of agricultural
products.

The applicant argues that Article 6 of Regulation (EC)
No 1135/1999 does not oblige the party awarded the procure-
ment contract to draw up the transport documents for the
delivery of the goods to Russia by the party awarded the
transport contract, or to bear the costs thereof. All costs arising
from the transport side of the tender were the responsibility of
the party awarded the transport contract. It was impossible for
the procurer to supply appropriate transport documents.

In the alternative, the applicant bases its claim on failure by
the Commission to fulfil its precontractual duty of providing
information. As the interpretation of the provision in dispute,
and thus the scope of the contractual obligation, was not
clearly formulated, the Commission should have informed the
applicant on the point. Failure to provide such information
caused loss to the applicant.

(1) In accordance with Council Regulation (EC) No 2802/98 of
17 December 1998 on a programme to supply agricultural
products to the Russian Federation (OJ 1998 L 349, p. 12) and
Commission Regulation (EC) No 111/1999 of 18 January 1999
laying down general rules for the application of Council Regu-
lation (EC) No 2802/98 on a programme to supply agricultural
products to the Russian Federation (OJ 1999 L 14, p. 3).

(2) OJ 1999 L 135, p. 85.
(3) OJ 1999 L 242, p. 13.

Action brought on 19 June 2001 by Stadtsportverband
Neuss e.V. against Commission of the European Com-
munities

Pleas in law and main arguments

The applicant contests the abovementioned recovery decision
of the Commission demanding partial repayment of a total
sum of EUR 20 000 transferred to the applicant
in the
context of
in the amount of
the Eurathlon programme,
DEM 31 911,11, on the ground of impermissible profit.

The applicant submits that the conditions for a demand for
repayment of the subsidy given, agreed between the parties
when the subsidy was granted, are not met. In particular, the
final accounts for the project do not show a profit, so that the
demand for repayment is unlawful. The defendant might at
most be entitled to a proportionate share of 18,4 % of the
surplus. It is, however, demanding payment of the entire
(incorrectly calculated) surplus.

Moreover, the applicant relies on limitation of the defendant’s
claims. It submits that the ISO 1994 event took place in 1994,
and any claims for repayment arose in that year. The notice to
pay dates from 9 April 2001, however, and was therefore
made at least six years in law after the alleged debt arose.

Action brought on 19 June 2001 by Comafrica SpA
and Dole Fresh Fruit Europe Ltd. & Co. against the
Commission of the European Communities

(Case T-139/01)

(2001/C 245/43)

(Language of the case: English)

(Case T-137/01)

(2001/C 245/42)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 19 June 2001 by Comafrica SpA,
Genoa, Italy, and Dole Fresh Fruit Europe Ltd. & Co., Ham-
burg, Germany, represented by Bernard O’Connor and Philip
Bastos G. Martin of O’Connor and Company, Brussels
(Belgium).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 19 June 2001 by Stadtsportver-
band Neuss e.V. of Neuss, Germany, represented by Heinz
Günther Hüsch, lawyer.

The applicant claims that the Court should:

— Annul the recovery decision of the European Commission

of 9 April 2001, account number 3240302372;

— Order the defendant to pay the costs.

The applicant claims that the Court should:

— declare the application admissible;

— declare void, pursuant to Articles 230 and 231 EC,
Commission Regulation (EC) No 896/2001 in so far as it
affects the applicants, or in the alternative to declare the
said regulation void erga omnes;

— declare void, pursuant to Articles 230 and 231 EC,
Commission Regulation (EC) No 1121/2001 in so far as
it affects the applicants, alternatively, to declare the said
regulation void erga omnes;

1.9.2001

EN

Official Journal of the European Communities

C 245/27

— order the Commission, pursuant to Articles 235 and the
second paragraph of 288 EC, to make good the damage
caused to the applicants by the wrongful adoption of
either or both Regulation No 896/2001 and Regulation
No 1121/2001, and to pay compensatory interest on all
sums found to be due, such interest to run from the date
on which the damage materialised;

Commission has exceeded the powers granted to it by
the Council to manage the banana Common Market
Organisation lawfully in accordance with good adminis-
trative practice.

— The Commission has infringed the applicants’ right to
have their full entitlement to licences respected, and has
allowed certain operators to gain inappropriate rights.

— make any orders which the Court considers necessary
and in particular, pursuant to Article 65 of the Rules of
Procedure of the Court of First Instance, to request the
Commission to provide figures concerning the actual
licence usage for 1994, 1995, 1996; and

(1) OJ L 126 of 8.5.01, p. 6.
(2) OJ L 153 of 8.6.01, p. 12.

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The present application concerns two regulations:

— Commission Regulation (EC) No 896/2001 of 7 May
2001 laying down detailed rules for applying Council
Regulation (EEC) No 404/93 as regards the arrangements
for importing bananas into the Community (1); and

— Commission Regulation (EC) No 1121/2001 of 7 June
2001 fixing the adjustment coefficients to be applied to
each traditional operator’s reference quantity under the
tariff quotas for imports of bananas (2).

The applicants submit that:

— The method which the Commission has adopted in
Article 4(1) of Regulation No 896/2001 for calculating
operator reference quantities is illegal, inasmuch as it
fixes those quantities by reference to total figures which
the Commission must know to be substantially incorrect.
In addition, Regulation No 896/2001 precludes the
correction of reference quantities either by the Com-
mission itself or by the Member States acting as its agents.

— Regulation No 1121/2001 fixes

the Applicant’s
entitlement to licences for the second half of 2001 and
was adopted on the basis of Article 5 of Regulation
No 896/2001. As to what is claimed to be the incorrect
reference quantities adopted on the basis of Article 4 of
Regulation No 896/2001, an essential element in the
calculation of the adjustment coefficient, the adjustment
coefficient itself is incorrect and illegal.

— In adopting both these Regulations, on the basis of facts
that the Commission must know to be incorrect, the

Action brought on 18 June 2001 by Paul Doyle against
Commission of the European Communities

(Case T-140/01)

(2001/C 245/44)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 June 2001 by Paul Doyle,
residing in Brussels, represented by Jean-Noël Louis and
Véronique Peere, lawyers.

The applicant claims that the Court should:

— annul

the decision of

to
EUR 1 880 .10 the amount transferable to the United
Kingdom with effect from October 2000;

the Commission to limit

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an Irish national, has lived for several years in
the United Kingdom, having been assigned to a post in
Brussels. He challenges the Commission’s decision to limit the
amount transferable to the United Kingdom to 19 % of his net
salary. In support of his application, the applicant alleges
infringement of Article 17 of Annex VII to the Staff Regulations
and invalidity of the general provisions implementing it.
According to the applicant, the Commission was required to
transfer a higher rate on account of the regular expenditure
which he continues to incur in the United Kingdom and in
respect of his dependent children who are pursuing their
studies there.