Action brought on 13 April 2004 by K.M. Mayer, Tilly Forstbetriebe GesmbH, A. Volpini de Maestri and J. Volpini de Maestri against the Commission of the European Communities (Case T-137/04)
Date: 2004-05-29
Institutions: Court of First Instance
Subjects: Alpine Region, European Commission, action for annulment (EU), farmer, protected area

C 146/6

EN

Official Journal of the European Union

29.5.2004

Pleas in law and main arguments:

J.-N. Louis and E. Marchal, lawyers, with an address for service
in Luxembourg.

By the contested decision the Commission found that the appli-
cants, among others, infringed Articles 81 EC and 53(1) EEA
by participating in a complex of agreements and concerted
practices which affected the EEA market for industrial copper
tubes supplied in level wound coils. On these grounds, the
Commission imposed a fine of 18.990.000 Euros on the appli-
cants, jointly and severally.

The applicants do not contest the Decision's findings with
respect to their infringement of the EC and EEA competition
rules, but contend that the Commission committed a number
of factual and legal errors in calculating the amount of the fine.
Firstly, they submit that in establishing the basic amount of the
fine and in its calculation of the duration element, the Commis-
sion violated the principles of proportionality and equal treat-
ment by not taking the statistically insignificant market impact
of the agreements in question and the variations in the cartel's
activities into account.

the gravity of

The applicants further claim that in the context of its assess-
the Commission
ment of
grossly overstated the economic impact of the agreements in
question, by taking the size of the market for the semi-finished
products (copper industrial tubes) into account rather than the
market for conversion services.

the infringement,

The applicants also contend that
the Commission wrongly
failed to take several attenuating circumstances into account,
namely: the limited implementation of the agreements in ques-
tion by the applicants, their immediate and voluntary termina-
tion of the infringement; the structural crisis of the industrial
tube industry; and the applicants' cooperation with the
Commission. They claim that the 30 % fine reduction they
were granted was based on erroneous factual premises, and
was inconsistent with the Commission's practice and the case
law. They further submit
the Commission unlawfully
that
discriminated between them and another company, by applying
certain attenuating circumstance only to the latter and by
according a much more lenient treatment to it without any
objective reason.

Action brought on 8 April 2004 by Giuseppe Caló against
Commission of the European Communities

(Case T-134/04)

(2004/C 146/08)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 8 April 2004 by Giuseppe Caló,
residing in Luxembourg, represented by S. Orlandi, A. Coolen,

The applicant claims that the Court of First Instance should:

— annul the Commission decision of 30 March 2004 to fill
the Grade A2 post of Director of the Agriculture, fisheries,
structural funds and environment statistics directorate of
the DG EUROSTAT and that rejecting the applicant's candi-
dature for that post;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an official of the defendant assigned to EURO-
STAT as Director of the Agriculture, environment, food and
regions statistics directorate, had been reassigned, with his post,
to the duties of Principal Adviser to the Director-General of the
Directorate-General to which he was assigned. The Commission
had also decided to fill his former post.

The applicant has challenged those decisions before the Court
of First Instance in another case (T-118/04 Caló v Commis-
sion).

In the present action, the applicant challenges the decision to
appoint another official to his former post, relying, first, on the
same pleas in law as those invoked in Case T-118/04. He
claims moreover that the candidate appointed does not have
the qualifications required by the vacancy notice in question.
He also contends that that candidate participated in a meeting
of the Commissioners' Chefs de cabinet at which the filling of
the post for which he was himself a candidate was decided. The
applicant, on that basis, alleges infringement of the principles
of transparency, fairness and impartiality and infringement of
the rights of
the applicant alleges a
complete failure to state reasons.

the defence. Finally,

Action brought on 13 April 2004 by K.M. Mayer, Tilly
Forstbetriebe GesmbH, A. Volpini de Maestri and J.
Volpini de Maestri against the Commission of the Euro-
pean Communities

(Case T-137/04)

(2004/C 146/09)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 April 2004 by K.M. Mayer,
Eisentratten (Austria), Tilly Forstbetriebe GesmbH, Treibach
(Austria), A. Volpini de Maestri, Spittal/Drau (Austria), and J.
Volpini de Maestri, Seeboden (Austria), represented by M.
Schaffgotsch, lawyer.

