Case T-286/01: Action brought on 22 November 2001 by Johannes Priesemann against the European Central Bank
Date: 2002-02-02
Institutions: Court of First Instance
Subjects: European Central Bank, European official, action for annulment (EU), allowances and expenses, education grant, equal treatment

C 31/14

EN

Official Journal of the European Communities

2.2.2002

— order the Commission to pay the costs incurred by the

Applicant in the present proceedings;

— take further action as the Court may deem appropriate.

Pleas in law and main arguments

On 7 July 1994, the Applicant, a company in the United Parcel
Services Group (UPS), which distributes parcels throughout
the world, lodged a complaint with the Commission alleging
ongoing state aid arising from, among other things, the
covering of losses and cross-subsidisation of the parcel service
by monopoly revenues from Deutsche Post’s letter post
activities; by the same letter a complaint was also filed under
Article 82 of
the
Commission informed the Applicant that it would examine
the position and the behaviour of Deutsche Post AG under
Article 82 of the Treaty and would not begin, at least for the
time being, a procedure under Article 88. The Applicant
lodged an Application asking the Court of First Instance to
annul this ‘decision’ (Case T-182/98) (1).

the EC Treaty. On 2 October 1998,

On 8 June 1998, the Applicant filed another complaint,
alleging that state aid was involved in the use of monopoly
revenues for the financing of the acquisition of shares of DHL
International. On 21 December 1998 it sent a letter to the
Commission asking it to take a position on its complaint
within two months. The period of two months expired without
the Commission having taken a decision or defined its position
and accordingly the Applicant initiated proceedings under
Article 232 of the Treaty (Case T-98/99) (2).

By letter of 17 August 1999, the Commission notified the
Federal Republic of Germany of its decision to initiate the
procedure laid down in Article 88(2) of the Treaty (3). The
Application in Case T-182/98 was dismissed as inadmissible
(Order of the Fourth Chamber of 30 September 1999) and
Case T-98/99 was removed from the register (Order of the
President of the Fourth Chamber of 29 October 1999).

The Applicant submits that there is no justification for the
failure of the Commission to act within a reasonable time.
The preliminary investigation of the Commission has taken
63 months for the first complaint and 16 months for
the second complaint. Moreover, the formal
investigation
procedure has already taken two years. Consequently, Deutsche
Post has been able to profit from illegal state aid without any
interference from the Commission for an extremely long
period. As a result of this the competitive position of the
Applicant as a competitor of Deutsche Post has been seriously
affected.

(1) OJ C 20, 23.1.1999, p. 30.
(2) OJ C 174, 19.6.1999, p. 14.
(3) Published in the OJ C 306, 23.10.1999, p. 25.

Action brought on 22 November 2001 by Johannes
Priesemann against the European Central Bank

(Case T-286/01)

(2002/C 31/28)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 22 November 2001 by Johannes Priesemann, residing in
Frankfurt am Main, Germany, represented by Norbert Pflüger,
Rechtsanwalt.

The applicant claims that the Court should:

— set aside the decision of the European Central Bank to
refuse the education allowance for the benefit of his three
children, and, if necessary, set aside the decisions of the
defendant in the preliminary proceedings;

— order the European Central Bank to pay the costs.

On 5 June 2001, given that the Commission had not taken a
position as to the compatibility with the Common Market of
the measures that are the subject of the two complaints, the
Applicant asked it to define its position and/or take the
measures requested in each of the complaints. The time period
of two months within the meaning of Article 232 EC Treaty
expired on 5 August 2001 without the Commission having
defined its position with regard to the Applicant’s complaints.
Therefore the Applicant has lodged the present Application.

Pleas in law and main arguments

The applicant, an employee of the European Central Bank,
applied for an education allowance to send his three children
to an international school. The defendant refused the appli-
cation on the ground that the applicant did not fulfil the
conditions for the allowance, not being already entitled to the
expatriation allowance.

2.2.2002

EN

Official Journal of the European Communities

C 31/15

In support of his claim, the applicant argues that the contested
decision infringes the principle of equal treatment and thus
the Conditions of Employment. The
also Article 19 of
applicant maintains that, by comparison with the group of
employees entitled to expatriation allowance under Article 17
of the Conditions of Employment, he is being discriminated
against, and that that discrimination is not justified.

— order the Commission to pay to the applicant any amount
which the Court may deem appropriate by way of
compensation for the damage which the applicant has
suffered;

— order the Commission to pay the costs.

The applicant argues that the position is not affected by the
fact that Article 19 of the Conditions of Employment is only a
‘temporary solution’ pending the establishment of a European
School in the Frankfurt am Main area. In this phase also, he
maintains, he cannot be treated differently from the employees
entitled to expatriation allowance.

The applicant finds it incomprehensible that the education
allowance is linked to the existence of a right to expatriation
allowance under Article 17 of the Conditions of Employment.
He argues that the purpose of the education allowance is to
enable all-day schooling to take place, and that it is designed
not to benefit the employee but to support the dependent
child by making a contribution to its maintenance costs.

Action brought on 20 November 2001 by Bioelettrica
S.p.A. against the Commission of the European Communi-
ties

(Case T-287/01)

(2002/C 31/29)

(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 20 November 2001 by Bioelettrica
S.p.A., represented by Ombretta Fabe Dal Negro,

The applicant claims that the Court should:

— find that, by terminating by letter of 6 September
2001 the Thermie contract of 12 December 1994 with
Bioelettrica S.p.A., the Commission has acted unlawfully,
and consequently

— declare the contract valid and effective; and

Pleas in law and main arguments

The present application seeks a declaration that, by terminating
the Thermie contract, signed on 22 December 1994 bearing
number BM 1007/1994 IT/DE/UL/PO, for the construction of
a thermal power station in Italy, fuelled by plant-based biomass
based on a fluidised bed air gasifier on a combined cycle, the
Commission acted unlawfully. 40 % of the cost of the contract
was originally financed by Community contributions. The
applicant company, which was coordinating the project,
consisted of five of the seven original parties to the contract in
question.

The decision to terminate was adopted after a number of
problems regarding performance of the contract, in particular
with regard to the failure of Lurgi Energie, one of
the
contractors, to contribute technological support which led the
defendant to the conclusion that it would be impossible to
complete the programme of work of the project within the
agreed time limit.

In support of its application the applicant puts forward the
following pleas in law:

— failure to give one month’s notice by registered letter;

— failure to notify the termination to all the Contractors;

— infringement of Clause 8(8).2(f) of Annex II to the General
Terms and Conditions of the Contract, inasmuch as that
provision provides for the Commission to be able to
terminate the contract where the other contracting party
has not commenced work by the date laid down in the
contract, bearing in mind that the contract was entered
into in December 1994 and that Clause 2.1 of the
Contract lays down 1 January 1995 as the date for the
commencement of work. According to the applicant, it is
unbelievable that the Commission should have taken six
years to complain about the failure to commence work;

— breach of the general principle of legal certainty with
regard to legal relationships with a contractor who may
not under any circumstances be subject to unforeseeable
or unspecified consequences either as regards the con-
ditions which the parties have imposed on themselves or,
even less, the applicable legislation. The applicant points
out that this is particularly the case inasmuch as the
unforeseen effect arises from the exercise of an arbitrary
power, which is not provided for either under the law or
under the contract, to extinguish the existing contractual
relationship by withdrawing on the basis of an improper
and moreover unfounded ground;