Case T-459/04: Action brought on 22 November 2004 by Jorge Manuel Pinheiro de Jesus Ferreira against the Commission of the European Communities
Date: 2005-02-19
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, administration of the Institutions, personnel administration, promotion, regulations for civil servants

19.2.2005

EN

Official Journal of the European Union

C 45/25

In support of its action the applicant claims, in the first place,
that the contested decision was adopted on the basis of the
report of a trustee who was not appointed in accordance with
the conditions laid down by paragraph 15 of Annex II to the
Compatibility Decision. The applicant argues that the trustee in
question was not independent, particularly of Editis, contrary
to the duty incumbent on Lagardère in consequence of the
Compatibility Decision.

Second, the applicant claims that the Commission failed in its
duty to supervise the sale of Editis, allowing a selection proce-
dure for purchasers to be put in place which was discrimina-
tory and anti-competitive. According to the applicant,
the
Commission should have required the organisation of a call for
prospective purchasers which was transparent, objective and
non-discriminatory. Furthermore, the Commission should not
the confidentiality agreement
have approved the terms of
between Lagardère
and the potential purchasers, which
included the applicant, preventing them from bringing an
action. The Commission should have taken steps to rectify the
procedure when the applicant drew its attention to the failures
to comply with the competition rules in the EC Treaty. Finally,
the Commission denied the applicant the minimum protection
to which it considered it was entitled as an interested third
party.

Third, the applicant relies on a manifest error by the Commis-
sion in its assessment of whether the conditions laid down in
respect of the purchaser by the Compatibility Decision were
complied with. The applicant argues that the purchaser is not
an operator capable of restoring a situation of effective compe-
tition.

Finally, the applicant relies on a breach of the duty to state
reasons.

(1) Case COMP/M.2978 – Lagardère/Natexis/VUP (OJ 2004 L 125, p.

54)

The applicant claims that the Court should:

— annul the Commission's decision of 17 September 2004

and all its legal consequences.

Pleas in law and main arguments:

The applicant was carrying on a retail business in the terminal
at Paris/Charles de Gaulle airport. It lodged a complaint with
the Commission relating to abuse of a dominant position
within the meaning of Article 82 EC by the public undertaking,
Aéroports de Paris, on the commercial concessions market in
the public airport sector.

By the contested decision, the Commission notified the appli-
cant that there was no sufficient Community interest in the
complaint to justify the opening of a formal investigation.

In support of its action, the applicant relies, first, on error of
law and manifest error of assessment in the decision as to the
lack of a sufficient Community interest. According to the appli-
cant, the Commission was mistaken in finding the absence of a
sufficient interest to pursue the investigation of the case and in
deciding that there was sufficient protection of the applicant's
rights before the national courts.

the applicant pleads an insufficient statement of
Secondly,
reasons in breach of Article 253 EC because the Commission
did not deal with various elements of the applicant's argu-
ments.

Thirdly, the applicant pleads breach of Article 82 EC, because
the Commission refused to investigate the complaint whereas,
according to the applicant, there is abuse of a dominant posi-
tion.

Action brought on 22 November 2004 by Au Lys de
France against the Commission of the European Commu-
nities

Action brought on 22 November 2004 by Jorge Manuel
Pinheiro de Jesus Ferreira against the Commission of the
European Communities

(Case T-458/04)

(2005/C 45/56)

(Case T-459/04)

(2005/C 45/57)

(Language of the case: French)

(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 22 November 2004 by Au Lys de
France, a company established in Le Raincy (France), repre-
sented by G. Lesourd, lawyer.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 22 November 2004 by Jorge
Manuel Pinheiro de Jesus Ferreira, residing in Brussels, repre-
sented by Georges Vandersanden, lawyer.

C 45/26

EN

Official Journal of the European Union

19.2.2005

The applicant claims that the Court should:

— annul the decision of the Commission of 18 March 2004

classifying the applicant in Grade A5, step 3;

— order the Commission to pay the difference between the
salary corresponding to the applicant's classification in
Grade A5, step 3, and the salary corresponding to classifica-
tion in a higher grade, with default interest of 5.75 % per
annum from 1 December 2002;

— order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant, a Commission official, applied for a post at A5/
A4 level in the field of taxation and customs. He was selected
and appointed at Grade A5, step 3. The applicant contests that
decision, arguing that he is a particularly highly qualified candi-
date with exceptional qualifications and that he should, there-
fore, have been appointed at Grade A4. On that basis, the
applicant raises a plea of manifest error of assessment in the
application of Article 31 of the Staff Regulations.

The applicant also raises a plea of breach of the right to a fair
hearing alleging that the defendant did not give him an oppor-
tunity to present his point of view before the contested deci-
sion was taken.

Finally, the applicant relies on a plea of breach of Article 253
EC, pointing out that no reasons were stated for the contested
decision, or in the alternative, that inadequate reasons were
stated.

Action brought on 6 December 2004 by Cristina Asturias
Cuerno against the Commission of the European Commu-
nities

(Case T-473/04)

(2005/C 45/58)

(Language of the case: Spanish)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

European Communities on 6 December 2004 by Cristina
Asturias Cuerno, residing in Brussels, represented by Ramon
García-Gallardo and Alicia Sayagués Torres, lawyers.

The applicant claims that the Court should:

1. annul the decision of the Commission of 26 August 2004

rejecting her complaint of 27 April 2004;

2. recognise the applicant's entitlement
allowance and other related allowances;

to the expatriation

3. order the Commission to pay all the costs.

Pleas in law and main arguments:

The applicant in these proceedings contests the decision of the
administration that she is not entitled to receive the expatria-
tion allowance.

In support of her application she relies on the following pleas
in law:

— Error of law in the assessment of the facts in that the
contested decision does not take account of the fact that
the applicant's work as an assistant to a Member of the
European Parliament must be considered to be work done
for an international organisation which, under the Staff
Regulations, does not count towards the reference period.

— Manifest error of assessment of the facts and, specifically, of
the personal situation of the applicant, in that her reference
period in Brussels was calculated wrongly, given that it
amounted to only four years and 11 months.

— Breach of

the principle of non-discrimination.

In that
connection, it is claimed that the failure to recognise work
done as a parliamentary assistant as work done for an inter-
national organisation is contrary to the practice of the
other Community institutions. The principle of equal treat-
ment has also been infringed by the Commission in that
the work done by the applicant for the European Mortgage
Federation was not recognised as work done for an interna-
tional organisation, although the Commission itself had
recognised it as such in the past.