Case T-301/01: Action brought on 30 November 2001 by Alitalia — Linee aeree italiane S.p.A. against the Commission of the European Communities
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), air transport, financial aid

C 44/24

EN

Official Journal of the European Communities

16.2.2002

Action brought on 7 December 2001 by Carlo De Nicola
against European Investment Bank

(Case T-300/01)

(2002/C 44/43)

(Language of the case: Italian)

An action against the European Investment Bank was brought
before the Court of First Instance of the European Communities
on 7 December 2001 by Carlo De Nicola, represented by Luigi
Isola, lawyer.

The applicant claims that the Court should:

— annul the verbal dismissal of 6 September 2001 notified
to the applicant by Thomas Beckett, the director of the
Rome office, the subsequent dismissal served on the
applicant by letter received on 12 September 2001,
signed by the President of the European Investment
Bank (EIB), Philippe Maystadt, together with all other
consequent and related acts, including necessarily certain
articles of the Staff Regulations and the Code of Conduct,
in so far as the latter applies to the applicant;

— order the EIB to reinstate the applicant, restore his career
as from February 1999 and pay the remuneration due to
him in the meantime (together with interest) and pay the
costs of the proceedings and damages in the terms set out
below and to be further expounded in the course of
proceedings.

Pleas in law and main arguments

The applicant in the present action, who is challenging his
dismissal by the defendant and the facts surrounding it, is the
same one as in T-7/98, T-208/98 and T-109/99 De Nicola v
EIB (1) and T-120/01 De Nicola v EIB (2).

In support of his arguments, the applicant claims:

— that

the Code of Conduct does not apply to him,
inasmuch as it is a unilateral act drawn up and issued
solely by the employer, not being required by the
individual contract of employment or by the Staff Regu-
lations;

— implied refusal to initiate disciplinary proceedings, in that
it was only by letter of 13 June 2001 that the President
of the EIB informed the applicant of the misconduct and
infringements alleged against him, dating back to 1998.
Such delay moreover is in breach of the employee’s rights
of defence;

— that the Disciplinary Board was irregularly constituted.
The applicant claims in that respect that Article 40 of the
Staff Regulations is unlawful inasmuch as it does not
provide in any event for the substitution of the Head of
Personnel, despite the existence of a dispute between him
and the applicant, and inasmuch as there is no provision
requiring a quorum of 4 voting members;

— infringement of the procedure provided for in Article 40

of the Staff Regulations;

— irregularity of the verbal dismissal of 6 September 2001,
inasmuch as such dismissal is not provided for by any
Community or other provision, and it was moreover
intimated by the Director of the Rome office, whereas the
Staff Regulations accords this power only to the President
of the EIB;

— irregularity of the dismissal of 12 September 2001. The
applicant points out in that respect that the misconduct
leading to the disciplinary measure is certainly not held
to be serious since the President, by virtue of Article 39
of the Staff Regulations, could have immediately sus-
pended the official. Furthermore, the defendant made
hardly any mention of specific times and places nor
adduced evidence of the misconduct but instead sought
to dismiss him for failure to cooperate during the
disciplinary proceedings despite his never having been
accused of such failure.

(1) Judgment of 23 February 2001 ECR-SC 2001 I-A-49, II-185.
(2) OJ 2001 C 227, p. 30.

Action brought on 30 November 2001 by Alitalia —
Linee aeree italiane S.p.A. against the Commission of the
European Communities

(Case T-301/01)

(2002/C 44/44)

(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

16.2.2002

EN

Official Journal of the European Communities

C 44/25

European Communities on 30 November 2001 by Alitalia —
Linee aeree italiane S.p.A., represented by Mario Siragusa, Gian
Michele Roberti, Giuseppe Scassellati, Francesca Maria Moretti
and Francesco Sciaudone, lawyers.

The applicant claims that the Court should:

— annul the second decision in its entirety;

— in the alternative, annul Article 1 of the second decision
in so far as it subjects compatibility of the injection of
capital to compliance with the conditions laid down in
the first decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action has been brought against Commission
Decision 2001/723/EC of 18 July 2001 concerning the
recapitalisation of the applicant company (1). The applicant
claims that that decision reproduces the wording of Articles 1,
2 and 3 of Decision 97/789/EC, whereby the defendant
authorised the aid granted by Italy to Alitalia, in the shape of a
contribution of capital totalling ITL 2 750 billion intended to
cover the restructuring of the company. The action against the
latter decision was upheld by the Court (2) on the grounds of
failure to state reasons and manifest error of assessment.

In regard to the lack of reasoning,

In the decision under challenge in the present action, the
Commission notes that Article 233 EC does not require it to
reopen the procedure and once again follow all the stages of
the
that procedure.
Commission states specifically that the procedure in question
may be taken up again from the stage at which the flaw in
question occurred. So far as manifest errors of assessment are
concerned, the second decision must be based on the factual
evidence gathered when the first decision was adopted and the
errors identified by the Court relate to assessments of fact the
truth of which was not in dispute.

— breach of the principle of sound administration, legal
certainty and legitimate expectations, as well as of the
obligation imposed by Article 4(5) of Council Regulation
(EC) No 659/1999 of 22 March 1999 laying down
detailed rules for the application of Article 93 EC (3),
inasmuch as the aforementioned general principles and
provision required the Commission to act within two
months;

— breach of the rights of defence of the applicant, given
that it was impossible for the applicant to defend itself by
participating in the administrative procedure leading to
the adoption of the contested act;

— breach of the obligation to provide a statement of reasons.

(1) OJ 2001 L 271, p. 28.
(2) Case T-296/97 Alitalia v Commission [2000] ECR II-3871.
(3) OJ 1999 L 83, p. 1.

Action brought on 10 December 2001 by Gerhard Bir-
khoff against Commission of the European Communities

(Case T-302/01)

(2002/C 44/45)

(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 10 December 2001 by Gerhard
Birkhoff, represented by Vincenzo Salvatore, lawyer

In support of its arguments, the applicant claims:

— infringement of Article 233 EC;

— infringement of Article 88(2) EC inasmuch as the Com-
mission could not,
in the present case, adopt a new
decision of content identical to the preceding annulled
decision without initiating once again the procedure
provided for therein.

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities, Directorate General — Admin B, of
26 September 2001, as manifestly unfounded in fact and
in law, together with any preceding, related or subsequent
acts, in particular ‘Notification of amendment No 10 to
the demand for payment of 21 February 1992’, issued on
4 July 2001.