29.5.2004

EN

Official Journal of the European Union

C 146/7

The applicants claim that the Court should:

— annul the entire contested decision of the Commission; or,

should that form of order not be granted, in the alternative,

— annul the contested decision in respect of all Austrian sites
of Community importance (Code AT in Annex I to the
contested decision); or,

should that form of order not be granted, in the alternative,

— (a) annul the contested decision of the Commission insofar
as it includes site AT 2102000 ‘Nockberge’ and

(b) annul the contested decision of the Commission insofar
as it includes site AT 2119000 ‘Gut Walterskirchen’; or,

should that form of order not be granted, in the alternative,

— annul the contested decision insofar as it includes sites
declared in Annex I to be sites of Community importance
for habitats and species which, in the standard data forms
submitted by the Member States, were awarded a degree of
representativity and a global assessment grade of B, C and
D (or, in the alternative, C and D, or, in the further alterna-
tive, C), with regard to

(a) all sites listed in the contested decision (see Annex I), or

(b) all Austrian sites (Code AT in Annex I), or

(c) merely

the

sites AT 2102000 ‘Nockberge’

and

AT 2119000 ‘Gut Walterskirchen’;

— in any event, however, order the Commission to pay the
costs to the authorised representative of the applicants.

Pleas in law and main arguments:

The applicants' action challenges Commission Decision of 22
to Council Directive
December 2003 adopting, pursuant
92/43/EEC, the list of sites of Community importance for the
Alpine biogeographical region. (1) The applicants are farmers
and foresters who operate agricultural and forestry businesses,
including ancillary businesses, on their properties, which are
located in areas declared in the contested decision to be ‘sites
of Community importance’ (SCI). The applicants submit that,
by the Decision, they have been made addressees of rules of
Community law. The Decision interferes with the applicants'
right to land ownership – which is to be protected in accord-
ance with the constitutional tradition of Community law –
automatically, without
there having been any balancing of
interests, without exception and without appropriate compen-
sation (or even mere provision for compensation) and to an
extent much greater that which may be necessary on account

of any social obligation. This constitutes an infringement of the
Treaty within the meaning of paragraph 2 of Article 230 EC,
with the result that the contested decision must be annulled.

The applicants argue that the contested decision is also incon-
sistent with the very Directive on which it is based. (2) The
criteria necessary for determining the required financing were
not properly drawn up and the coherence of the conservation-
area network required under the Directive is not guaranteed.

Moreover, the applicants claim that the Commission failed in
the contested decision to make expressly the required state-
ments specifying the species and habitats for which the sites
now listed by it as ‘SCIs’ are actually of Community impor-
tance. Finally, the applicants submit that,
in respect of the
conservation areas affecting them, the content of the decision is
based on erroneous technical information. The sites were thus
wrongly declared SCIs in respect of particular species and habi-
tats and the contested decision must be annulled for this reason
also.

(1) OJ 2004 L 14, p. 21.
(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ 1992 L 206, p.
7).

Action brought on 8 April 2004 by Adviesbureau Ehcon
B.V. against Commission of the European Communities

(Case T-140/04)

(2004/C 146/10)

(language of the case Dutch)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 8 April 2004 by Adviesbureau
Ehcon B.V., established in Reeuwijk (Netherlands) represented
by M.A. Goedkoop.

The applicant claims that the Court should:

— order the European Community to pay compensation for
the loss of euro 158 400 which the applicant suffered as a
result of the failure to award the contract, together with
interest at the legal rate until payment in full has been
made;