Case T-217/02: Action brought on 22 July 2002 by Ter Lembeek International N.V. against the Commission of the European Communities
Date: 2002-10-12
Institutions: Court of First Instance
Subjects: State aid, action for annulment (EU), claim, law of obligations, share, shareholder

12.10.2002

EN

Official Journal of the European Communities

C 247/15

— infringement of the principle of legality of administrative
action and of the first subparagraph of Article 4(1) of
Regulation No 1073/1999 of the European Parliament
and of the Council (3), in that the investigations of the
European Anti-Fraud Office were opened or reopened on
the basis of information obtained in breach of the secrecy
of the proceedings of the Disciplinary Board which is to
be observed under the second paragraph of Article 6 of
Annex II to the Staff Regulations, in conjunction with a
breach of the obligation of discretion laid down for
officials by the second paragraph of Article 17 of the
Staff Regulations and for members of the Commission by
Article 287 of the EC Treaty.

( 1) Decision of 2 June 1999 concerning the terms and conditions for
internal
investigations in relation to the prevention of fraud,
corruption and any illegal activity detrimental to the Communities’
interests (OJ 1999 L 149, p. 57).

( 2) That case was brought to a close by an order of removal from the

register of 3 July 2000 (OJ 2000 C 259, p. 31).

( 3) Regulation of 25 May 1999 concerning investigations conducted
by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).

Action brought on 22 July 2002 by Ter Lembeek Inter-
national N.V. against the Commission of the European
Communities

(Case T-217/02)

(2002/C 247/24)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 July 2002 by Ter Lembeek
International N.V., having its registered office in Wielsbeke
(Belgium), represented by Jean-Pierre Vande Maele, Frank
Wijckmans and Filip Tuytschaever.

The applicant claims that the Court should:

1. Annul Articles 1 and 2 of the Commission decision of
24 April 2002 concerning State aid granted by Belgium
to the Beaulieu Group (Ter Lembeek International);

2. Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was involved as a shareholder in three companies
under the name Verlipack. When it became a shareholder in
those companies it assumed responsibility for repurchasing a
specified number of shares from the public authorities. In
1991 the authorities concerned insisted on compliance with
this obligation of repurchase and the applicant accordingly
found itself obliged to buy back the shares. Repurchase was
spread over several years.

In 1996 the Regional Authority for Wallonia pressed for
accelerated repurchase of those shares by the applicant. The
latter thereupon took over the shares from the Regional
Authority for Wallonia, which thereby obtained an outstand-
ing claim against the applicant. According to the applicant,
the purchase had no economic significance for it and the
shares were of no value to it. The shares, however, had to be
bought
for a fixed price. The applicant also derived no
advantage whatever from the shares as they were shortly
afterwards brought into a separate company over which the
applicant had no control.

In 1998 the Regional Authority for Wallonia reached agree-
ment with the applicant that it would transfer its shares in
Verlipack Holding II to that Authority. In exchange, the claim
which that Authority held against the applicant would lapse.

The decision under challenge treats this latter agreement as
constituting State aid and as being incompatible with the
Common Market. That decision states that the shares given in
payment were at that moment in fact worthless. The Regional
Authority for Wallonia thus permitted its claim against the
applicant to lapse without receiving any consideration. The
decision accordingly also takes the view that the applicant
obtained free of cost the shares which it was required to
purchase from the Regional Authority for Wallonia in 1996.

According to the applicant, the decision under challenge
breaches Article 87(1) EC and Articles 7 and 13 of Regulation
No 659/1999. (1) It argues that no benefit was obtained. In its
view,
the economic value of the shares when they were
repurchased in 1996 was nil, or even negative, and it also
derived no advantage from those shares. Moreover, according
to the applicant, it was not the beneficiary of any aid measure,
as it held the shares only for a very short period of time. It
goes on to submit that there was no distortion of competition.
According to the decision under challenge, competition was
distorted within the textiles sector, whereas the alleged aid
measure was granted within the glass sector.

The applicant pleads, second, an infringement of the pro-
portionality principle and Article 14 of Regulation No 659/
1999. In its opinion, the requested repayment of the aid bears
no relation to the advantage allegedly enjoyed.

C 247/16

EN

Official Journal of the European Communities

12.10.2002

The applicant further claims that there has been an infringe-
ment of the principle of equal treatment and argues that two
separate valuation methods are applied in the decision under
challenge. For the valuation of the shares which it was forced
to purchase, the decision applies a nominal price, which,
however, according to the applicant, was much higher than
the true value of the shares. For the valuation of the shares
which the applicant transferred to the Regional Authority for
Wallonia by way of payment, however, the decision applies
the real value of the shares, which at that time was considered
to be zero.

In conclusion, the applicant argues that there has been an
infringement of the principle that reasons must be given.

( 1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ 1999 L 83 of 27.3.1999, pp 1 to 9).

Action brought on 18 July 2002 by Daniela Napoli
Buzzanca against the Commission of the European Com-
munities

(Case T-218/02)

(2002/C 247/25)

(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 18 July 2002 by Daniela Napoli
Buzzanca, residing in Brussels, represented by Georges Vander-
sanden and Laure Levi, lawyers.

The applicant claims that the Court should:

— annul the decisions of the appointing authority, probably
adopted on 30 January 2002, appointing Ms S. as
director,
in grade A 2, of Directorate B (Multilateral
relations and human rights) of the External Relations
Directorate-General (RELEX) and rejecting the application
of the applicant for that post;

— order the defendant to pay damages assessed, as at the
date of the action and subject to possible increase, in the
sum of 23 213,96 euros;

Pleas in law and main arguments

The applicant, a grade A 3 official working in the External
Relations Directorate-General, is contesting the rejection by
the appointing authority of her application for the post of
director of Directorate B (Multilateral relations and human
rights).

In support of her claims, the applicant pleads:

— infringement of Articles 7, 27, 29(1)(a) and 45 of the
Staff Regulations, breach of the principle that officials
should have reasonable career prospects and of the
principle of non-discrimination, and non-compliance
with the terms of the vacancy notice. She considers in
that regard that, by omitting to carry out an examination
of the comparative merits of the candidates, the appoint-
ing authority ultimately took into consideration an
application for the post which manifestly failed to fulfil
the conditions laid down by the vacancy notice;

— non-compliance with the obligation to provide a state-

ment of reasons.

Action brought on 22 July 2002 by Antonio Silva against
Commission of the European Communities

(Case T-220/02)

(2002/C 247/26)

(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 22 July 2002 by Antonio Silva,
residing in Brussels, represented by Albert Coolen, Jean-Noël
Louis and Etienne Marchal, lawyers.

The applicant claims that the Court should:

— annul the decision of the Commission not to promote
the applicant to Grade A 4 in the 2001 promotions
procedure, as evidenced by the publication in Adminis-
trative Information No 72/2001 of 14 August 2001 of
the list of officials promoted to that grade;

— order the defendant to pay all the costs.

— order the defendant to pay the costs.