Case T-286/04: Action brought on 9 July 2004 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities
Date: 2004-10-09
Institutions: Court of First Instance
Subjects: EAGGF Guarantee Section, European Commission, Northern Ireland, United Kingdom, action for annulment (EU), agricultural expenditure, approval, closing of accounts

9.10.2004

EN

Official Journal of the European Union

C 251/25

Action brought on 12 July 2004 by UPS Europe N.V./S.A.
and UPS Deutschland Inc. & Co OHG against the Commis-
sion of the European Communities

(Case T-284/04)

(2004/C 251/45)

(Language of the case: English)

In support of their application the applicants invoke a breach
of Regulation 1049/2001, contending that none of the excep-
tions of Article 4 apply and that therefore access should have
been granted as requested. They also invoke a breach by the
Commission of the duty, under Article 253 EC, to state reasons
for its decision. The applicants submit that the Commission is
in breach of Regulation 1049/2001 also on the grounds that it
neither replied within the prescribed time limit nor stated any
reasons for refusing to grant access. Finally, they argue that the
Commission has violated its own Rules of Procedure as
amended by the Commission's decision of 5 December
2001 (3). According to the applicants, the Commission should
have finalised its consultation of Deutsche Post and have taken
a decision within the 15 day working period.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 12 July 2004 by UPS Europe N.V./
S.A., Brussels, Belguim and UPS Deutschland Inc. & C. OHG,
represented by Mr T.R. Ottervanger and Ms A.S. Bijleveld,
lawyers.

The applicant claims that the Court should:

— Annul the implied Commission decision to refuse their
confirmatory request of 13 April 2004 for access to certain
documents;

— Order the Commission to pay the costs of this procedure.

Pleas in law and main arguments:

that

By a decision dated 20 March 2001 (1) the Commission decided
that Deutsche Post AG had infringed Article 82 of the EC
Treaty through its practices in the mail-order parcel sector. It
further required Deutsche Post to create a separate commercial
parcel services subsidiary as well as a system of transparent and
market-based pricing between Deutsche Post AG and that
subsidiary. Deutsche Post was required to inform the Commis-
sion annually on the fulfilment of these undertakings. Deutsche
Post did so by letter of 22 May 2003. The applicants, who are
also active in the same business sector, requested and received
a non-confidential version of
letter on 22 September
2003. On 20 October 2003 the applicants requested the
Commission to grant
them access to the average internal
transfer prices charged by Deutsche Post to its subsidiary, infor-
mation which had been blanked out in the non-confidential
version of the letter of 22 May 2003. They also requested
access to a report and a calculation which, according to the
same letter, had been submitted to the Commission on 16
November 2001. The request was made on the basis of Regu-
lation 1049/2001 (2) Official Journal L 145, 31/05/2001, p.
43-48. The applicants repeated their request on 18 November
2003 and made a confirmatory application on 13 April 2004.
By letter of 21 April 2004 the Commission acknowledged
receipt of the confirmatory application and stated that it was
consulting Deutsche Post on the exact scope of the commer-
cially sensitive information in the documents requested. Not
having received any further answer, the applicants consider
that there is an implied Commission decision to refuse their
application for access, and request the Court to annul it.

(1) Commission Decision of 20 March 2001 relating to a proceeding
under Article 82 of the EC Treaty (Case COMP/35.141 — Deutsche
Post AG) (notified under document number C(2001) 728), OJ L 125
5/5/2001 p. 27.

(2) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents.

(3) OJ L 345, 29/12/2001 p. 94.

Action brought on 9 July 2004 by the United Kingdom of
Great Britain and Northern Ireland against the Commis-
sion of the European Communities

(Case T-286/04)

(2004/C 251/46)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 9 July 2004 by the United Kingdom
of Great Britain and Northern Ireland, represented by Mr R.
Thompson QC and Mr S. Grodzinski Barrister with an address
for service in Luxembourg.

