Case T-302/01: Action brought on 10 December 2001 by Gerhard Birkhoff against Commission of the European Communities
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), family benefit, fraud against the EU, redemption

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.

C 44/26

EN

Official Journal of the European Communities

16.2.2002

— order the Commission to compensate the applicant for
the ensuing damage, in particular those arising from the
loss of Sickness Insurance cover and other non-material
damage;

— order the Commission to pay the costs.

The applicant claims that the Court should:

— annul the decision of the Commission not to take action

on complaint No 1999/5330;

— order the European Commission to take the following

measures:

Pleas in law and main arguments

The applicant, a former official of the defendant institution, at
present retired, contests the withdrawal, with retrospective
effect, of family allowance in respect of a dependent daughter.
The contested measure is based on ‘evidence that the income
from gainful employment of [his] daughter exceeds 40 % of
the basic salary of an official in Grade D 4/1’.

In support of his arguments, the applicant claims:

— unlawfulness of the act on the ground of misuse of
powers (lack and inadequacy of reasons, erroneous
assumptions and distortion of the facts)

— infringement of Article 2(5) of Annex VII to the Staff

Regulations

— breach of the principle of non-discrimination

— breach of the principle of legitimate expectations and

failure to protect acquired rights.

1.

2.

3.

require the Government of the Kingdom of Spain
not to implement the decision to alter the route
followed by Subsection II (Ebro river crossing) of the
Zaragoza-Lleida section of the Madrid-Barcelona-
French border high speed line, known as Solucio´ n
Sur Alternativa B (Southern Solution, Option B),
declared environmentally viable by the Spanish
Council of Ministers on 25 February 1999 and
approved by way of resolution by the Secretary of
State for Infrastructure and Transport of 17 March
1999;

further require the Kingdom of Spain to ensure that
those works be carried out using the only properly
approved route adopted by resolution of the Sec-
retary of State for Town and Country Planning of
24 February 1995 as Alternativa Norte (Northern
Option); and

any other measure which in consequence of the
preceding orders may be deemed appropriate,
including a warning from the Commission to the
that enforcement measures
Spanish authorities
could be adopted in the absence of adequate com-
pliance, including infringement proceedings and/or
the withdrawal of European funding for the project.

Action brought on 30 November 2001 by Ayuntamiento
de Osera de Ebro against Commission of the European
Communities

(Case T-303/01)

(2002/C 44/46)

(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 30 November 2001 by Ayuntami-
ento de Osera de Ebro (Zaragoza), Osera de Ebro (Zaragoza,
Spain), represented by Javier Arin˜ o Barcelona, lawyer.

Pleas in law and main arguments

The applicant states that it is one of the municipal authorities
affected by the route of the High Speed Madrid-Zaragoza-
French Border railway line, for which the Spanish Government
obtained funding from the Community cohesion fund (Project
No 95/11/65/007) (1).
the Spanish administrative
Initially,
the
authorities approved the route for Subsection II of
Zaragoza-Lleida section, which opted, from the two possible
choices at the Source of the Ebro, for the ‘Northern Option’,
which did not affect the protected area of the Soto de Aguilar,
a riverside wilderness of great ecological and wildlife value
within the municipality limits of the applicant. Subsequently,
despite the report to the contrary drawn up by the competent
environmental authorities, the Spanish Government decided
to alter the route initially planned, opting for Solucio´ n Sur
Alternativa B (Southern Solution, Option B), which not only
is the less environmentally friendly but is also the more
expensive.