Case T-504/04: Action brought on 29 December 2004 by Navigazione Libera del Golfo S.p.A. against the Commission of the European Communities
Date: 2005-03-05
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), carriage of passengers, control of State aid, maritime transport, public sector, transport company

5.3.2005

EN

Official Journal of the European Union

C 57/37

The applicant claims that the Court should:

— annul the decision on the award to the applicant of priority
points for the 2003 promotion procedure and the decision
not to include his name on the list of officials promoted to
Grade A5 in that procedure;

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant relies, first, on breach of
Articles 5, 7, 26, 43 and 45 of the Staff Regulations, and
breach of the principle of correspondence between the grade
and the post and the principle that officials should have reason-
able career prospects. Secondly, the applicant pleads that no
consideration of the comparative merits of all the officials of
the same grade was carried out on a basis of equality, in breach
of Articles 5, 7, 43 and 45 of the Staff Regulations and of the
principle that officials should have reasonable career prospects.

Action brought on 27 December 2004 by José Pedro
Pessoa e Costa against the Commission of the European
Communities

(Case T-503/04)

(2005/C 57/63)

(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 27 December 2004 by José Pedro
Pessoa e Costa, residing in Brussels, represented by Sébastien
Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal,
lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul

the Commission's decision of 9 October 2003
refusing to transfer him to the European Monitoring Centre
for Drugs and Drug Addiction (EMCDDA);

— order the Commission to pay the costs.

Following that annulment, the defendant took a fresh decision
on the applicant's application and rejected it again by the deci-
sion contested by the present action.

In support of his action, the applicant alleges infringement of
Article 233 EC, of the principle of proportionality and of the
duty to state reasons, as well as an error in law. The applicant
submits that the contested decision merely repeats the argu-
ments put forward in the first decision to reject his application,
which was annulled by the Court, and does not contain any
explanation making it possible to ascertain whether the rejec-
tion of the applicant's application is based on an assessment of
the various interests involved, as was required by the Court in
its judgment. Moreover,
the Commission wrongly took the
view that the applicant's transfer would result in the closure of
the applicant
a disciplinary procedure against him. Finally,
submits that the contested decision is unlawful because the
Commission took on the role of exercising the discretion of the
EMCDDA Selection Board by claiming,
in its reply to his
complaint, that it could not be ruled out that the result of the
EMCDDA's selection procedure would have been different if
the Selection Board had been informed of
the accusations
against the applicant.

(1) Case T-166/02 (OJ C 180 of 27.7.2002, p. 32).
(2) Judgment of the Court of 13 March 2003 (OJ C 124 of 24.5.2003,

p. 20).

Action brought on 29 December 2004 by Navigazione
Libera del Golfo S.p.A. against the Commission of the
European Communities

(Case T-504/04)

(2005/C 57/64)

(Language of the case: Italian)

Pleas in law and main arguments

The applicant, who is a Commission official, applied for a
transfer to the European Monitoring Centre for Drugs and
Drug Addiction (EMCDDA). His application having been
rejected, the applicant brought an action before the Court (1)
the contested measure. (2)
which resulted in annulment of

An action against the European Commission for the annulment
of the decision adopted on 16 March 2004 (1), pursuant to the
first paragraph of Article 88(2) EC and Article 86(2) EC,
relating to the authorisation of the aid scheme paid by Italy to
the public maritime transport undertaking Caremar (Gruppo
Tirrenia) was brought before the Court of First Instance of the
European Communities on 29 December 2004 by Navigazione
Libera del Golfo S.p.A.
(NLG), established in Naples, repre-
sented by S. Ravenna, lawyer.

C 57/38

EN

Official Journal of the European Union

5.3.2005

The applicant claims that the Court should:

Those provisions:

1. annul Article 3(1) of that decision in so far as it authorises
aid paid to Caremar for the passenger transport services by
ship on the Naples Beverello – Capri route with effect from
1 January 1992, and order repayment of the aid unlawfully
received from 6 August 1989;

2. annul Article 3(2)(a) of the decision in so far as it orders the
annulment of the aid for scheduled ‘fast passenger transport’
services on the Naples Beverello – Capri route with effect
from 1 September 2004 instead of 6 August 1989 and at
the same time ordering reimbursement of the aid unlawfully
received by Caremar since the latter date;

3. order performance of the obligation to reduce Caremar's
‘fast’ passenger transport capacity, by ordering cessation of
the relevant services with effect from 1 January 2005;

4.

in the alternative, in so far as the Court of First Instance
does not annul Article 3(1) in the terms stated in 1. above:

(a) order

repayment of

the aid unlawfully received by
Caremar in the 29 months from 6 August 1989 to 1
January 1992, the effective date of the authorisation;

— authorise the aid granted to Caremar for passenger trans-
port services by ship on the Naples Beverello – Capri route,
with effect from 1 January 1992, and

— annul aid in respect of scheduled ‘fast passenger transport’
services on the Naples Beverello – Capri route, but with
effect from 1 December 2004.

the authorisation of

the aid
According to the applicant,
intended to compensate for the associated losses occasioned by
the PSOs imposed on Caremar, a public company, is unlawful
in so far as the conditions imposed by the rules are not satisfied
in the present case. In that regard, it claims that there has been
an infringement of Article 86(2) EC, Council Regulation (EEC)
No 3577/1992 of 7 December 1992, the duty to provide a
sufficient and consistent statement of reasons.

