Case T-295/02: Action brought on 27 September 2002 by Koninklĳke BAM NBM N.V. v Commission of the European Communities
Date: 2002-11-23
Institutions: Court of First Instance
Subjects: action for annulment (EU), competition, economic concentration, merger control, public works, road building, works contract

23.11.2002

EN

Official Journal of the European Communities

C 289/35

Action brought on 25 September 2002 by Miguel Vicente-
Núñez against Commission of the European Communities

(Case T-294/02)

(2002/C 289/64)

(Language of the case: French)

has or will have received since 1 April 2000 as pay and
subsequently as
in view of his
retirement pension,
classification as Grade A5/3+1 on 1 April 2000, and the
total of the amounts which he should have received, on
the same grounds and during the same period had he
been reclassified in Grade A5/2+6 on 1 April 1998,
minus, if appropriate, the compensation already paid to
the applicant for the same reason;

In any event:

— order

the Commission to pay to the

applicant
EUR 5 000 as compensation for the non-material damage
caused to him by the unlawful nature of the contested
decisions;

An action against the Commission of the European Com-
mission was brought before the Court of First Instance of the
European Communities on 25 September 2002 by Miguel
Vicente-Núñez, residing in Krainem (Brussels), represented by
Marc-Albert Lucas, lawyer.

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant claims that the Court should:

— annul the decision of 17 October 2001 of the appointing
authority to promote the applicant to Grade A5/3+1 with
effect from 1 April 2000 rather than to Grade A5/2+6
on 1 April 1998;

— order the Commission to pay to the applicant by way of
compensation for the harm done to his career arising
from the contested decisions an amount corresponding
to the difference between the total remuneration received
since 1 April 2000 until the judgment in the present case
is delivered and the total remuneration which he should
have received during the same period if he had been
reclassified to Grade A5/2+6 on 1 April 1998, minus, if
appropriate, the compensation already paid to the appli-
cant for the same reason;

— order the Commission to pay to the applicant default
interest at the rate of 8 % per annum on that amount,
with effect from the date on which that remuneration
should have been paid to him until full payment.

In the alternative:

— annul the decision of 11 June 2002 of the appointing
authority following the administrative complaint of
30 January 2002 inasmuch as it grants the applicant
compensation of EUR 1 000 for non-material damage
and harm to his career which leaves in place its decision
of 17 October 2001 to promote him to Grade A5/3+1
on 1 April 2000 rather than to Grade A5/2+6 on 1 April
1998;

— order the Commission to pay to the applicant, by way of
making good the non-material damage caused to him as
a result of the contested decisions, an amount correspond-
ing to the difference between the total of the amounts he

The applicant in the present case, like the applicant in Case
T-10/99 (1), challenges the manner in which, in compliance
with the judgment delivered in that case, the appointing
authority finally decided to appoint him to Grade A 5, Step 3,
while fixing his period of service in that grade by reference to
1 March 2000 rather than to 1 April 1998.

In support of his arguments, the applicant puts forward a
single plea in law in which he alleges breach of the obligation
to comply with the aforementioned judgment and of the
principles of equal treatment and that officials should have
reasonable career prospects,
the contested
decision leaves in place, for the period between 1 April 1998
and 1 March 2000, certain unlawful aspects criticised by the
Court of First Instance, by placing him in a less favourable
position than his colleagues who were promoted to Grade A 5
during the 1998 promotion procedure for promotion from
one career bracket to the next and by reducing his chances of
being promoted earlier to a higher grade.

inasmuch as

(1) T-10/99 Vicente Núñez v Commission [2000] ECR-SC I-A-47; II-

203.

Action brought on 27 September 2002 by Koninklijke
BAM NBM N.V. v Commission of the European Communi-
ties

(Case T-295/02)

(2002/C 289/65)

(Language of the case: Dutch)

An action against Commission of the European Communities
was brought before the Court of First Instance of the European

C 289/36

EN

Official Journal of the European Communities

23.11.2002

Communities on 27 September 2002 by Koninklijke BAM
NBM N.V., whose registered office is in the Hague (Nether-
lands), represented by E.H. Pijnacker Hordijk and G.W.H. Cor-
stens.

The applicant also claims infringement of Article 9(3) of
Regulation No 4064/89 concerning the market for the pro-
duction of asphalt. The Commission omitted to indicate the
specific regional markets on which there would be negative
consequences for competition.

The applicant claims that the Court should:

1. Annul the Commission Decision of 3 September 2002
pursuant to Article 9(3) of Regulation (EEC) No 4064/89
in Case COMP/M.2881-BAM NMB/HBG;

2. Order the Commission to pay the costs.

Plea in law and main arguments

Furthermore, the applicant claims infringement of the principle
of the right to a fair hearing and the obligation to state
reasons. The Commission bases its finding concerning the
consequences of the concentration for the civil and utility
construction sectors, on the one hand, and the earth-moving,
hydraulic engineering and road construction sectors, on the
other, on the results of a survey. The applicant states that it
was never able to inspect that information and was unable to
comment on it.

Finally, the applicant claims infringement of the obligation to
state reasons with regard to the markets for the production of
asphalt.

The applicant notified the Commission of its planned acqui-
sition of the Hollandsche Beton Group N.V. Both undertakings
are active in the construction sector and in related markets.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ 1989
L 395, p. 1) (corrected version published in OJ 1990 L 257,
p. 13).

By the contested decision, the Commission, at the request of
the Netherlands Minister for economic affairs, referred the case
to the Netherlands competition authority as regards the
construction sector and the regional asphalt markets. As
regards the other activities of the applicant and of Hollandsche
Beton Group, the planned concentration was approved by a
Commission decision of
to
the
Article 6(1)(b) of Regulation No 4064/89 (1).

same date pursuant

In support of its application the applicant submits, first, that
in its referral decision the Commission made a manifestly
incorrect appraisal of the facts. According to the applicant, the
Commission errs in finding that the applicant and Hollandsche
Beton Group N.V. have a joint market share of more than
25 % on the relevant market for major works.

The applicant also submits that the contested decision infringes
Article 9(3) of Regulation No 4064/89. The Commission
misappraises the effects of the concentration on the civil and
utility construction sectors, on the one hand, and the earth-
moving, hydraulic engineering and road construction sectors
on the other hand. In particular the market shares of the
applicant and of Hollandsche Beton Group for major projects
in those sectors are much smaller than the Commission
concludes. Projects of that kind are implemented by various
undertakings which work together on one project. According
to the applicant, the Commission erred in completely attribu-
ting to the applicant and Hollandsche Beton Group the market
shares of those groups of undertakings in which they took
part, without taking into account
the other undertakings
cooperating with them.

Action brought on 27 September 2002 by Lidl Stiftung &
Co. KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-296/02)

(2002/C 289/66)

(Language of the case: to be determined pursuant to Article 131(2)
of the Rules of Procedure — Language in which the application has
been drafted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
27 September 2002 by Lidl Stiftung & Co. KG, of Neckarsulm
(Germany), represented by Peter Gross, Rechtsanwalt.

A further party to the proceedings before the Board of Appeal
was REWE-Zentral AG, of Cologne (Germany).