Case T-30/02: Action brought on 13 February 2002 by Wolfgang Leonhardt against the European Parliament
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Parliament, European official, action for annulment (EU), promotion, regulations for civil servants

C 109/54

EN

Official Journal of the European Communities

4.5.2002

— order the defendant to pay the costs, expenses and fees.

Pleas in law and main arguments

The applicant claims that she has suffered non-material
damage on account of a breach of the principle of sound
administration and failure to act in good faith and to fulfil the
duty of cooperation as regards the drawing up of her
consecutive staff reports. In addition, according to the appli-
cant, those faults have been repeated time and again and testify
to a vexatious attitude.

Action brought on 4 February 2002 by First Data Corpor-
ation, FDR Limited and First Data Merchant Services
Corporation against the Commission of the European
Communities

(Case T-28/02)

(2002/C 109/104)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 February 2002 by First Data
Corporation, FDR Limited and First Data Merchant Services
Corporation, represented by Mr Pierre Bos and Mr Morten
Nissen of Dorsey & Whitney LLP, Brussels (Belgium).

The applicants claim that the Court should:

— annul the Commission’s Decision dated 9 August 2001
the EC
relating to proceedings under Article 81 of
Treaty and Article 53 of the EEA Agreement
(Case
No COMP/29.373 — Visa International) as regards
Article 1, fifth indent;

— order that the Commission pay the costs incurred by the

applicants in the present proceedings.

Pleas in law and main arguments

company that wishes to acquire merchants,
i.e. process
payments made with a credit card by customers at those
merchants’ businesses, must first issue a certain number of
credit cards to customers. The applicants specialise in acquiring
activities.

According to the applicants, the contested decision violates
the EC Treaty and the EEA Agreement.

Firstly, the applicants state that the decision lacks adequate
reasoning on why the rule in question does not constitute a
significant barrier to trade.

The applicants also claim that the Commission erred in law
when substituting reasoning under Article 81(3) EC Treaty for
reasoning under Article 81(1) EC Treaty. According to the
applicants, the pro-competitive and anti-competitive effects of
a restriction on competition can only be assessed under
Article 81(3) EC Treaty. In the contested Decision, however,
the Commission seems to argue that the rule in question falls
outside the scope of Article 81(1) EC Treaty since its benefits
outweigh the restriction on competition. This type of reasoning
can, according to the applicants, only be applied under
Article 81(3) EC Treaty.

Finally, the applicants claim that the rule in question does
restrict competition. The consequence of the rule is that, in
order to start acquiring activities, a company must first build
up banking activities to be able to issue cards to customers.
This is, according to the applicants, a barrier to entry into the
market of acquiring activities. Furthermore, the applicants
point out that the application of this rule is unclear, since the
number of cards to be issued is dependent on undefined
criteria. According to the applicants, the Commission should
have conducted an investigation on whether this rule is applied
in a uniform and non-discriminatory way.

Action brought on 13 February 2002 by Wolfgang
Leonhardt against the European Parliament

(Case T-30/02)

(2002/C 109/105)

(Language of the case: French)

The applicants contest the Decision of the Commission that
the ‘no-acquiring-without-issuing rule’ of the Visa Corporation
is not an appreciable restriction on trade and therefore falls
outside the scope of Article 81(1) of the EC Treaty and
Article 53 of the EEA Agreement. This rule requires that a

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on
13 February 2002 by Wolfgang Leonhardt, residing in La
Hulpe (Belgium), represented by H. Tagaras, avocat.

4.5.2002

EN

Official Journal of the European Communities

C 109/55

The applicant claims that the Court of First Instance should:

The applicant claims that the Court should:

— Annul the defendant’s decision of 11 June 2001 to reset
at zero the applicant’s tally of promotion points after his
promotion in 2000;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant objects to the decision of the European Parlia-
ment to reset at zero the applicant’s stock of promotion points
following his promotion in 2000, thereby preventing the
applicant from carrying over to his new grade the promotion
points that he acquired over and above the relevant threshold
for promotion.

The resetting at zero is the result of a transitional scheme prior
to the implementation of a new promotion system in the
European Parliament. Under that transitional scheme the tally
of promotion points is automatically reset at zero following
a promotion, whereas the definitive scheme provides that
promotion points acquired over and above the relevant
threshold are carried over to the new grade.

According to the applicant, the contested decision infringes
Article 45 of the Staff Regulations as well as the principle
prohibiting discrimination.

— annul the decisions taken by the Commission in relation
to commencing proceedings before the United States
District Court for the Eastern District of New York, with
Docket Number CV-02-0164, on 9 January 2002, in the
name of the European Community against the applicants;

— order that the Commission pay the costs of the present
proceedings, including those of the applicants and any
intervening parties.

Pleas in law and main arguments

The applicants are the defendants in legal proceedings brought
by the European Commission before a United States Court, in
which it is seeking damages in respect of allegedly unpaid
to other
customs duties and VAT, and relief
economic and non-economic injuries arising therefrom. The
payment of these customs duties and VAT has allegedly been
avoided by the smuggling of cigarettes into the European
Union. This is the third time that the European Commission
has commenced such proceedings (1). In the current proceed-
ings, the Commission is also acting as agent for Member States
in the recovery of these taxes allegedly owed to them.

in respect

The grounds and arguments are similar to those arising in Case
T-260/01 (2).

(1) The decision to commence the first proceedings is being contested
in Case T-379/00 (OJ C 79 of 10..3.2001) and the decision to
commence the second proceedings in Cases T-260/01 and
T-272/01 (OJ C 3 of 5.1.2002, p. 39 and p. 45).

(2) OJ C 3 of 5.1.2002, p. 39.

Action brought on 15 February 2002 by Japan Tobacco,
Inc. and JT International S.A. against the Commission of
the European Communities

Action brought on 14 February 2002 by José Cuenda
Guijarro against the Council of the European Union

(Case T-31/02)

(2002/C 109/106)

(Language of the case: English)

(Case T-32/02)

(2002/C 109/107)

(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 15 February 2002 by Japan
represented by
Tobacco,
Mr Onno W. Brouwer and Mr Paul Lomas of Freshfields
Bruckhaus Deringer, London (United Kingdom).

Inc. and JT International S.A.,

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 14 February 2002 by José Cuenda Guijarro,
residing in Brussels, represented by Jean-Noël Louis, lawyer,
with an address for service in Luxembourg.