The applicant submits specifically that:

(b) annul Article 3(2)(d) in so far as it fails to lay down a
requirement to disclose the costs and associated losses
occasioned by the PSO (public service obligations)
imposed on Caremar, and the amount of the aid allo-
cated annually;

— on the Naples – Capri route there has always been competi-
tion from two private shipping lines (NLG and SNAV)
which provide services which are very similar if not iden-
tical throughout the year; given the effect of free-market
forces, the imposition of PSOs on Caremar is therefore
wholly unnecessary;

(c) annul Article 5 in so far as it fails to lay down a require-
ment of prior notification of the aid connected to the
alteration of the prices charged by Caremar, including
group discounts;

5. order the Commission to pay the costs of the proceedings,
subsistence expenses and remuneration of agents, advisers
or lawyers.

Pleas in law and main arguments

— notwithstanding that,

the services provided by the two
private companies have also been the subject of a contract
governed by public law imposed by the Regione Campania
for the purpose of imposing specific PSOs on the subject of
type of vessel and
times, prices,
service quality, which are similar or even identical to the
PSOs imposed on Caremar;

frequency, continuity,

— in performing those services, Caremar incurs huge oper-
ating losses compensated, since 1974, by substantial aid
defined as ‘annual financial balancing subsidies’ (pursuant to
the private
express decision of
companies may not receive any subsidies);

the Regione Campania,

The applicant company, which, following the meeting of the
Regione Campania of 14 December 2001, was charged with
specific public service obligations (PSOs) without any compen-
sation, challenges the Commission decision of 16 March 2004
relating to the State aid paid by Italy to the shipping companies
Adriatica, Caremar, Siremar, Saremar and Toremar (Gruppo
Tirrenia) (not published in the Official Journal of the European
Union), as regards in particular the provisions affecting the
Naples Molo Beverello – Capri route, laid down by Article 3(1)
and 3(2)(a) of the contested decision.

— since the cost of the PSOs imposed on Caremar was not
fixed on the basis of a public invitation to tender, in asses-
sing the propriety of
the subsidies paid to the public
company, the Commission should have analysed the asso-
ciated losses by referring to and taking into consideration
the operating costs of a medium-sized company supplying
similar services (for example, the costs borne by the private
undertakings competing on the same Naples – Capri route).

5.3.2005

EN

Official Journal of the European Union

C 57/39

Lastly, the applicant claims that the Commission has misused
its powers, in so far as it introduced in the contested decision
criteria for
subdividing the market which, by making a
temporal distinction between the services supplied by ship and
those provided by fast vessel, achieved the objective of author-
ising an aid scheme in favour of transport services provided by
ship by Caremar, a scheme which would never otherwise have
been declared compatible, given the existence of competition
from the private companies which operate in conditions to a
certain extent
transport
services.

comparable with the passenger

(1) Decision not yet published in the Official Journal.

Action brought on 4 January 2005 by Guido Strack
against the Commission of the European Communities

(Case T-4/05)

(2005/C 57/65)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 4 January 2005 by Guido Strack,
residing in Wasserliesch (Germany), represented by R. Schmitt,
lawyer.

The applicant claims that the Court should:

— annul both the decision of 5 February 2004 to close the
OLAF investigation OF/2002/0356 and the final case report
on which that decision was based (NT/sr D(2003)-AC-
19723-01687 of 5 February 2004);

— order the Commission to reopen the investigation, draw up
a new final case report and pay all the costs of the judicial
proceedings and all other expenses.

Pleas in law and main arguments

The applicant, who is a Commission official,
informed the
Director General of the European Anti-Fraud Office (OLAF)
that, while performing his duties at the Official Publications
Office, he had become of aware of facts indicating the existence
of serious irregularities. The investigation opened by OLAF on
the basis of that information was closed by the contested deci-
sion.

The applicant submits, first of all, that his action is admissible
because the contested decision has binding legal effect on him
in that it deprives him of the status of ‘whistleblower’.

In support of his action, he submits that OLAF failed to investi-
gate fully the facts of which it had been informed and adopted
an arbitrary decision.

Action brought on 11 January 2005 by the Commission of
the European Communities against Parthenon A.E.

(Case T-7/05)

(2005/C 57/66)

(Language of the Case: Greek)

An action against Parthenon – Anonimos Etairia Ikodomikon –
Touristikon – Viomikhanikon – Emporikon kai Exagogikon
Ergasion was brought before the Court of First Instance of the
European Communities on 11 January 2005 by the Commis-
sion of the European Communities, represented by Dimitrios
Triantafillou, Legal Adviser, assisted by Nikolaos Korogiannakis,
lawyer.

The applicant claims that the Court should:

1. order the defendant to pay the sum of EUR 325 452,80,
which corresponds to EUR 259 800 by way of principal
sum and EUR 65 652,80 in default
interest up to 10
January 2005;

2. order

the defendant

to pay in addition interest of

EUR 71,18 per day until the debt has been settled in full;

3. order the defendant to pay the costs.

Pleas in law and main arguments

The European Community,
represented by the European
Commission, concluded with the defendant, as coordinator and
member of a joint venture, a contract that formed part of
implementation of the provisions of the specific programme of
‘research, technological development and demonstration in the
field of agriculture and fisheries’. More specifically, the contract
was concerned with the carrying out of a project entitled ‘devel-
opment of a new process in fruit cleansing and peeling’ and
was to be performed within a period of 24 months from 1
September 1998. Under the contract the Commission entered
into the obligation to make a financial contribution towards
the proper execution of the project amounting to 50 % of the
allowable
being
ECU 433 000.

the maximum contribution

costs,