Case T-434/03: Action brought on 24 December 2003 by Gibtelecom Limited against the Commission of the European Communities
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: European Commission, Gibraltar, Spain, action for annulment (EU), competition, dominant position, telecommunications

6.3.2004

EN

Official Journal of the European Union

C 59/29

Pleas in law and main arguments

Following the judgment of the Court of First Instance in Case
T-17/95 (1), the Commission adopted an amendment of the
rules relating to the criteria applicable to appointment in grade
and classification in scale on recruitment, which entitled
officials to seek a review of their classification on entering the
service. By the contested decision, the Commission confirmed
the applicant’s classification in Grade A 7 on the date of his
recruitment and, accordingly, rejected a request for reclassifi-
cation submitted by the applicant.

In support of his action, the applicant relies on a failure to
state reasons in the contested decision, a manifest error of
assessment and alleged discrimination between the applicant,
whose request for reclassification was rejected, and other
officials who, with less professional experience than the
applicant, were none the less reclassified in the higher grade of
the career bracket.

(1) Judgment of the Court of First Instance of the European Communi-
ties of 5 October 1995, published in OJ C 315, 25.11.95, p. 14.

Action brought on 24 December 2003 by Gibtelecom
Limited against the Commission of the European Com-
munities

(Case T-433/03)

(2004/C 59/46)

(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 24 December 2003 by Gibtelecom
Limited, Gibraltar, represented by Mr M. Llamas, Barrister and
Mr B. O’Connor Solicitor.

The applicant claims that the Court should:

— Annul the Commission’s decision of 17 October 2003
rejecting the complaint brought by Gibtelecom under
Article 86 EC in conjunction with Article 82 EC;

— order the Commission to pay Gibtelecom’s costs.

Article 82 EC in refusing to conclude a cross-border roaming
(GSM) agreement with the applicant. The applicant
later
converted that complaint into a complaint under Article 86
(EC,
in conjunction with Articles 82 EC, 49 EC and 12
EC, against Spain alleging that Telefonica was acting under
instructions from the Spanish Government which claims
sovereignty over Gibraltar.

In support of its application, the applicant invokes a series of
alleged manifest errors of assessment of the contested decision.
According to the applicant, the Commission erred in consider-
ing that Telefonica is not a public undertaking or that it enjoys
special rights within the meaning of article 86 EC. The
applicant further alleges that Telefonica is in a dominant
position and that there is an appreciable effect on trade and
on competition of the refusal to conclude an agreement with
the applicant. In the context of the same plea the applicant
argues that the Commission’s assessment that consumers in
Gibraltar have access to mobile telecommunications services
in Spain is manifestly unsound and that there is no suitable
alternative to the Commission’s intervention.

to inadequate reasoning and a violation of

The applicant further puts forward a number of procedural
and administrative grounds for annulment referring, in this
context,
the
applicant’s legitimate expectations which allegedly arose as a
result of a letter sent on 7 June 2000 by three members of the
Commission to Spain and the United Kingdom, requesting the
two countries, among other things, to find a solution to the
complaint about roaming. The applicant further submits, in
the context of the same plea, that the Commission has failed
to act impartially and that it has breached the principle
requiring it to act within a reasonable period.

Action brought on 24 December 2003 by Gibtelecom
Limited against the Commission of the European Com-
munities

(Case T-434/03)

(2004/C 59/47)

(Language of the case: English)

Pleas in law and main arguments

By the contested decision the Commission rejected a complaint
filed by the applicant on 14 May 1996 alleging that the
Spanish telecommunications operator, Telefonica SA, had
committed a series of abuses of dominant position contrary to

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 December 2003 by Gibtelecom
Limited, Gibraltar, represented by Mr M. Llamas Barrister and
Mr B. O’Connor Solicitor.

C 59/30

EN

Official Journal of the European Union

6.3.2004

The applicant claims that the Court should:

— Declare that the Commission was under a duty to define
its position in respect of
that part of Gibtelecom’s
complaint concerning an infringement of Article 86 (1)
EC in conjunction with Article 12 and/or Article 49 EC;

— Declare that the Commission, by not defining its position
within two months of Gibtelecom’s letter of formal notice
of 18 August 2003, in respect of that part of its complaint
concerning an infringement of Article 86 (1) EC in
conjunction with Article 12 and/or Article 49 EC, failed
to act;

— Call upon the Commission to act by adopting a decision
on that part of Gibtelecom’s complaint concerning an
infringement of Article 86 (1) EC in conjunction with
Article 12 and/or Article 49 EC;

— Order the Commission to pay Gibtelecom’s costs;

— Alternatively, annul

the Commission’s decision of
17 October 2003 (Reference No D005602) rejecting that
part of Gibtelecom’s complaint concerning an infringe-
ment of Article 86 (1) EC in conjunction with Article 12
and/or Article 49 EC;

— Order the Commission to pay Gibtelecom’s costs.

Pleas in law and main arguments

The pleas and arguments invoked by the applicant are similar
to those invoked by the same applicant in case T-433/03.

Action brought on 26 December 2003 by Anne-Marie
Mathieu against the Commission of the European
Communities

(Case T-437/03)

(2004/C 59/48)

(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 26 December 2003 by Anne-Marie
Mathieu, residing in Kraainem (Belgium), represented by
Nicolas Lhoëst, lawyer, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

— Annul the decision of the appointing authority dated
20 December 2003 in so far as it did not award

the applicant any additional seniority and therefore
reclassified her in Grade C 4,
instead of
Grade C 4, third step;

first step,

— In so far as necessary, annul the express decision of the
appointing authority of 11 September 2003, notified
to the applicant on 16 September 2003, dismissing
complaint No R/222/03;

— Order the defendant to pay all the costs of the proceed-

ings.

Pleas in law and main arguments

Following the judgment of the Court of First Instance in Case
T-17/95 (1), the Commission adopted an amendment of the
rules relating to the criteria applicable to appointment in grade
and classification in scale on recruitment, which entitled
officials to seek a review of their classification on entering the
service. By the contested decision, the Commission granted
such a request submitted by the applicant and reclassified her
in Grade C 4, Step 1. The applicant is contesting that decision,
in so far as it does not award her any additional seniority.

In support of her action, the applicant relies on a breach of the
Commission’s decisions of 6 June 1973 and 1 September
1983 on the criteria applicable to appointment in grade and
classification in step on recruitment. She also claims that the
Commission has infringed Article 5(3) of the Staff Regulations
and the principle of equal treatment by refusing to award her
any additional seniority although it awarded the maximum
additional seniority to other officials whose professional
experience is much shorter than hers. Last, the applicant relies
on a failure to state reasons in the contested decision.

(1) Judgment of the Court of First Instance of the European Communi-
ties of 5 October 1995, published in OJ C 315, 25.11.95, p. 14.