Case T-329/03: Action brought on 25 September 2003 by Ricci Fabio Andrés against the Commission of the European Communities
Date: 2003-11-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), assistant, competition (EU), recruitment

15.11.2003

EN

Official Journal of the European Union

C 275/53

Pleas in law and main arguments

Action brought on 25 September 2003 by Ricci Fabio
Andrés against the Commission of the European Com-
munities

The contested decision concerns an agreement between the
applicant, O2, and T-Mobile Deutschland GmbH. The agree-
ment provides for infrastructure sharing and national roaming
for the third generation of mobile telecommunications in the
German market.

The agreement was notified to the Commission and O2 and T-
Mobile requested negative clearance under Article 81(1) EC
and Article 53(1) EEA, or in the alternative for an exemption
under Article 81(3) EC and Article 53(3) EEA. Negative
clearance was granted in respect of the infrastructure sharing
provisions. The Commission found however that the national
roaming provisions restricted competition, but granted indi-
vidual exemptions for these provisions under Article 81(3) Ec
and Article 53(3) EEA for specified periods of time.

(Case T-329/03)

(2003/C 275/89)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 September 2003 by Ricci Fabio
Andrés, represented by Massimo Condinanzi, avvocato.

The applicant claims that the Court should:

The applicant seeks the annulment of the specific provisions
of the decision that address the restrictions of competition
alleged to flow from national roaming, namely article 2
and 3(a) of the contested decision. The applicant submits that
the Commission’s reasoning errs in law and is insufficient.

1. Annul the decision rejecting the applicant’s candidature
in the competition COMR/B/04/2000 — Radiation pro-
tection, notified to the applicant by letter of 28 November
2002, no. B01-HR/RRA/BDU/D (2002) 14307, from the
Director of DG JRC, Mr Jean-Pierre Vandersteen;

Firstly, the applicant claims that there is no restriction on
competition within the meaning of Article 81(1) EC or
Article 53(1) EEA. According to the applicant, the decision
does not rest on an analysis of the actual effects of the
agreement on competition. The Commission would simply
rely on the assumption that the purchase by one network
operator of network services from another operator will
restrict competition between the two on coverage, quality,
transmission rates or wholesale prices. The applicant submits
this assumption is contradicted by the
furthermore that
Commission’s own factual findings and by the case-law of the
Court and the practice of the Commission.

The applicant claims secondly that the alleged restrictions of
competition do not flow from an agreement within the
meaning of Article 81(1) EC or Article 53(1) EEA, but rather
result from the unilateral actions of the applicant. According
to the applicant, the agreement does not contain any provision
restricting the competition by the applicant on coverage,
quality, transmission rates and wholesale prices, and any
restriction that could arise from the agreement, would be the
result of the unilateral commercial decisions of the applicant.
The applicant therefore submits that the agreement is not the
cause of the alleged restriction on competition.

2. Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the decision contained
in the letter of 28 November 2002 of the Director of JRC
Resources in Ispra by which the applicant, who was none the
less on the reserve list for the selection procedure COMR/B/
04/2000, was notified that he did not satisfy all the necessary
requirements for recruitment, thereby excluding him from the
recruitment procedure.

In support of his pleas the applicant alleges:

— Breach of the independence and powers of the selection

board for the competition in question.

— Breach of the vacancy notice by failing to consider that it
allowed access to a Category C post. It is stated in this
regard that the vacancy notice was drawn up with
reference to access to Category C3-B5/B3 in the scientific
service. The defendant erred in stating, after the compe-
tition, that the selection procedure was for access exclus-
ively to a Category B post.

C 275/54

EN

Official Journal of the European Union

15.11.2003

— Breach of the vacancy notice in that the Commission, in
disregard of the decision made by the selection board,
erred in its assessment of the applicant’s professional
qualifications, which perfectly matched the requirements
set out in the vacancy notice and qualified him for
admission also to a Category B post.

— Breach of the principle of legitimate expectations and of

the principles of sound administration.

Removal from the register of Case T-58/02 (1)

(2003/C 275/91)

(Language of the Case: English)

By order of 15 July 2003 the President of the Second Chamber
of the Court of First Instance of the European Communities
ordered the removal
from the register of Case T-58/02:
Kabushiki Kaisha Kenwood v Office for Harmonisation in the
Internal Market.

Removal from the register of Case T-33/01 (1)

(1) OJ C 131 of 1.6.2002.

(2003/C 275/90)

(Language of the Case: English)

By order of 24 June 2003 the President of the Fifth Chamber
of the Court of First Instance of the European Communities
ordered the removal of the name of Kirch Media GmbH & Co
KgaA from the register of Case T-33/01: Kirch Media GmbH
& Co KgaA and Kirchmedia WM AG v Commission of the
European Communities.

(1) OJ C 134 of 5.5.2001.

Removal from the register of Case T-143/03 R (1)

(2003/C 275/92)

(Language of the Case: Dutch)

By order of 17 July 2003 the President of the Court of First
Instance of the European Communities ordered the removal
from the register of Case T-143/03: Elisabeth Saskia Smit v
Europol.

(1) OJ C 63 of 4.3.2000.