Case T-298/04: Action brought on 5 October 2004 by Guido Strack against the Commission of the European Communities
Date: 2004-12-04
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, personnel administration, promotion, regulations for civil servants, staff assessment

C 300/48

EN

Official Journal of the European Union

4.12.2004

Pleas in law and main arguments:

In support of its action, the applicant submits that Article
88(2) EC does not permit the Commission to impose on the
Member State in question measures for
the reduction or
removal of effects of State aid which distorts competition other
than measures to recover that aid. Nor are the measures
provided for in Article 2 of the contested decision valid as a
modification of the aid, or as conditions or requirements which
could be covered by Article 7(4) of Regulation 659/1999. As a
result, the Commission has therefore exceeded its margin of
discretion and infringed Article 10 EC, which imposes a duty
of loyal cooperation between the Member States and the EC
institutions, particularly since Germany has expressly stated
that it is not in a position to guarantee compliance with the
conditions.

The applicant
the Commission has
committed grave errors of assessment in its examination of the
compatibility of the aid with the common market.

submits

further

that

Action brought on 28 September 2004 by Carla Piccinni-
Leopardi, Carlos Martínez Mongay and Georgis Katalagar-
the Commission of
the European
ianakis
Communities

against

(Case T-390/04)

(2004/C 300/93)

(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 28 September 2004 by Carla
Piccinni-Leopardi and Carlos Martínez Mongay, residing in
Brussels, and by Georgis Katalagarianakis, residing in Overijse
(Belgium), represented by Sébastien Orlandi, Albert Coolen,
Jean-Noël Louis and Etienne Marchal, lawyers, with an address
for service in Luxembourg.

The applicants claim that the Court should:

— annul

the Commission's decision awarding merit and
priority points to the applicants by way of credit for the
past and the decision not to promote them to grade A 4;

— order the defendant to pay the costs.

of the modification of their classification in grade on recruit-
ment and not to promote them to grade A 4 in the course of
that procedure.

In support of their claims they plead:

— infringement of Articles 43 and 45 of the Staff Regulations
insofar as, even though their staff reports were drawn up
beforehand, the applicants were none the less subject to a
blanket award of credit for past merit. The applicants point
out in that connection that, in their view, the award of one
transitional point for seniority in grade disregards the prin-
ciple that promotion should follow a consideration of the
comparative merits of officials;

— infringement of the principle of equal treatment and non-
discrimination and of Article 5(3) of the Staff Regulations
and of the principle of the right to career advancement. In
that regard, the applicants point out that those officials
who have not been promoted for a long time because their
performance was not considered sufficiently deserving, have
been awarded priority points individually and will receive
them in the 2004 promotions procedure. On the other
hand, the applicants, whose merits, it is alleged, could not
be taken into account at their true value from the start of
their career, are treated in the same way as officials who
were not eligible for classification in a higher grade on
recruitment;

— infringement of Article 233 EC. In that regard they point
out that, in their view, the question which arises here is
whether, since the general implementing provisions relating
to the classification criteria have been declared unlawful
and the Commission has undertaken to reconsider the clas-
sification of the many officials recruited under those general
provisions, the decision to fix the applicants' classification
on recruitment at the higher grade in the career bracket
may be so restrictive as to deprive it of any useful effect.

Action brought on 5 October 2004 by Guido Strack
against the Commission of the European Communities

(Case T-298/04)

(2004/C 300/94)

(Language of the case: German)

Pleas in law and main arguments:

The applicants in these proceedings contest the defendant's
decision not to award them specific merit or priority points in
the course of the 2003 promotions procedure to take account

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 5 October 2004 by Guido Strack,
residing in Wasserliesch (Germany), represented by J. Mosar,
lawyer, with an address for service in Luxembourg.

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.