Case T-2/04: Action brought on 2 January 2004 by Cemender Korkmaz, The Corner House and the Kurdish Human Rights Project against the Commission of the European Communities
Date: 2004-03-20
Institutions: Court of First Instance
Subjects: European Commission, Türkiye, accession criteria, action for annulment (EU), oil industry, suspension of aid

C 71/32

EN

Official Journal of the European Union

20.3.2004

European Communities on 31 December 2003 by SIC-
Sociedade Independente de Comunicação, S.A, established in
Carnaxide (Portugal), represented by Carlos Botelho Moniz,
Eduardo Maia Cadete and Margarida Rosado da Fonseca,
lawyers, with an address for service at Rua Castilho, 75, 1o,
1250-068, Lisbon (Portugal).

The applicant claims that the Court should:

annul the decision of the European Communities C(2003)
3526 (final) of 15 October 2003 on ad-hoc measures applied
to RTP by Portugal.

Pleas in law and main arguments

1.

2.

Breach of the duty to act diligently and impartially;

Errors of fact;

3. No basis for the finding in the contested decision on

‘investment costs’;

4.

5.

Error of law concerning the failure to classify certain
measures as State aid;

Error of law as to the conditions for the application of
Article 86(2) EC.

As regards the breach of the duty of diligence, the applicant
maintains that the contested decision represented the final
stage in the Commission’s failure to act transparently, impar-
tially and diligently in the way it conducted the procedure
culminating in the adoption of
the decision, which was
conducted throughout with a view to justifying the unjustifia-
ble and omitting facts essential for the purpose of an accurate
analysis of the way in which RTP ‘fulfilled’ its public service
obligations.
the Commission did not act
neutrally and failed to maintain an equal distance between the
interests in play, since it did not thoroughly weigh up the
legally protected interests prior to taking action.

It submits that

In relation to the errors of fact, the applicant maintains, in
particular, that no regard was had to the additional assistance
granted by the State to the public operator in 1998, whilst
sums which had not been verified by independent auditors
were taken into account as ‘investment costs’. In the applicant’s
submission, the Commission also failed to check that RTP had
actually fulfilled its public service obligations.

into account, as investment costs, sums relating to the
acquisition of assets when the auditors confirmed that there
was not even any evidence that the assets actually existed.

The applicant argues that the fact that certain measures were
found not to constitute State aid within the meaning of
Article 87(1) EC amounted to an error of law. Those measures
included the exemption from paying fees and emoluments,
postponement of the payment of fees for the use of the
television broadcasting network and a bond issue.

The applicant also claims that the decision errs in law as
regards the application of Article 86(2) EC, given that the
Portuguese Government did not award public service television
broadcasting to RTP on the basis of a transparent and non-
discriminatory procedure.

laid down itself

Furthermore, the Commission did not observe the criteria for
in the
applying Article 86(2), which it
‘Communication on the application of State aid rules to public
service broadcasting’. The applicant also maintains that, as
regards the supply by RTP of a public service, the Commission’s
decision is not founded on any documentary evidence as to
whether RTP actually fulfilled the public-service obligations
laid upon it by the State, since, in practice, the facts of the case
suggest that, as regards the relevant period, the service which
RTP was contractually bound to provide was not properly
supplied.

Action brought on 2 January 2004 by Cemender Kork-
maz, The Corner House and the Kurdish Human Rights
Project against the Commission of the European Com-
munities

(Case T-2/04)

(2004/C 71/60)

(Language of the case: English)

The applicant claims that there is no basis for taking the
‘investment costs’ into account in the contested decision, since
the Commission fails to state the reasons why it took the
relevant sums into account in its final decision and why it,
inconsistently, did not take into account the sums in RTP’s
‘Reports on the Public Service’ but those in RTP’s financial
accounts. It also fails to explain why it was possible to take

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 January 2004 by Cemender
Korkmaz, Flers, (France), The Corner House, Newton, (United
Kingdom), and the Kurdish Human Rights Project, London,
(United Kingdom), represented by P. Moser, Barrister, and
A. Stock, lawyer, with an address for service in Luxembourg.

