Case T-419/04: Action brought on 8 October 2004 by Nadine Schmit against the Commission of the European Communities
Date: 2005-01-08
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, equal treatment, indemnification, promotion, regulations for civil servants, report, sick leave, staff assessment

C 6/40

EN

Official Journal of the European Union

8.1.2005

Decision of
of Appeal:

the Board

Pleas in law:

Annulment of
the Opposition
Division decision, the matter being
referred back to it for reconsidera-
tion.

Misapplication of Article 8(1)(b) of
Regulation (EC) No 40/94 (likeli-
hood of confusion).

Action brought on 7 October 2004 by Scandlines Sverige
AB against the Commission of the European Communities

(Case T-399/04)

(2005/C 6/78)

(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 7 October 2004 by Scandlines
Sverige AB, Helsingborg, Sweden, represented by C. Vajda QC
and R. Azelius and K. Azelius, lawyers.

The applicant claims that the Court should:

— annul the Decision of the Commission of the European
Communities, of 23 July 2004, rejecting the applicant's
complaint of 2 July 1997;

— remit the case back to the Commission for re-examination

of the complaint in the light of the Court's judgment;

— order the Commission to indemnify the applicant for the
costs of these proceedings irrespective of the outcome.

Pleas in law and main arguments

The applicant is Swedish company whose main activity consists
in being the port agent of a ferry-operator. The applicant filed
a complaint with the Commission, against Helsingborgs Hamn
AB (HHAB), a company responsible for running the port in
Helsingborg in Sweden and for setting port charges. The appli-
cant considered that HHAB charged the applicant excessive
port charges, abusing its dominant position in breach of Article
82 EC. This complaint was rejected by the contested decision.

In support of its application the applicant contends that the
Commission erred in concluding that port charges to ferry-
operators were not excessive. According to the applicant the

Commission's cost/price analysis established that HHAB has
been making returns, on its ferry business, of over 100 % the
value of the equity employed in this business. The applicant
argues that such returns cannot be achieved in a competitive
market and are therefore excessive, unfair and abusive.
It
considers that in rejecting that conclusion the Commission
misapplied the term ‘economic value’ and failed to apply the
principle of proportionality or the correct burden of proof. It
the Commission wrongly rejected the
also contends that
comparison between prices charged to ferry-operators and
those charged to cargo-operators as well as the comparison
between prices charged at Helsingborg and those charged at
Elsinore, at the other end of the same route. The applicant also
challenges the Commission's finding that there was no price
discrimination in the meaning of Article 82 EC between ferry
and cargo operators. According to the applicant, the Commis-
sion wrongly concluded that services provided by HHAB to
those two branches are not equivalent and that there was no
competitive disadvantage to the ferry operators.

inadequate and contradictory and for

The applicant further claims that the Commission's reasoning is
wrong,
reason
violates Article 253 EC. It also invokes a breach of its right to
be heard under Article 6 of Regulation 2842/98 and contends
that the Commission failed to carry out a proper investigation
within a reasonable time, thereby breaching Article 10 EC,
Article 6 of the European Convention of Human Rights and
the principle that the Commission must act within a reasonable
time.

this

Action brought on 8 October 2004 by Nadine Schmit
against the Commission of the European Communities

(Case T-419/04)

(2005/C 6/79)

(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 October 2004 by Nadine Schmit,
represented by Pierre Paul Van
residing in Ispra (Italy),
Gehuchten and Pierre Jadoul,
lawyers, with an address for
service in Luxembourg.

8.1.2005

EN

Official Journal of the European Union

C 6/41

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the explicit rejection of 8 July 2004 of the applicant's
complaint, the decision not to draw up an evaluation report
for the period 2001-2002 and the authority's decision not
to include her in the number of officials promoted to Grade
C2 in the promotion year 2003;

— annul the Agency's decision awarding the applicant part
only of the differential allowance mentioned in Article 7(2)
of the Staff Regulations as a result of his being called upon
to occupy a temporary posting between 13 January 2003
and 15 August 2004;

— order the defendant

the sum of
EUR 3 000 by way of compensation for her non-material
damage;

to pay the applicant

— order the defendant to pay the balance of the differential
allowance payable under Article 7(2) of the Staff Regula-
tions;

— order the defendant to pay all the costs.

— order the defendant to pay all the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant, an official of the Commission, took sick leave in
October 2002. She has received an invalidity pension since
the appointing
September 2003.
authority decided not to draw up a staff report for the appli-
cant for the period 2001-2002. She therefore received no merit
or priority points for the promotion year 2003 and her name
was not included in the list of officials promoted to Grade C2.

It was on that basis that

the Staff Regulations and of

The applicant challenges the decisions at issue, pleading infrin-
gement of Article 43 of
the
general provisions implementing that article (decision of the
Commission of 26 April 2002) and of the principles of equal
treatment and proper administration. In that context, the appli-
cant claims that the Commission was not entitled, at the end of
2002 or at the beginning of 2003, to regard the applicant as
less than a year away from retirement for whom
an official
there was no reason to draw up a staff report. Challenging the
decision not to promote her to Grade C2, the applicant alleges
breach of Article 45 of the Staff Regulations and of the princi-
ples of equal treatment and proper administration.

in this case who,

The applicant
like the defendant's legal
adviser, was called upon to occupy temporarily the duties of
the Agency's head of administration, because the holder of that
post was absent on sick leave, challenges the appointing
authority's decision to divide the amount of the differential
allowance between the two persons who filled the temporary
posting. He responded to that decision by stating that he did
not accept that he had worked part-time in replacing the head
of administration and that, in consequence, he was entitled to
the whole of the differential allowance in dispute.

In support of his claims, the applicant alleges infringement of
Article 7(2) of the Staff Regulations, and breach of the princi-
ples of correspondence between the grade and the post, of
non-discrimination and of proportionality.

He also considers that the duty to state the reasons on which
an act is based was not complied with in the circumstances.

Action brought on 11 October 2004 by José Antonio
the European Agency for Safety and
Carreira against

Health at Work

(Case T-421/04)

(2005/C 6/80)

Action brought on 22 October 2004 by Walter Parlante
against the Commission of the European Communities

(Case T-432/04)

(2005/C 6/81)

(Language of the case: French)

(Language of the case: French)

An action against the European Agency for Safety and Health
at Work was brought before the Court of First Instance of the
European Communities on 11 October 2004 by José Antonio
Carreira, residing in Brussels, represented by Georges Vander-
sanden and Laure Levi, lawyers.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 22 October 2004, by Walter
Parlante,
represented by L.
Vogel, lawyer.

residing in Enghien (Belgium),