Case T-24/03: Action brought on 30 January 2003 by Antonio Aresu against the Commission of the European Communities
Date: 2003-03-22
Institutions: Court of First Instance
Subjects: European Commissioner, European official, action for annulment (EU), reassignment, regulations for civil servants

C 70/30

EN

Official Journal of the European Union

22.3.2003

Pleas in law and main arguments

The applicant did not receive a number of the measures listed.
The demand for repayment of aid which was not granted thus
patently infringes substantive law.

The applicant is a porcelain-manufacturing undertaking based
in Kahla, Thüringen (Thuringia). As the investor which made
the highest offer, it acquired machinery, plant and property
from the receiver responsible for administering the assets
of Kahla Porzellan GmbH.
the
Commission classified a number of measures in favour of
Kahla Porzellan GmbH and the applicant as constituting aid
and declared them to be incompatible with the Common
Market.

In its contested decision,

By its action, the applicant takes issue in particular with the
order for repayment of the investment subsidy of 2,5 million
DEM, the order for repayment of allegedly ‘de minimis’ aid
payments and that for repayment of grants made for the
job-creation measures under
implementation of
Para-
graph 249h of
the Arbeitsförderungsgesetz (Law on the
Promotion of Employment) (‘AFG’). In its action it alleges
infringement of the EC Treaty, breach of fundamental prin-
ciples of Community law and manifest errors of fact and of
appraisal.

The applicant contends that the order for repayment of
the investment subsidy and of the grants paid out under
Paragraph 249h AFG is contrary to the EC Treaty. The
investment subsidy was granted from an approved programme
and, with regard to measures under Paragraph 249h AFG, the
Commission expressly determined in 1994 that these did not
constitute aid. In both cases, therefore, the rules applicable to
existing aid applied. In its decision, however, the Commission
went beyond an examination of whether the particular con-
ditions of the programmes had been complied with and
retroactively applied more stringent conditions to those pro-
grammes than were contained in the programmes or in the
conditions of approval which the Commission had imposed.
The Commission is thereby in breach of Articles 87 EC and 88
EC and in infringement of the principle of legal certainty.

The applicant argues further that the Commission has infringed
the fundamental principle of the protection of legitimate
expectations by failing to take account of the fact that the
publication by the Commission itself in the Official Journal of
the EC of its formal approval of the programme for guarantee-
ing investment and the rules in Paragraph 249h AFG gives no
indication of the more stringent restrictions which it has
applied within the context of the contested decision. The
applicant was thus entitled to rely on the expectation that both
programmes would be applied in the form as published and
approved by the Commission. The demand for repayment,
which runs counter to this expectation, is patently unlawful.

The applicant submits further that the Commission’s findings
contain fundamental errors of fact and a number of manifest
errors of appraisal. First, there is an error of appraisal in the
classification of the applicant as an undertaking in difficulty.
The demand for repayment of the ‘de minimis’ aid payments
also contains manifest and significant errors as to the facts.

Action brought on 30 January 2003 by Antonio Aresu
against the Commission of the European Communities

(Case T-24/03)

(2003/C 70/48)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 January 2003 by Antonio Aresu rep-
resented by Sergio Diana, acting as Agent, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— annul the following two decisions:

(a)

the express decision of the appointing authority
of 29 August 2002 recorded in the note from
Mr T. Lennon D(2002)687 of 2 September 2002,
received on 4 September 2002, announcing the
rejection of the applicant’s application for vacant
post COM/059/02 and the awarding of that post to
Mr M. Scannell;

(b)

the implied decision of the appointing authority of
17 January 2003 rejecting the complaint made by
the applicant on 17 September 2002 against that
decision.

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant
in this case contests the rejection of his
application for a post as head of unit in the Health and
Consumer Protection Directorate-General.

In support of his claims the applicant submits that the
contested decisions stated no grounds, in breach of the second
paragraph of Article 25 of the Staff Regulations.