20.3.2004

EN

Official Journal of the European Union

C 71/33

The applicant claims that the Court should:

— grant an order to declare void the relevant finding in the

said Commission Report of 5 November 2003;

— grant a declaration that the Commission has failed to act,

contrary to the EC Treaty;

— grant an order that the Commission do propose to the
Council the freezing of pre-accession assistance pending
a resolution of Turkey’s failures to comply with the EU
accession criteria identified by the Commission;

— grant an order that the Commission do act to address the
Turkish breaches of accession conditions trough the
institutions of the EU-Turkey Association Agreement;

— grant an order that the Commission recommend to the
Council the declaration of a moratorium on further
accession negotiations with Turkey pending the resol-
ution of the breaches of accession conditions by Turkey;

— order the Commission to bear the applicants’ costs of this

application.

Pleas in law and main arguments

The background to the case is the Baku-Tbilisi-Ceyhan Pipeline
Project Agreements entered into between Turkey and the
Pipeline project companies. The applicants state that under
these agreements the Turkish Parliament has created a ‘prevail-
ing legal regime’ governing the territory and implementation
of the Pipeline project and abrogating national laws to the
benefit of the oil companies concerned. According to the
applicants, this has caused access to justice and the right to
land to be limited, the Copenhagen criteria of human rights,
the rule of law and the protection of minorities to be weakened
and Turkey to move away from the acquis communautaire,
including the impossibility of adopting the principle of
supremacy of EC Law and a breach of the environmental
impact assessment criteria.

Therefore, the applicants have requested the Commission take
action to freeze the pre-accession assistance to Turkey and to
act through the mechanisms of the EU-Turkey Association
agreement. In the present action, the applicants ask on the one
hand for the annulment of the Commission’s ‘2003 Regular
Report on Turkey’s progress towards accession’ insofar as it
includes a negative decision refusing to make a recommen-
dation to the Council regarding the pre-accession funding for

Turkey, while on the other hand, the applicants claim that the
Commission failed to act by not defining its position and not
making a recommendation to the Council regarding the pre-
accession funding for Turkey. According to the applicants, the
Commission has failed in its duty to make a proposal to the
Council under Article 4 of Regulation 390/2001 (1). According
to the applicants, the Commission should have made such a
proposal because Turkey failed to make the requisite progress
towards fulfilment of the Copenhagen criteria and failed to
move towards the acquis, which, under Article 5 of Regulation
2500/2001 (2), are essential preconditions for continuing to
grant pre-accession funding.

The applicants also claim in this respect that Turkey failed to
move towards the entire framework of Community secondary
legislation and in particular the reinforcement of administrative
and judicial capacity and the Environmental Impact Assess-
ment Directive (3), which are also essential preconditions for
continuing to grant pre-accession funding under annex 4 of
decision 2001/235 (4).

The applicants furthermore claim that the Commission, by
failing to make the requested proposal, has failed in its duty to
interpret the Community legislation consistently with the rules
law and in particular in relation to the
of
European Union’s obligation under Article 8 of
the UN
Convention on Biological Diversity of 1992.

international

Finally, the applicants claim that the Commission has failed to
give reasons for its action and its inaction.

(1) Council Regulation (EC) No 390/2001 of 26 February 2001 on
assistance to Turkey in the framework of the pre-accession
strategy, and in particular on the establishment of an Accession
Partnership (OJ L 58, p. 1).

(2) Council Regulation (EC) No 2500/2001 of 17 December 2001
concerning pre-accession financial assistance for Turkey and
amending Regulations (EEC) No 3906/89, (EC) No 1267/1999,
(EC) No 1268/1999 and (EC) No 555/2000 (OJ L 342, p. 1).
(3) Council Directive 85/337/EEC of 27 June 1985 on the assessment
of the effects of certain public and private projects on the
environment (OJ L 175, p. 40).

(4) 2001/235/EC: Council Decision of 8 March 2001 on the prin-
ciples, priorities, intermediate objectives and conditions contained
in the Accession Partnership with the Republic of Turkey (OJ
L 85, p. 13).