Case T-392/03: Action brought on 4 December 2003 by Regione Siciliana against the Commission of the European Communities
Date: 2004-02-07
Institutions: Court of First Instance
Subjects: European Commission, Sicily, Structural Funds, action for annulment (EU), aid system, engineering structure, fund (EU)

C 35/14

EN

Official Journal of the European Union

7.2.2004

Action brought on 27 November 2003 by Deutsche
Post AG and DHL International N.V. /S.A. against the
Commission of the European Communities

(Case T-388/03)

(2004/C 35/22)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 November 2003 by Deutsche
Post AG, Bonn (Germany), and DHL International N.V./S.A.,
Diegem (Belgium), represented by J. Sedemund and T. Lübbig,
lawyers.

The applicants claim that the Court should:

— annul

the decision of

the European Commission of

23 July 2003 (Aid No N 763/02) and

— order the defendant to pay the costs.

Pleas in law and main arguments

The action is directed against the decision of the European
Commission, adopted in a procedure pursuant to Article 88(3)
EC, not to raise any objection to the compatibility of a capital
injection of EUR 297,5 million into the Belgian postal
company La Poste,
to the exemption of La Poste from
corporation tax and from property tax on real-estate trans-
actions effected by it in connection with the public supply
mandate, to La Poste’s ability to obtain State guarantees for
loans taken out by it, to the cancellation of provision made for
pensions, to the overcompensation from which La Poste
benefited in respect of its public service tasks and to two
capital injections amounting to EUR 62 million in total which
were not notified to the Commission.

The applicants submit that the contested decision is incompat-
ible with Article 87(1) EC and Article 253 EC.

The Commission did not treat the exemption of La Poste from
corporation tax as State aid only because, from 1992 to 2002,
La Poste made net losses and thus would not have been
required to pay corporation tax even if no tax exemption had
been granted. The Commission thus failed to take account of
the fact that, as an abstract rule, the tax exemption automati-
cally grants La Poste a financial advantage over other undertak-
ings at least where it makes taxable profits, thereby enabling
the declaration requirement to be avoided.

The Commission failed, in its decision, to take account of the
fact that, despite the cancellation of a provision created to
cover its obligations to pay pensions to persons employed as
postal workers from 1972 to 1992, La Poste continues to
be permitted to retain, without consideration, the business
premises initially transferred to it by way of compensation for
creation of the provision.

the
The Commission was wrong to take the view that
possibility, laid down in statute, of obtaining State guarantees
for certain loans does not constitute aid granted to La Poste
provided that it has made no use of that facility.

The contested decision is unlawful because, when offsetting
the financial advantages granted to La Poste against the net
additional costs of the universal postal service, the Commission
failed to take account of the abovementioned measures.

The Commission offset the net additional costs of performing
the corresponding
services in the public interest against
compensation as a whole, without examining whether the
compensation was actually paid in respect of the period in
which the net additional costs in question were incurred.

Action brought on 4 December 2003 by Regione Siciliana
against the Commission of the European Communities

(Case T-392/03)

(2004/C 35/23)

(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 by Regione Siciliana, represented by
Giacomo Aiello, Avvocato dello Stato.

The applicant claims that the Court should:

— annul Order BUDG/C5/ME/jlsD(2003)358046 of 6 Octo-
ber 2003 of the Commission of the European Communi-
ties on the detailed rules for the recovery of the contri-
bution of the European Regional Development Fund
(ERDF), ERDF ‘Gibbesi Dam’ cancelled by Commission
Decision C(2002)4905 of 11 December 2002, and in
consequence order the Commission of the European
Communities to pay the costs.

7.2.2004

EN

Official Journal of the European Union

C 35/15

Pleas in law and main arguments

Action brought on 12 December 2003 by Jean-Pierre
Castets against the Commission of the European Com-
munities

Regione Siciliana has brought an action before the Court of
First Instance of the European Communities challenging Order
BUDG/C5/ME/jlsD(2003)358046 of 6 October 2003 of the
Commission of the European Communities on the detailed
rules for the recovery of the contribution of the European
Regional Development Fund (ERDF), ERDF ‘Gibbesi Dam’
cancelled
by Commission Decision C(2002)4905 of
11 December 2002 and of the acts resulting from it (1).

In support of its application Regione Siciliana alleges:

1.

2.

infringement and/or misapplication of Articles 73 and
186 of Council Regulation No 1605/2002 of 25 June
2002 (2) and of Article 83 of the implementing Com-
mission Regulation No 2342/2002 of 23 December
2002 (3), in that the contested order provided for the
recovery of the Community contribution which had been
revoked, and refused to allow Regione Siciliana to offset
the contribution against claims that it itself has on the
Commission, and therefore applied default interest to it;

infringement and misapplication of Article 24 of Council
Regulation No 4253/88 as amended by Council Regu-
lation (EEC) No 2083/93 of 20 July 1993 (4) in that the
contested order did not find that the principle of offsetting
was immediately applicable to the circumstances of this
case;

3. misuse of powers because of

inconsistency between
various acts and infringement of the principle of the
protection of legitimate expectations, in that the Com-
mission has contradicted its own earlier decisions which
were also adopted in respect of Regione Siciliana,
in
relation to the admissibility of the action seeking offset-
ting through discharge of the pecuniary obligations in
this case.

(1) Decision already contested in Case T-60/03 Regione Siciliana v

Commission (OJ 2003 C 101, p. 50).

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June
2002 on the Financial Regulation applicable to the general budget
of the European Communities (OJ 2002 L 248, p. 1).

(3) Commission Regulation (EC, Euratom) No 2342/2002 of
23 December 2002 laying down detailed rules for the implemen-
tation of Council Regulation (EC, Euratom) No 1605/2002 on the
Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 357, p. 1).

(4) Council Regulation (EEC) No 2082/93 of 20 July 1993 amending
Regulation (EEC) No 4253/88 laying down provisions for
implementing Regulation (EEC) No 2052/88 as regards coordi-
nation of the activities of the different Structural Funds between
themselves and with the operations of the European Investment
Bank and the other existing financial instruments (OJ 1993 L 193,
p. 20).

(Case T-398/03)

(2004/C 35/24)

(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 12 December 2003 by Jean-Pierre
Castets, residing in Saint Victor Des Oules (France), represented
by Grégory Crétin, lawyer.

The applicant claims that the Court should:

— Annul the decision of 4 September 2003 by which the
appointing authority rejected complaint R/311/03 made
by the applicant on 16 June 2003;

— Order the Office for administration and payment of
individual entitlements to recalculate the amount of the
invalidity pension to be paid to the applicant on the basis
of the old-age pension which would have been paid to
him at the age of 65 if he had remained in service until
that age, and to apply that calculation retroactively from
1 May 2003;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant was retired and granted an invalidity pension
with effect from 1 May 2003.

According to the applicant, when the Commission calculated
his invalidity pension, it manifestly misinterpreted Article 78
of the Staff Regulations in taking as the rate of the invalidity
pension the rate of the old-age pension to which the applicant
would have been entitled at the age of 65 if he had remained
in service until that age and, as his basic salary, the salary he
would receive if he were still in service. The applicant claims
that the pension should, rather, be calculated on the basis of
the old-age pension which would have been paid to him if he
had remained in service until the age of 65.