Case T-215/02: Action brought on 15 July 2002 by Santiago Gómez-Reino against the Commission of the European Communities
Date: 2002-10-12
Institutions: Court of First Instance
Subjects: ECHO, European official, action for annulment (EU), disciplinary proceedings, fact-finding mission, fraud against the EU, regulations for civil servants

12.10.2002

EN

Official Journal of the European Communities

C 247/13

COURT OF FIRST INSTANCE

Action brought on 2 July 2002 by the Congrès National
du Kurdistan against the Council of the European Union

(Case T-206/02)

(2002/C 247/22)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 2 July 2002 by the Congrès National
du Kurdistan (Kurdistan National Congress), established in
Brussels, represented by Jérôme Boisseau, Lawyer.

The applicant claims that the Court should:

— hold that Council Decision 2002/334/EC of 2 May
2002 (1) adversely affects the applicant’s reputation, name
and credibility;

— find that the contested decision proceeds from a substan-
tive error in that it refers to the PKK in the list of legal
persons covered by the Community measures to combat
terrorism;

— declare that the contested decision is manifestly vitiated
by an error of assessment in that it denies a political party
the means of expressing itself freely;

— for all

those reasons, partially annul

the contested

decision;

— order the Council to pay a sum of EUR 10 000 in respect
of irrecoverable expenditure incurred by the applicant.

is composed. Moreover,
the contested decision, which is
tantamount to a penalty, was enacted without the slightest
statement of reasons, thereby infringing essential procedural
requirements.

that

the applicant contends

the contested
Furthermore,
decision is founded on a substantive factual error in so far as
the PKK dissolved itself before the contested decision was
adopted and since 1999 at least has been advocating non-
violent action. The decision is also vitiated by a manifest error
of assessment inasmuch as it seriously prejudices the freedom
of expression guaranteed by the European Convention for
Human Rights.

(1) Council Decision 2002/334/EC of 2 May 2002 implementing
Article 2(3) of Regulation (EC) No 2580/2001 on specific
restrictive measures directed against certain persons and entities
with a view to combating terrorism and repealing Decision 2001/
927/EC (OJ 2002 L 116, p. 33).

(2) OJ 2002 L 344, p. 70.

Action brought on 15 July 2002 by Santiago Gómez-
Reino against the Commission of the European Com-
munities

(Case T-215/02)

(2002/C 247/23)

(Language of the case: French)

Pleas in law and main arguments

The applicant seeks the annulment of Council Decision 2002/
334/EC of 2 May 2002. That decision refers to the PKK (the
Kurdistan Workers’ Party)
in the updated list of persons,
groups and entities to which Council Regulation (EC) No 2580/
2001 of 27 December 2001 on specific restrictive measures
directed against certain persons and entities with a view to
combating terrorism (2) is applicable.

The applicant contends that that reference adversely affects the
reputation and credibility of the action engaged in by it and
numerous independent associations and persons of which it

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 July 2002 by Santiago Gómez-
Reino, resident in Brussels, represented by Marc-Albert Lucas,
Lawyer.

The applicant claims that the Court should:

— find that the European Anti-Fraud Office acted unlawfully
by not notifying him of a decision to open investigations
concerning him individually, not
informing him of
investigations liable to implicate him and not enabling
him to express his views on all the facts concerning him
before conclusions referring to him personally were
drawn from the investigations;

C 247/14

EN

Official Journal of the European Communities

12.10.2002

— annul the decisions of the Director of the European Anti-
Fraud Office and of the Commission disclosed by the
Commission press release of 26 February 2002 to open
or reopen, in September 2001, investigations concerning
the ECHO case or the procedure to which that case gave
rise, or as to the existence of new evidence in that case;

— annul the express decision of the Commission of 8 April
2002 rejecting the applicants’ complaints against the
decisions and failures to take measures imposed by the
Staff Regulations which he asks to be annulled or found
unlawful, or rejecting his requests for the measures
required by the Staff Regulations to be taken in relation
to him;

— annul the decision of the Director of the European Anti-
Fraud Office disclosed by the Commission press release
of 28 February 2002 to open a formal investigation
against former officials of the Unit for the Coordination
of Fraud Prevention;

— order the Commission to pay him EUR 1 000 000 in
compensation for non-material damage and harm to his
career, assessed provisionally, together with interest at
8 % per annum from 1 March 2002 until full payment;

— order the Commission to pay the costs.

— annul the unnotified and unpublished decision of the
Director of the European Anti-Fraud Office, which is
apparent from the document presented by the Vice-
President of the Commission to COCOBU (the Committee
on Budgetary Control) at its meeting on 11 March and
from his letters of 12 and 15 April to the chairman of
that committee, to open an investigation into alleged
procedural manipulations in the ECHO case attributable
to a ‘cartel of senior officials’ supposedly including the
applicant;

— annul the unpublished and unnotified decision of the
Director of the European Anti-Fraud Office, which is
apparent from the same documents, to reopen an investi-
gation against the applicant in the ECHO case on the
basis of supposedly new evidence in that case, capable of
justifying the reopening or the resumption of disciplinary
proceedings against him;

— annul the decision of the Commission which was notified
to him by a letter from its Vice-President of 8 April 2002,
in so far as it rejects his requests for assistance made on
8 March 2002 or earlier or does not meet its obligation
to supply that assistance automatically by appropriate
means;

Pleas in law and main arguments

(i)

in particular,
By the present action the applicant seeks,
annulment of:
the decisions to reopen investigations
concerning the European Community Humanitarian Office
(ECHO) case because allegedly new facts had arisen and
subsequently to open a formal investigation against former
officials of the Unit for the Coordination of Fraud Prevention
(UCLAF) and the applicant; and (ii) of the Commission decision
refusing the applicant’s request for assistance with regard to
statements published in the press which in the applicant’s view
are defamatory because they call his professional probity into
question.

In support of his claims, the applicant pleads:

— infringement of the second paragraph of Article 25 of the
Staff Regulations, of rights of the defence and of Article 4
of Commission Decision 1999/396/EC, ECSC, Eura-
tom (1), in that he was not notified of a decision to open
an investigation concerning him individually, was not
informed of the possibility of his implication in past or
current investigations, was not informed of the allegations
made against him and was not invited to express his
views on all the facts concerning him before conclusions
referring to him by name were drawn from the investi-
gations;

— annul the implied decision of the Director of the European
Anti-Fraud Office of 7 July 2002 rejecting the applicant’s
complaints of 8 March against the decisions and failures
to take measures imposed by the rules of law applicable
to the Office which he asks to be annulled or found
unlawful, or rejecting his requests for the measures
required by the rules of law applicable to the Office to be
taken in relation to him;

— infringement of the principles of certainty and of the
protection of legitimate expectations, in that the European
Anti-Fraud Office, with the agreement of
the Com-
mission, regarded as new matters capable of justifying the
reopening of formal investigations or fresh disciplinary
measures against the applicant matters which the Com-
mission had precluded from being such in previous
decisions, specifically in the decisions following Case
T-108/00 R Gómez-Reino v Commission (2);

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.