Case T-320/02: Action brought on 22 October 2002 by Monika Esch-Leonhardt, Tillmann Frommhold and Emmanuel Larue against the European Central Bank
Date: 2002-12-21
Institutions: Court of First Instance
Subjects: European Central Bank, action for annulment (EU), data transmission, personal data, right to information, trade union

C 323/38

EN

Official Journal of the European Communities

21.12.2002

In support of their application, the applicants allege infringe-
ment of Article 3(2) of Regulation No 3286/94 (EC). According
to the applicants, the Commission misassessed the definition
of ‘obstacle to trade’.

on 22 October 2002 by Monika Esch-Leonhardt, Frankfurt
(Germany), Tillmann Frommhold, Karben (Germany), and
Emmanuel Larue, Frankfurt (Germany), represented by B. Kart-
haus, C. Roth and T. Raab-Rhein (lawyers), with an address for
service in Luxembourg.

The applicants claim, next, that that misassessment necessarily
implies infringement of Article 2(4) of Regulation No 3286/
94 (EC) as regards assessment of the adverse trade effects
arising from the United States measures.

The applicants take the view, moreover, that the Commission
infringed, in its examination of the adverse trade effects, the
obligation to have regard to the provisions, principles or
practice which govern the right of action under relevant
international rules, contained in Article 10(5) of Regulation
No 3286/94 (EC).

The applicants further claim that the Commission, when
deciding to terminate the procedure, restricted the concept of
interests of the Community to the interests of the complainant
alone, contrary to Article 10 of Regulation No 3286/94 (EC).

The applicants also allege breach of the obligation to provide
a statement of reasons, both as regards the analysis of the
obstacles to trade and the interests of
the Community,
infringement of Article 2(4) and Article 11(1) of Regulation
No 3286/94 (EC) and a manifest error of assessment of
the facts. Finally, the applicants allege infringement by the
Commission of the rights of the defence and breach of the
duty to exercise due care.

The applicants claims that the Court should:

1.

2.

3.

4.

5.

declare the inclusion of the Director of Personnel’s letter
of 4 December 2001 in the applicants’ personal files to
be of no legal effect;

in the alternative, declare void the defendant’s refusal to
remove the Director of Personnel’s letter of 4 December
2001 from the applicants’ personal files;

declare void the defendant’s refusal to number the pages
of the personal files in sequence;

order the defendant to pay the applicants damages of
EUR 1 by way of compensation for non-pecuniary loss;

as an alternative to claims 1 to 3, order the defendant to
remove the Director of Personnel’s letter of 4 December
2001 from the personal files;

6.

order the defendant to pay the costs of the proceedings.

( 1) Council Regulation (EC) No 3286/94 of 22 December 1994
laying down Community procedures in the field of the common
commercial policy in order to ensure the exercise of the Com-
munity’s rights under international trade rules.

Pleas in law and main arguments

Action brought on 22 October 2002 by Monika Esch-
Leonhardt, Tillmann Frommhold and Emmanuel Larue
against the European Central Bank

(Case T-320/02)

(2002/C 323/63)

(Language of the case: German)

The applicants, employees of the European Central Bank,
complain that a document sent to them by the defendant
warning them to refrain in the future from circulating infor-
mation about the union via the defendant’s internal e-mail
system was included in their respective personal files.

The applicants regard the warning itself, and in particular the
storage thereof, as a breach of their right to determine what
information is placed on the file and an infringement of their
right to carry out activities connected with the union. In
addition, the measure amounts to discrimination on account
of their union activities.

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

The applicants also submit that their rights have been infringed
in that the pages of their personal files have not been numbered
in sequence, with the result that it is not possible to check
which documents are placed on, or removed from, those files.

21.12.2002

EN

Official Journal of the European Communities

C 323/39

That,
like the storage of data giving information about
membership of the union, infringes the provisions of Regu-
lation (EC) No 45/2001 (1).

Pleas and main arguments

( 1) Regulation (EC) No 45/2001 of the European Parliament and of
the Council of 18 December 2000 on the protection of individuals
with regard to the processing of personal data by the Community
institutions and bodies and on the free movement of such data
(OJ 2001 L 8, p. 1).

Action brought on 24 October 2002 by Kotug Inter-
national BV, Sleepdienst Adriaan Kooren BV and K&K
International BV against the Commission of the European
Communities

(Case T-326/02)

(2002/C 323/64)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 October 2002 by Kotug International BV,
Sleepdienst Adriaan Kooren BV and K&K International BV,
established in Rotterdam, represented by T.R. Ottervanger,
with an address for service in Luxembourg.

The applicants claim that the Court of First Instance should:

1.

2.

Primarily, annul Commission Decision C(2002) 2158 of
19 June 2002 concerning State aid by the Netherlands in
favour of the activities of Netherlands tugboats in sea
harbours and on inland waterways of the Community;

In the alternative, annul Articles 2 and 3 of the Com-
mission’s contested decision in which the Commission
requires the Netherlands Government to adopt all necess-
ary measures in order to recover aid from the recipients
— with the exception of aid paid before 12 September
1990;

3. Order the Commission to pay the costs.

The applicants benefit from fiscal arrangements and the
tonnage charge introduced by the Netherlands in favour of,
inter alia, vessels intended for towing and assistance at sea. In
the contested decision the Commission considers that these
matters constitute new State aid for tugboat activities princi-
pally carried on in and around the harbours of the Community
and on inland waterways within the Community and not
principally at sea. The Commission is at the same time seeking
recovery by the Netherlands authority of that aid.

The applicants submit that the Commission is in breach of the
EC Treaty and Regulation No 659/1999 (1) by classifying the
matters concerned as new State aid. According to the appli-
cants the provision made in regard to those matters constitutes
existing State aid authorised by the Commission.

the interpretation of

Thus, there is no question of a change in the existing aid.
According to the Commission,
the
Netherlands law has changed over the years. Under it tugboats
were eligible for aid on the basis of technical criteria relating
to the vessels rather than on the basis of the place where the
activities are carried on. According to the applicants, that was
however clear from the legislation notified by the Netherlands
authorities under which a technical and qualitative criterion is
applied rather than a geographical one. That interpretation of
the provision made in regard to the grant of the aid have
accordingly not changed.

The applicants further allege that the Commission did not
follow the correct procedure. According to the applicants, the
Commission, upon receipt of supplementary information, did
not issue a recommendation for the adoption of appropriate
measures. Nor did the Commission review the aid under
Article 9 of Regulation No 659/1999. Nor, the applicants
submit, are the requirements of that article satisfied since there
is no question of incorrect information. Moreover, according
to the applicants, the Commission failed to demonstrate that
the provision made for the matters concerned is not covered
by the aid measures approved by it previously.

Accordingly, the applicants submit that the contested decision
infringes Article 87(3) of the EC Treaty. According to the
applicants the Commission is acting incorrectly in declaring
the matters concerned incompatible with the common market.
The applicants allege that towing services provided by sea
irrespective of where those
tugboats to sea-going vessels,
activities are carried on, come within the scope of
the
Community guidelines on State aid for maritime transport (2).