Case T-95/03: Action brought on 8 March 2003 by the Asociación de Empresarios de Estaciones de Servicio de la Comunidad Autónoma de Madrid and the Federación Catalana de Estaciones de Servicio against the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition, distributive trades, goods and services, petroleum product, public contract, supermarket

10.5.2003

EN

Official Journal of the European Union

C 112/43

The applicant claims that the Court should:

The applicant claims that the Court should:

— principally, annul pursuant to Article 230 EC the decision
of the Commission of the European Communities of
17 December 2002 C(2002) 5087 final, by which the
applicant was ordered to pay a fine of EUR 3 750 000,00
at the end of a proceeding pursuant to Article 65 of the
ECSC Treaty (Case COMP/37.956 — Round bar steel for
reinforced concrete);

— failing that, annul in part Decision C(2002) 5087 final,

with a consequential reduction of the fine,

— in any event, order the Commission of the European

Communities to pay the costs.

— annul the Commission Decision of 13 November 2002
in which it was decided not to raise any objections to
the Disposición Transitoria Primera (First Transitional
Provision) of Real Decreto Ley 6/2000 de Medidas
Urgentes de Intensificación de la Competencia en Merca-
dos de Bienes y Servicios (Royal Decree Law on Emer-
gency Measures to Promote Competition in Markets for
Goods and Services);

— order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

This action is directed against the same decision as that
challenged in Case T-27/03 (S.P. v Commission). The pleas in
law and main arguments are similar to those put forward in
that case. In addition to breach of rights of the defence, in that
the communication of the Commission’s complaints did not
take into consideration whether there was any effect on intra-
Community trade, the applicant alleges that the Commission
made an incorrect assessment of the length of its participation
in the agreement, decision or concerted practice, and of the
base prices, the prices of the ‘extra’ in terms of dimension and
the limitation of production and/or sales.

Action brought on 8 March 2003 by the Asociación de
Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de
Estaciones de Servicio against the Commission of the
European Communities

(Case T-95/03)

(2003/C 112/81)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 March 2003 by the Asociación
de Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de Estacion-
es de Servicio, both established in Madrid, represented by José
María Jiménez Laiglesia and Marta Delgado Echevarría.

The applicants in the present action, which represent almost
all the existing service stations in Spain, are challenging the
Commission’s failure to take action in respect of the exemption
of certain hypermarkets from the requirement to obtain
permission from the authorities to vary the planning restric-
tions on building and usage, an exemption introduced into
Spanish law by the First Transitional Provision of Royal Decree
Law No 6/2000 of 23 June on Emergency Measures to
Promote Competition in Markets for Goods and Services. The
stated objective of that exemption, which the applicants
consider amounts to aid, was to facilitate the establishment of
service stations on the premises of those hypermarkets, thereby
promoting increased competition in the market for the retail
supply of petroleum products in Spain.

The Decision at issue in this action confirms that the disputed
measure does not amount to State aid, since it does not entail
a transfer of State resources.

In support of their claims, the applicants submit:

— that the measure at issue increases the value of the
beneficiaries’ property is immediately and without their
providing consideration and entails an exceptional
reclassification of the land on which the hypermarkets are
located, abolishes the charges, costs and administrative
procedures which are necessary under normal circum-
stances if a service station is to be opened and also
entails the State’s surrender of its right to receive the
consideration in money or money’s worth which would
normally be applicable.

— Manifest error of assessment on the Commission’s part in
that it carried out an incomplete and incorrect analysis of
the national planning legislation, which vitiates the
Decision as regards the transfer of State resources and the
ensuing interpretation of Article 87(1) EC.

C 112/44

EN

Official Journal of the European Union

10.5.2003

— Manifest error of assessment as regards the Community
case-law and rules on the requirement laid down in
Article 87(1) of the Treaty that aid should be granted by
the State or through State resources. It is asserted in this
respect that nothing in Community case-law or in the
legislation on State aid suggests that it is necessary that
the resources to which the domestic authorities waive
their right should be formally recognised in the State
budget.

— Breach of the principle of sound administration, since the
Commission did not raise objections to the disputed
measure or initiate the formal investigation procedure
laid down in Article 88(2) EC.

— order the Commission to pay him by way of compen-
sation for non-material damage provisionally assessed, ex
aequo et bono, at EUR 10 000;

— order the Commission to pay the applicant compensation

for damage to his career, provisionally, of EUR 1;

— order the Commission to reimburse the expenses incurred
by the applicant in preparing his defence in the context
of the inquiry and his administrative complaint against
the decision of 17 May 2002;

— order the Commission to pay the costs.

The applicants also allege that the Commission failed to
comply with the obligation to state reasons.

Pleas in law and main arguments

The applicant is an official of the Commission of the European
Communities. Between 1993 and 1997, he assisted his
immediate superior who was a member of the Executive
Committee of
the Institute for European-Latin American
Relations (IRELA). When an internal inquiry was opened by
the European Anti-fraud Office (OLAF) into the IRELA, the
applicant was informed that it was possible that he too was
implicated in financial irregularities. The applicant asked the
director of OLAF to find out as soon as possible whether there
was any possible conflict of interest with regard to one of the
investigators and if appropriate to take the necessary steps to
guarantee the objectivity of the inquiry. By the contested
the director of OLAF decided to remove from
decision,
the inquiry the investigator concerned but
left standing
investigative measures and decisions proposed and adopted by
him or to which he contributed.

In support of his claims, the applicant relies on four pleas in
law:

— Infringement of Article 25(2) of the Staff Regulations
inasmuch as the contested decision was not notified to
him and provides an inadequate statement of reasons;

— Breach of the duty to provide evidence of the proper

conduct of the inquiry;

— Manifest error of assessment in that the reason for the
contested decision appears to be that the investigator
concerned did not participate either in the monitoring or
the handling of the case in question;

— Breach of the principle that inquiries should be fair and

impartial.

Action brought on 10 March 2003 by Manel Camós Grau
against the Commission of the European Communities

(Case T-96/03)

(2003/C 112/82)

(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 10 March 2003 by Manel Camós
Grau, residing in Brussels, represented by Marc-Albert Lucas,
lawyer.

The applicant claims that the Court should:

— annul the OLAF decision of 17 May 2002 removing one
of the investigators from the inquiry by the Office into
the IRELA inasmuch as it leaves standing investigative
measures and decisions on its conduct adopted by the
investigator or to which he contributed, without re-
examining or annulling them or requiring new inquiries;

— annul the OLAF decision of 29 November 2002 implicitly
rejecting the applicant’s administrative complaint of
29 July 2002 against the decision of 17 May 2002;