Case T-157/01: Action brought on 11 July 2001 by Danske Busvognmænd against the Commission of the European Communities
Date: 2001-09-29
Institutions: Court of First Instance
Subjects: Denmark, European Commission, State aid, action for annulment (EU), bus, professional association

29.9.2001

EN

Official Journal of the European Communities

C 275/13

— Article 34 of the Staff Regulations is not applicable to his
employment. His probationary period was governed by
Article 14 of the Conditions of Employment of Other
Servants of
the European Communities and by the
contract.

— Under Article 5(a) of the contract and Article 14 of the
Conditions of Employment, his probationary period was
six months, coming to an end on 30 April 2000.

— He was not dismissed during that six-month probationary

period.

— The termination decision did not provide him with the
requisite three- months’ notice and was thus made in
breach of Article 5(b) of the contract and Article 47 of
the Conditions of Employment. In addition, no or no
full compensation has been paid, in further breach of
Article 47.

— In any event the applicant never accepted the proposed,
or any, extension of his probationary period. On the
contrary, he expressly and repeatedly rejected any exten-
sion whatsoever.

Action brought on 11 July 2001 by Danske Busvognmænd
against the Commission of the European Communities

(Case T-157/01)

(2001/C 275/27)

(Language of the Case: Danish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 11 July 2001 by Danske Bus-
vognmænd, Frederiksberg (Denmark), represented by Per Dal-
skov.

The applicant claims that the Court should:

28 March

— Primarily: annul the European Commission’s decision
aid measure
of
No NN 127/2000 (State aid for Combus A/S) (SG (2001)
D/287297), and rule that the decision is void pursuant to
the first paragraph of Article 231 EC;

concerning

2001

— In the alternative: annul the European Commission’s
approval of the portion of the aid granted to Combus A/S
on 31 May 1999;

— Order the European Commission to pay the costs
involved in bringing the case before the Court of First
Instance.

Pleas in law and main arguments

In 1995 the Danish Minister for Transport established the
company DSB Busser A/S with ownership vested in De Danske
Statsbaner (DSB). The company took over buses and other
assets from DSB and operated a number of regional and local
bus routes in Denmark. The company was subsequently
transferred to the Danish Ministry of Transport and changed
its name to Combus A/S (’Combus’).

In connection with the company’s taking over of the operation
of routes, employees of DSB placed on loan to Combus were
offered compensation for transferring to employment on a
group contract basis, this compensation being paid by DSB. In
1999 the Ministry of Transport granted Combus a secured
loan of DKK 100 million and made a capital injection of DKK
200 million, ostensibly in order to prevent Combus, which
was in serious financial difficulties, from going into liquidation.

The applicant, which is a branch organisation of bus compani-
es, lodged a complaint with the Commission in November
1999 in regard to the above measures.

In November 2000 the Danish State informed the Commission
that it intended to grant State aid to Combus in connection
with the company’s sale to the English-owned company Arriva
Danmark A/S. The aid was estimated at DKK 171.8 million. In
the contested decision the Commission approved the aid in
the respective amounts of DKK 300 million and DKK 171.8
million.

as

the

conditions

aid in so far

The applicant claims that the Commission has approved
unlawful State
in
Article 87(3)(c) EC have not been satisfied. Even though the
Commission can, as a general rule, lawfully apply the frame-
work provisions on State aid to undertakings in crisis, those
framework provisions cannot depart from the provisions of
Article 87 EC. The aid for Combus, it argues, is not in the
Community interest and does not serve those objectives which
may justify approval of aid as restructuring aid. The aid was in
the nature of operating aid or, possibly, rescue aid, but this has
not been mentioned by the Commission as relevant in this
case. Further, the aid had the effect of distorting competition.

The applicant also claims that the Commission has mistakenly
dealt with only two out of three tranches of State aid in that it
failed to address the obligation which DSB undertook to pay
compensation to employees transferring to employment on a
group contract basis. The Commission further erred, it argues,
in treating the State aid as one entire aid measure despite the
fact that three separate and independent State aid measures
were granted. While there was presumably a causal connection
between the two aid amounts of DKK 300 million and DKK
171.8 million, these were separate in time and served different
objectives.

C 275/14

EN

Official Journal of the European Communities

29.9.2001

The applicant goes on to argue that the Commission erred in
applying Regulation (EEC) No 1191/69 of the Council (1) to
It submits that Combus has neither
the situation in this case.
a ‘tariff obligation’ nor an ‘obligation to operate’, and that the
company does not provide a public service. The regulation is
not applicable to Combus and the State aid granted to Combus
does not come with the scope of that regulation.

In the contested decision, the Commission proceeded on the
basis that the aid for Combus is restructuring aid. Against this,
the applicant argues that the aid granted is not restructuring
aid, but rather an operating subsidy, and that at no time was a
restructuring plan submitted for any of the three subsidies
granted in total. Further, it is a condition of the framework
provisions that aid recipients must contribute significantly to
the restructuring programme using their own means from
external financing, and it is, according to the applicant, obvious
that Combus did not itself make any contribution.

So far as Article 73 EC is concerned, the applicant submits
inter alia that neither the Member States nor the Commission
can invoke Article 73 EC in order to legitimise aid for the
transport industry or transport objectives which cannot be
regarded as being compatible with Article 87 EC.

The applicant concludes by arguing that the Commission has
infringed the principles of equal treatment and proportionality,
has failed to meet its obligation to provide reasons, and has
committed essential procedural errors, for instance through its
use of fundamentally flawed facts in support of the decision.

(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on
action by Member States concerning the obligations inherent in
the concept of a public service in transport by rail, road and
inland waterway (OJ, English Special Edition 1969(I), p. 276).

Action brought on 12 July 2001 by Christopher Wilkin-
son against Commission of the European Communities

(Case T-159/01)

(2001/C 275/28)

(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 12 July 2001 by Christopher
Wilkinson, residing in Brussels, represented by Marc-Albert
Lucas, lawyer.

— to assign to the unit in Directorate A of DG INFSO
responsible for telecommunications the duties of
organising and managing the internet infrastructures
which the applicant carried out in his capacity as
advisor;

— to abolish his duties as advisor;

— to transfer him in due course to another Directorate

General by way of redeployment; and

— to transfer him in the interim as advisor ad personam

at Directorate A of DG INFSO.

— annul the implied decision rejecting a number of adminis-
trative complaints lodged by the applicant on 4 and
19 December 2000, and on 19 January 2001, against the
decisions of 1 December.

— order the defendant to pay the costs.

Pleas in law and main arguments

— the existence in the present case of a manifest error of

assessment;

— manifestly inadequate reasons for the contested acts;

— infringement of

the decision of 26 July 2000
implementing ‘peer review’, as set out in the memor-
andum of 13 September 2000 from the Secretary General
to the Directors General and Heads of Service;

— breach of the duty to have regard for the welfare of

officials;

— infringement of Article 7(1) of the Staff Regulations.

Action brought on 17 July 2001 by Juan Pedro Pérez
Escanilla against the Commission of the European Com-
munities

(Case T-163/01)

(2001/C 275/29)

(Language of the case: French)

The applicant claims that the Court should:

— annul the decisions of 1 December 2000 of the Director

General of DG INFSO:

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 July 2001 by Juan Pedro Pérez
Escanilla, residing in Brussels, represented by Jean-Noël Louis
and Véronique Peere, lawyers.