Case T-289/03: Action brought on 19 August 2003 by British United Provident Association Limited, BUPA Insurance Limited and BUPA Ireland Limited against Commission of the European Communities
Date: 2003-11-01
Institutions: Court of First Instance
Subjects: European Commission, Ireland, action for annulment (EU), health insurance, private insurance, provision of services

C 264/32

EN

Official Journal of the European Union

1.11.2003

The applicant further claims that the contested regulation
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to the
nature of the applicable measure but it went further than that.
In addition the amount of the duty was set entirely arbitrarily.
Regulation (EC) No 384/96 does not provide for the possibility
of using the results of reviews that are over 12 years old. It
does not allow the results of reviews that are older than five
years to be used.

Finally no specific dumping margin was laid down in the final
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.

(1) OJ L 143, p. 1.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ L 56, p. 1), most recently
amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).

Action brought on 19 August 2003 by British United
Provident Association Limited, BUPA Insurance Limited
and BUPA Ireland Limited against Commission of the
European Communities

(Case T-289/03)

(2003/C 264/55)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 19 August 2003 by British United
Provident Association Limited, London, (United Kingdom) and
BUPA Insurance Limited, London,
(United Kingdom) and
BUPA Ireland Limited , Dublin, (Ireland), all represented by
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer
and Mr J. Burke, Barrister.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant provides private medical insurance in Ireland. In
the contested decision, the Commission decided not to raise
any objections
to the risk equalisation scheme to be
implemented by the Irish authorities in the Irish market for
private medical
insurance. According to the applicant, the
effect of this scheme is to grant a subsidy to the dominant
provider of medical insurance, the Voluntary Health Insurance
Board; the subsidy would be funded by a charge to be imposed
on the applicant.

In support of its application, the applicant invokes, firstly, the
misapplication by the Commission of Article 87(1) EC. The
applicant submits that the Commission considered that the
risk equalisation scheme did, in principle, satisfy the conditions
for aid under Article 87(1) EC. However, it decided that the
scheme compensated the Voluntary Health Insurance Board
for public service obligations.

Justice (1). The applicant states that

According to the applicant, the Commission misapplied the
public service compensation test as set out in the jurisprudence
of the Court of
the
obligations identified by the Commission were the require-
ments for private medical insurers in Ireland to follow the
principles of open enrolment, community rating, minimum
benefits and lifetime cover. These are, according to the
applicant, not to be considered as public service obligations or
obligations following the operation of services of general
economic interest. These obligations would rather represent
general regulation of the private medical insurance market,
applicable to all insurers. The applicant furthermore submits
that the Commission did not consider whether these obli-
gations imposed a financial burden on the Voluntary Health
Insurance Board.

The applicant states that the Commission’s alternative basis
for the contested decision was that the risk equalisation scheme
could be approved under Article 86(2) EC. The applicant
submits that the Commission failed to ensure that the con-
ditions for approval under that article were satisfied. According
to the applicant, the relevant private medical insurance obli-
gations were not services of general economic interest. The
applicant furthermore submits that the Commission’s argu-
ments on necessity and proportionality were based on both
errors of reasoning and manifest errors of fact. The applicant
also claims that the Commission did not consider whether the
scheme would affect the development of trade contrary to the
interests of the Community.

— annul

the Commission decision C(2003)1322 fin of

13 May 2003;

— order that the Commission pays the applicant’s costs.

The applicant also submits that the Commission erred in
failing to consider whether the risk equalisation scheme
infringed Article 82 EC taken together with Article 86(1) EC,
Articles 43 and 49 EC and Council Directive 92/49/EEC (2).

1.11.2003

EN

Official Journal of the European Union

C 264/33

The applicant finally submits that the Commission should
have initiated a
investigation procedure under
Article 88(2) EC given the complexity of the arguments in fact
and law raised by the applicant and the economic analysis
required.

formal

(1) Case C-53/00 Ferring [2001] ECR I-9067 and Case C-280/00
Altmark Trans GmbH and Regierungspräsidium Magdeburg, not
yet published in the ECR.

(2) Council Directive 92/49/EEC of 18 June 1992 on the coordination
of laws, regulations and administrative provisions relating to
direct insurance other than life assurance and amending Directives
73/239/EEC and 88/357/EEC (third non-life insurance Directive)
(OJ L 228, p. 1).

— from the failure to examine an unknown number of
candidates in the language which they had declared to be
their ‘principal’ language;

— from the failure to examine the applicant in the third
language declared by him, and also from the (in his
the candidates as
submission) different
regards examination of the third language and any further
languages known by them;

treatment of

— from the appointment of further members of the selection
board in addition to those initially appointed, after
notification of the names of the candidates admitted to
the oral examination, from the fact that the selection
board included two members appointed by the Staff
Committee instead of one, and from the alteration in the
composition of the board when the oral examinations
were conducted.

Action brought on 18 August 2003 by Georgios Pantoulis
against the Commission of the European Communities

(Case T-290/03)

(2003/C 264/56)

(Language of the case: Greek)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 August 2003 by Georgios
Pantoulis, resident in Brussels (Belgium), represented by Kharis-
sios Tagaras, lawyer.

The applicant claims that the Court should:

— annul the decision of the selection board for Competition
COM/A/6/01 — section 02 not to include him on the list
of successful candidates in that competition and the
defendant’s reply of 10 June 2003 by which it rejected his
complaint under no R/55/2003, lodged on 10 February
2003, requesting revocation of the selection board;

— order the defendant to pay his costs.

Pleas in law and main arguments

In support of his action, the applicant pleads breaches of the
competition notice, of the principles and rules governing the
functioning of selection boards, of the principle of equal
treatment and of the Staff Regulations (Annex III). In his
submission those breaches have arisen:

Action brought on 20 August 2003 by Messe Berlin
the Office for Harmonisation in the
GmbH against

Internal Market (Trade Marks and Designs)

(Case T-292/03)

(2003/C 264/57)

(Language of the case: 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
20 August 2003 by Messe Berlin GmbH, Berlin, represented
by R. Lange and E. Schalast, lawyers.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 5 June 2003 (Case No R 646/
2001-2);

— order the defendant Office to pay the costs of the

proceedings.

Pleas in law and main arguments

Community trade mark
sought:

The word mark ‘HOMETECH’ —
application No 1985118