Case T-57/05: Action brought on 8 February 2005 by Jeremy Henry Moore Newsum, Mark Anthony Loveday and Robin Shedden Broadhurst against the Commission of the European Communities
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: Alpine Region, European Commission, action for annulment (EU), environmental law, land and buildings, ownership, protected area, protected species

30.4.2005

EN

Official Journal of the European Union

C 106/29

The applicant also argues that the Commission committed a
further breach of the principle of legal certainty by retrospec-
tively applying new guidelines of eligibility of expenditure in
such a way as to change its interpretation of who constituted
the ‘final beneficiary’ and thus render expenses ineligible as
having been made outside the relevant period. According to
the applicant this also violated its legitimate expectations.

European Communities on 8 February 2005 by Jeremy Henry
Moore Newsum, Mark Anthony Loveday and Robin Shedden
Broadhurst, residing in London (United Kingdom), represented
by M. Kingston QC, D. Park, Barrister and J. Withinshaw, Soli-
citor.

The applicants claim that the Court should:

A further breach of the principle of legal certainty was, in the
applicant's view, the retrospective application of flat rate finan-
cial correction. This concept was, the applicant claims, first
developed and enunciated in guidelines adopted by the
Commission in 2002.

— annul the following parts of the Commission's Decision of
7 December 2004 adopting, pursuant to Council Directive
92/43/EEC, the list of sites of Community importance for
the Atlantic biogeographical region (1) (notified under docu-
ment number C(2004) 4032);

The applicant finally submits that the retrospective application
of the Commission's new approach to the practice of substitu-
tion of eligible for ineligible expenditure constitutes a further
breach of the principle of legal certainty. According to the
applicant it was only in the 2002 Guidelines that the Commis-
sion decided that such substitution was no longer permissible.
However, the applicant argues, this approach could not be
applied to projects dating from 1996 and 1997.

(1) Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying
down detailed rules for the implementation of Council Regulation
(EC) No 1164/94 as regards the management and control systems
for assistance granted from the Cohesion Fund and the procedure
for making financial corrections, OJ L 201 p. 5.

(2) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund, Official Journal L 130 p. 1.

Action brought on 8 February 2005 by Jeremy Henry
Moore Newsum, Mark Anthony Loveday and Robin
Shedden Broadhurst against the Commission of the Euro-
pean Communities

(Case T-57/05)

(2005/C 106/62)

(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

(i) Article 1 and that item in Annex 1 of the contested
decision provided with the SCI code UK0030163
Halkyn Mountain/Mynydd Helygain;

(ii) or in the alternative, Article 1 and that item in Annex 1
of the contested decision provided with the SCI code
UK0030163 Halkyn Mountain/Mynydd Helygain which
is shown coloured red in the plan annexed to the appli-
cation;

— order the defendant to pay the costs of the applicants.

Pleas in law and main arguments

The applicants are the owners of tracts of land which is partly
used for agriculture and mineral extraction purposes which
now, under the contested decision, has been declared a site of
Community importance (SCI) for the Atlantic biogeographical
region.

The applicants submit that the contested decision infringes
their fundamental rights guaranteed by the general principles of
the Community legal order. That infringement of fundamental
rights is formally unlawful because upon adoption of
the
Commission Decision (and upon implementation of Directive
92/43/EEC (2)) no form of right of participation is bestowed
upon the property owners concerned. The applicants also
allege that the Commission encouraged or acquiesced in a
public participation exercise undertaken by the Member State
in question which was flawed and inadequate in its nature and
duration.

The applicants further submit that no consideration was given
to economic and social requirements, which includes the appli-
cant's private property rights. The contested decision is also
contrary to the provisions of Directive 92/43/EEC itself because
the question of the compensation to be paid remains entirely
open and unresolved.

C 106/30

EN

Official Journal of the European Union

30.4.2005

According to the applicants, the contested decision does not
specify the species and habitats for which the sites listed are of
Community importance and is based on erroneous technical
information. It would appear that the areas in question were
listed on the basis of the presence of the great crested newt and
of calaminarian grasslands. The applicants argue that
the
former is not an priority species and the latter is not a priority
habitat and that, therefore, they do not know to which priority
natural habitat type or species the contested decision refers.

(1) OJ L 387 p. 1
(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ L 206,
22.7.1992, p. 7).

Action brought on 2 February 2005 by European
Dynamics S.A. against the Commission of the European
Communities

(Case T-59/05)

(2005/C 106/63)

(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 2 February 2005 by European
Dynamics S.A., established in Athens (Greece), represented by
N. Korogiannakis, lawyer.

The applicant claims that the Court should:

— annul the decision of the Commission (DG Agriculture), to
evaluate the applicant's bid as not successful and award the
contract to the successful contractor;

— order the Commission to pay the applicant's legal costs and
other costs and expenses incurred in connection with the
application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to the Commis-
sion's call for tenders AGRI-2004-S4FA-I3-01 for the provision
of information system development, maintenance and support
services
Information
Systems (1). By the contested decision this bid was rejected and
the contract awarded to another bidder.

the DG Agriculture

Financial

for

In support of its application for annulment of that decision the
applicant claims first of all the Commission violated the Finan-
cial Regulation (2) as well as Article 17(1) of Directive 92/50 (3)
by using evaluation criteria that were extremely vague. The
applicant
in
response to the applicant's questions, to explain in a clear and
objective manner what precisely was requested of the tenderers.

the Commission failed,

further contends that

that

further

applicant

The
the Commission
considers
committed manifest errors of appreciation in its evaluation of
the applicant's tender. In this respect the applicant contends
that the Evaluation Committee did not correctly evaluate the
offers, failing to take into account that contrary to the applicant
both members of
the successful consortium had extremely
limited experience. The applicant also maintains that its own
bid was more advantageous.

The applicant also invokes a violation, by the Commission, of
its obligation, under Article 253 EC, to state reasons and a
failure to provide pertinent information requested by the appli-
cant on the grounds for the rejection of its bid. The applicant
also submits that the Commission violated the principle of
good administration and diligence by acting with significant
delay and by not offering adequate answers to the applicant's
requests for information prior to the submission of the bids.

(1) OJ 2004 S 59-050031.
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities, OJ L 248, 16/09/2002, p. 1.

(3) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992, p. 1.

Action brought on 10 February 2005 by Cornelius Roze-
meijer and others against the Council of the European
Union

(Case T-61/05)

(2005/C 106/64)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 10 February 2005 by Cornelius Rozemeijer,
residing in Alkmaar (Netherlands), Gaston Vaesken, residing in
Sanary-sur-Mer
residing in
Sanary-sur-Mer (France), represented by G. Vandersanden, L.
Levi and A. Finchelstein, lawyers.

(France) and Pierrette Vaesken,