Case T-139/03: Action brought on 28 April 2003 by Nuova Agricast S.r.l. against the Commission of the European Communities
Date: 2003-06-21
Institutions: Court of First Instance
Subjects: European Commission, State aid, access to information, action for annulment (EU), consultation of information, control of State aid, document, equal treatment, offence

21.6.2003

EN

Official Journal of the European Union

C 146/43

Pleas in law and main arguments

Action brought on 28 April 2003 by Nuova Agricast S.r.l.
against the Commission of the European Communities

In support of her action, the applicant pleads failure to state
reasons, breach of Article 45 of the Staff Regulations and
infringement of the principle of non-discrimination, manifest
errors of assessment, breach of the duty of care and infringe-
ment of the principle of sound administration, infringement
of the principle of equality of opportunity and, finally, misuse
of powers.

(Case T-139/03)

(2003/C 146/78)

(Language of the case: Italian)

Action brought on 22 April 2003 by Robert Charles
Schochaert against the Council of the European Union

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 April 2003 by Nuova Agricast
S.r.l., represented by Michele Arcangelo Calabrese, avvocato.

(Case T-136/03)

(2003/C 146/77)

(Language of the case: French)

The applicant claims that the Court should:

— Annul the contested measures;

— Order the European Commission to pay the costs.

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 22 April 2003 by Robert Charles Schochaert,
residing in Brussels, represented by Jean A. Martin, avocat.

Pleas in law and main arguments

The applicant claims that the Court should:

— order the Council to pay to the applicant EUR 225 702,94

by way of compensation, and order it to pay the costs.

Pleas in law and main arguments

The applicant, a former Council official, seeks by way of the
present action to recover compensation in respect of the
damage which he claims to have suffered through the defend-
ant’s refusal to promote him to Grade B 1 during the course of
promotions from 1978 to 2000.

The applicant contends that the defendant has refused, since
1978, to promote him on the ground that his duties did not
involve the exercise of responsibilities justifying promotion
vis-à-vis other candidates for such promotion, this being a
ground which, in the applicant’s view, is unlawful and amounts
to a misuse of power for which the Council must incur
liability.

The applicant further alleges that he has been the victim of
exclusion and non-physical harassment by a number of his
hierarchical superiors.

By its action, the applicant company is challenging:

1.

2.

3.

the Commission’s letter *D/50721, COMP/G1 D(03)142/
PI/cpb dated 3 February 2003 (concerning consultations
with the authorities of the Member State which had
drawn up the documents);

Commission document SG.B.2/MM D(2003) sent by fax
on 14 March 2003;

the Commission’s
cpb D(03) dated 12 March 2003.

letter

*D/51652, COMP/G1/PI/

In support of its claims, the applicant submits as follows:

— by consulting the authorities of the Member State which
had drawn up the documents requested, and in so doing
even though it was already clear to it that the documents
in issue were excluded from the right of access as being
‘covered’ by the exception ‘inspections and investigations’,
the Commission breached the procedural guarantees
conferred on individuals by Article 4(4) of Regulation
(EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission docu-
ments (OJ 2001 L 145 of 31 May 2001, p. 43) and the
similarly-worded Article 5(2) of the relevant updating
provisions. The Commission thus infringed its own

C 146/44

EN

Official Journal of the European Union

21.6.2003

‘Code of Good Administrative Behaviour’, specifically the
section on ‘Consistency’ under the heading of ‘General
Principles of Good Administration’. The illegality of the
consultation also gives rise, in the applicant’s view, to the
illegality of the partial refusal of access, which is specifi-
cally based on the reply by which the Italian authorities
refused disclosure;

— the applicant further alleges discriminatory treatment vis-
à-vis a separate request (made by another individual) for
access to documents coming within the same category as
those to which the applicant is seeking access;

— the applicant also submits that, in particular by treating
as adequate the ostensible reasoning of the senior official
who signed the documents, who refers to a measure of a
national court applying national
legislation which is
generally recognised as being less transparent than the
provisions of Regulation (EC) No 1049/2001, the Com-
mission committed a manifest error of assessment and
breached at the same time Article 4(5) of Regulation (EC)
No 1049/2001, the principle of sound administration
and the obligation to ensure that decisions taken by the
institutions are adequately reasoned;

— finally, the applicant submits that there has been a breach
of its rights of defence in so far as access to the documents
in question is the only avenue open to it to assess the
legality of the decision authorising a State aid scheme.

Action brought on 28 April 2003 by Fost Plus VZW
against the Commission of the European Communities

(Case T-142/03)

(2003/C 146/79)

(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 28 April 2003 by Fost Plus VZW,
having its registered office in Brussels, represented by Peter
Wytinck, Jan Bouckaert and Hendrik Viane, advocaten.

The applicant claims that the Court should:

1. Annul Article 1 of the Decision;

2. Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision
2003/82/EC of 29 January 2003 (1). The contested decision
authorises Belgium to impose within its territory higher
recycling and recovery targets than those laid down in Directive
94/62/EC (2).

The applicant is a non-profit-making association which is the
only organisation recognised in Belgium for the purpose of
collecting, recycling and valorising domestic packaging waste.
It assumes responsibility for accepting domestic packaging
waste from those who are affiliated to it. Members of the
applicant represent the producers and importers of packaging,
packaged products or packaging materials, distribution com-
panies and trade federations.

The applicant first of all alleges that there has been a breach of
Article 253 EC and of Article 6(6) of Directive 94/62/EC. The
applicant claims that the Commission, when adopting the
contested decision, based itself on inaccurate or incomplete
facts. By so doing, it argues, the Commission committed errors
of fact in its assessment of the criteria set out in Article 6(6) of
Directive 94/62/EC.

The applicant also claims that there has been a breach of
Article 253 EC. The Commission has, in its view, failed to set
out sufficient reasons as to why Belgium has, within its
territory, adequate recycling capacity for metal packaging,
non-ferrous metals, and the mechanical recycling of plastics,
paper and cardboard. The applicant further contends that the
Commission fails in its decision to examine the effect which
an increase in the minimum recycling targets may have for
each type of packaging material.

The applicant concludes by submitting that there has been an
infringement of the general duty of care and a breach of
Directive 94/62/EC inasmuch as the Commission assumed
certain matters, such as incineration with energy recovery and
available capacity, to be factually valid without examining
whether this was possible or in accordance with Directive 94/
62/EC.

(1) Decision 2003/82/EC: Commission Decision of 29 January 2003
confirming measures notified by Belgium pursuant to Article 6(6)
of Directive 94/62/EC of the European Parliament and the Council
on packaging and packaging waste (Text with EEA relevance)
(notified under document number C(2003) 361) (OJ 2003 L 31,
p. 32).

(2) Directive 94/62/EC of the European Parliament and the Council
of 20 December 1994 on packaging and packaging waste (OJ
1994 L 365, p. 10).