Case T-306/05: Action brought on 10 August 2005 — Scippacercola and Terezakis/Commission
Date: 2005-10-29
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), airport, charges for use of infrastructure, complaint to the Commission, dominant position

C 271/20

EN

Official Journal of the European Union

29.10.2005

Form of order sought

Action brought on 1 August 2005 — Balabanis and Le
Dour v Commission

The applicant(s) claim(s) that the Court should:

— hold that the European Community is non-contractually
liable in respect of the unlawful conduct of the Commission
in irregular circum-
following the Commission's failure,
stances, to renew the contract of employment between it
and the applicant;

(Case T-305/05)

(2005/C 271/40)

Language of the case: French

— order

the defendant

to pay damages and interest

in
compensation for both the applicant's professional loss (of
an initial indicative amount of EUR 350 000) and his non-
material loss (in an amount left to the fair and just assess-
ment of the Court);

— order the defendant to pay all the costs.

Pleas in law and main arguments

The present action seeks compensation for the loss allegedly
suffered by the applicant because of the Commission's failure,
in circumstances which the applicant considers irregular, to
renew the contract of employment which he had concluded
with the defendant in the context of technical cooperation
between the European Community and the Government of
Niger.

It should be noted in that regard that the applicant is an expert
on the EuropAid list who, since 1992, has carried out a
number of tasks as a contractual employee of the Commission.
On 7 March 2002, he signed a contract of employment with
the Commission for twelve months as a technical assistant with
the Ministry for Equipment and Transport in Niamey. The task
proceeded satisfactorily. The renewal of that contract was the
subject of an official enquiry by the Ministry in its capacity as
national authorising officer of the European Development Fund
(EDF).

In support of his claims, the applicant submits, firstly, that
there has been an infringement of the IV Lomé Convention, in
that
the Commission did not comply with the division of
powers between the national authorising officer and the Head
of the Delegation, the latter not being able to oppose the
renewal of the contract, since Article 313.2(k) of the Conven-
tion gives sole jurisdiction to the national authorising officer of
the EDF in matters of recruitment of experts in technical assis-
tance, the only obligation being to inform the Head of the
the
Delegation thereof. Furthermore, and in any event,
Commission did not comply with the obligatory time-limit of
30 days laid down in Article 314 of the Convention within
which it was to reply to the national authorising officer's
request concerning the renewal of the contract.

Parties

Applicant(s): Panagiotis Balabanis (Brussels, Belgium), Olivier Le
Dour (Brussels, Belgium) (represented by: X. Martin, S. Orlandi,
A. Coolen, J.-N Louis, E. Marchal, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul the Commission's decision not to take account of the
applicants' merits for the 2004 promotion exercise and the
decisions not to promote them to a higher grade in their
category;

— order the defendant to pay the costs.

Pleas in law and main arguments

In this case the applicants, who were appointed probationary
officials on 16 March 2002 and who, in accordance with the
new wording of Article 45 of the Staff Regulations, completed
the minimum of two years in their grade as from 16 March
to
2004,
consider them as eligible for the 2004 promotion exercise and
to promote them to a higher grade in their category for the
same exercise.

the Appointing Authority's

thus contest

refusal

In support of their claims the applicants assert that Article 45
of the Staff Regulations has been infringed. In accordance with
that new provision the probationary period must be taken into
account for the purpose of calculating the minimum seniority
in grade.

Action brought on 10 August 2005 — Scippacercola and
Terezakis/Commission

(Case T-306/05)

(2005/C 271/41)

Language of the case: English

Finally, the applicant claims that there was an infringement of
the principles of sound administration, of the duty of care and
of the protection of legitimate expectations.

