Case T-395/04: Action brought on 5 October 2004 by Air One SpA against the Commission of the European Communities
Date: 2004-12-04
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for failure to act, air transport, carrier, control of State aid, provision of services, reduced price

4.12.2004

EN

Official Journal of the European Union

C 300/49

The applicant claims that the Court should:

European Communities on 5 October 2004 by Air One SpA,
represented by Gianluca Belotti and Matteo Padellaro, lawyers.

— annul the promotion procedure for the year 2003 carried
out in his regard pursuant to Article 45 of the Staff Regula-
tions of Officials of the European Communities, the award
of points made in that procedure, and the subsequent deci-
sion not to promote the applicant;

— order the defendant to pay the costs.

Pleas in law and main arguments

The action is brought against the manner in which the promo-
tion procedure for 2003 was conducted, the non-award of
priority points to the applicant, and the decision of
the
Appointing Authority under the 2003 promotion procedure
not to promote the applicant to the next higher grade A 5.

The Applicant claims breach of the following provisions and
general legal principles:

— Article 26 of the Staff Regulations

— Article 25 of the Staff Regulations

— Article 24, sentences 4 and 5 of the Staff Regulations

The applicant claims that the Court should:

— declare and rule that the Commission has failed to fulfil its
obligations under the EC Treaty, since, despite having been
formally requested to do so, it failed to define its position
on the complaint made on 22 December 2003 by Air One
concerning illegal State aid which the Italian authorities
granted to the air carrier Ryanair;

— order the Commission to define its position without further
delay on the complaint made by the applicant and adopt a
formal measure in that connection and on the preventive
measures requested;

— order the defendant to pay all the costs in any case, even if
it becomes unnecessary to give a judgment in the event
that the Commission adopts a measure whilst the proceed-
ings are pending.

— Article 110 in conjunction with Article 45 of the Staff

Pleas in law and main arguments:

Regulations

— Article 43 of the Staff Regulations

— Article 45(1) of the Staff Regulations and the equality prin-

ciple

— the obligation on the Appointing Authority to pay due

regard to the welfare of officials

— the provisions for implementing Article 45 of the Staff

Regulations

— Article 41 of the Charter of Fundamental Rights, the right
to a fair administrative procedure, the welfare principle and
the duty to provide a fair hearing

— the duty to state reasons and not to act in an arbitrary

manner

— the principle of the protection of legitimate expectations

and the rule ‘Apatere legem quam ipse fecisti’

Action brought on 5 October 2004 by Air One SpA
against the Commission of the European Communities

(Case T-395/04)

(2004/C 300/95)

(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

In support of its action, the applicant claims that, by letter
it submitted a complaint to the
dated 22 December 2003,
European Commission on account of illegal aid granted to the
Irish air carrier Ryanair at various Italian airports, in the form
of extremely competitive airport tariffs and prices for services
provided to aeroplanes using Italian airports, at times without
any charge whatsoever being made.

In the absence of any reply from the Commission, Air One
formally called on the latter to define its position on the
complaint within the meaning and for the purposes of Article
232 EC. Four months having passed without the Commission
having defined its position, Air One decided to bring an action
before the Court of First Instance of the European Commu-
nities.

In that respect, it must be emphasised that failure, for a period
of nine months, to reply to a well-constructed complaint based
on facts which, to a large extent and in similar cases, have
already been examined by the Commission and found to
constitute a grant of State aid and the Commission's failure to
take action against the Italian authorities on account of the
alleged aid, which is illegal and, very probably, incompatible
with the common market, can only be declared unlawful by
the Court of First Instance.

According to the applicant it is also worth noting that the
contested aid was granted to an undertaking operating in the
air transport sector — a sector which is already receiving
special attention from the Commission in connection with
State aid.