The applicant claims that the Court should:

— Annul Article 2 of Commission Decision 2004/451/EC on
the clearance of the accounts of Member States' expenditure
financed by the European Agricultural Guidance and Guar-
antee Fund,
for the 2003 financial year, notified under
document number C(2004) 1699 (1), insofar as it relates to
the accounts of the Rural Payments Agency, the Depart-
ment of Agriculture and Rural Development, the Forestry
Commission and the Countryside Council for Wales;

C 251/26

EN

Official Journal of the European Union

9.10.2004

— Grant a declaration that the decision to disjoin the Scottish
Executive Environment and Rural Affairs Department
accounts is unlawful to the extent that it is based on non-
in
compliance with the sampling methodology set out
Guideline 8 issued by the Commission Directorate-General
VI (Agriculture) in July 1998;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The Commission's Decision 2004/451 was taken within the
framework of Council Regulation (EC) 1258/1999 (2) on the
financing of the common agricultural policy. By the contested
Article 2 the Commission decided to disjoin the accounts of,
among others, the paying agencies referred to by the applicant,
and make those accounts the subject of a future clearance deci-
sion.

Action brought on 15 July 2004 by Kris Van Neyghem
against the Committee of the Regions

(Case T-288/04)

(2004/C 251/47)

(Language of the case: Dutch)

An action against the Committee of the Regions was brought
before the Court of First Instance of the European Communities
on 15 July 2004 by Kris Van Neyghem, residing in Tienen
(Belgium), represented by Dirk Janssens.

The applicant claims that the Court should:

— annul Decision 87/03;

The applicant contends that, as far as those agencies are
concerned, the decision to disjoin their accounts was made on
the sole or principal basis that the ‘sampling’ methodology used
by the United Kingdom's National Audit Office for
the
purposes of preparing its audit report and certificates for the
2003 accounts, was different
from the particular sampling
methodology suggested for use in Guideline 8.

— annul any decision connected with or

resulting from

Decision 87/03;

— classify the applicant in Grade B 1, or at least no lower

than Grade B 4, Step 4;

— order the Committee of the Regions to pay all costs of the

proceedings.

In support of its application the applicant first of all submits
that
the Commission has no legal competence to require
national certifying bodies to conform to the methodology laid
down in a Guideline, where it accepts that the criteria laid
down in Regulation 1258/99 as well
as Regulation
1663/1995 (3), have been met. The applicant further contends
that the Commission has misdirected itself in law by inter-
preting its own Guideline as a binding rule of law. Even were it
to be decided, contrary to the applicant's submissions, that the
Guideline is in principle capable of laying down a binding rule
of law, the applicant argues that it is at least ambiguous in its
meaning and the Commission's interpretation is contrary to the
principle of legal certainty. The applicant also alleges that in
the light of the history of the matter, the conduct of the
Commission in seeking to impose its own interpretation of
Guideline 8 is contrary to the protection of legitimate expecta-
tions. Moreover, the Commission's attempt to control the way
in which the United Kingdom National Audit Office exercises
its expertise is, according to the applicant, contrary to the prin-
ciple of subsidiarity laid down in Article 5 of the EC Treaty and
manifested by Article 3 paragraph 1 of Regulation 1663/95.
Finally, the applicant submits that, to the extent that it may be
argued by the Commission that the contested decision was
based on other considerations, it is vitiated by a manifest error
of assessment.

(1) OJ L 155, 30/04/2004, p. 129-133.
(2) OJ L 160, 26/06/1999, p. 103-112.
(3) Commission Regulation (REGULATION) No 1663/95 of 7 July
1995 laying down detailed rules for the application of Council
Regulation (EEC) No 729/70 regarding the procedure for the clear-
ance of the accounts of the EAGGF Guarantee Section, OJ L 158,
08/07/1995, p. 6.

Pleas in law and main arguments:

The applicant has been working as an official of the Committee
of the Regions since 1 December 2002. He is challenging the
decision of 26 March 2003 whereby he was definitively classi-
fied in Grade B 5, Step 4.

In support of his application, the applicant argues that the
contested decision is inadequately reasoned and that there has
been a breach of Articles 5(3), 31 and 32 of the Staff Regula-
tions, in conjunction with an infringement of the principle of
equal treatment.

Action brought on 19 July 2004 by Caremar SpA against
the Commission of the European Communities

(Case T-292/04)

(2004/C 251/48)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 19 July 2004 by Caremar SpA and
others,
represented by Gian Michele Roberti, Alessandra
Franchi and Guido Bellitti, lawyers.