Parties

Applicant(s):
(Brussels, Belgium) [represented by: A. Krystallidis, lawyer]

Isabella Scippacercola

and Ioannis Terezakis

Defendant(s): Commission of the European Communities

29.10.2005

EN

Official Journal of the European Union

C 271/21

Form of order sought

Action brought on 12 August 2005 — ASTEC Global
Consultancy/Commission

— The annulment of the Commission Decision of 2 May 2005
received by the Applicants on 31 May 2005 refusing to
open an in-depth investigation of the costs and revenues of
AIA SA related to the provision of passenger security
facilities and car parking
services, passenger
services in order to establish whether the charges levied by
the Athens International Airport SA constitute an abuse of
a dominant position;

terminal

— an order that the costs of, and occasioned by these proceed-

Parties

ings be borne by the Respondent.

(Case T-310/05)

(2005/C 271/42)

Language of the case: English

Pleas in law and main arguments

The applicants are individual users of the Athens International
Airport of Spata. They contest the Commission's final Decision
pursuant to Article 7(2) of Regulation 773/2004 (1) not to
open an in-depth investigation of the allegedly excessive airport
charges levied by Athens International Airport with regard to
passenger security, passenger terminal facilities and car parking
services.

The applicants invoke an error of law and a manifest error in
the appreciation of facts in so far as the Commission consid-
ered that the passenger security controls do not constitute an
economic activity within the meaning of Article 82 EC and
that
the car parking services do not constitute a relevant
market.

The applicants further allege that the Commission did not carry
out a proper comparison of Athens International Airport of
Spata's costs and revenues related to the provision of security
services, passenger terminal facilities and car parking services
as it did not verify the accuracy and substance of the informa-
tion supplied by Athens International Airport of Spata.

Furthermore, the applicants submit that the Commission made
an error of law by not identifying (i) the use of different rates
for passenger terminal
facility charges on international and
domestic flights and (ii) the levying of a terminal facility charge
and a security charge on scheduled flights which are not levied
on charter flights.

Finally, the applicants invoke a violation of Article 253 EC in
that the Commission did not indicate the costs and revenues of
Athens International Airport of Spata on which it based its
conclusion that Athens International Airport of Spata does not
engage in excessive pricing.

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty, OJ L 123 of 27 April 2004, p. 18.

Applicant(s): ASTEC Global Consultancy Limited (Dublin,
Ireland) [represented by: B. O'Connor, solicitor and I. Carreño,
lawyer]

Defendant(s): Commission of the European Communities

Form of order sought

— Annul

the European Commission's Decision of 25 July
2005 (Reference no. AIDCO/F3/ACH D (2005) 19574),
rejecting the applicant's application to participate in Lot 3
of
the Commission procurement procedure EuropeAid//
119860/C/SV multi;

— order the Commission to pay the costs.

Pleas in law and main arguments

of

the Commission

The applicant, acting as consortium leader, applied on 15 April
2005 for Lot 3 of the Framework contract in the context of a
re-launch
procedure
EuropeAid//119860/C/SV/multi. One of the other members of
the applicant's consortium was Austroconsult Ges.m.b.H. That
company was also a partner in another consortium applying
for the same lot. On 31 May 2005 Austroconsult formally
withdrew from that other consortium.

procurement

By the contested Decision the Commission refused to short-list
the applicant's application on the grounds that
it did not
comply with the Procurement Notice since Austroconsult was
also present in another application.

In support of its request to annul the contested Decision the
applicant contends that
the Commission infringed essential
procedural requirements in procurement procedures, since any
conflict of interest due to Austroconsult's participation in two
from the
consortiums had been resolved by its withdrawal
other consortium. In the same context, the applicant alleges in
the alternative that Austroconsult could not have been consid-
ered a valid member of the other consortium, since its formal
letter in the application package was not dated.

The applicant further alleges that the Commission infringed the
principles of equal treatment, sound administration and due
diligence, as it failed to investigate Austroconsult's withdrawal
from the other consortium, if it had doubts about it, and failed
to inform the applicant of its concerns. The applicant considers
that its exclusion without any further clarification was dispro-
portionate and in violation of good administration.