Case T-444/05: Action brought on  21 December 2005  — Navigazione Libera del Golfo v Commission
Date: 2005-12-21
Institutions: Court of First Instance
Subjects: European Commission, access to EU information, action for annulment (EU), maritime transport, services of general interest, transport company

C 48/40

EN

Official Journal of the European Union

25.2.2006

By the first plea the applicant relies on the alleged infringement
of the principle of equal treatment and non-discrimination in
so far as the Commission imposed a requirement for length of
service of one year for the employees of each tenderer to be
assigned to the contract which, according to the applicant —
the current holder of the contract with long-serving employees
— placed it at a disadvantage vis-à-vis the other tenderers, who
could recruit people with the minimum experience and have
lower wage costs than those of the applicant.

By the second plea, the applicant claims that the Commission
infringed the provisions of Directive 2001/23/EC (1). That plea
has two parts: alleged irregularity in the tender accepted by the
Commission in that that tender did not guarantee the retention
of the applicant's employees nor, moreover, did it ensure that
all of their rights would be respected. The applicant alleges that
the decision to award taken by the Commission was illegal
from the time it was taken since the accepted tender involved
the infringement of employment law.

The third plea is based on an alleged infringement of the prin-
ciple of equal treatment in so far as the successful party, at the
time of submission of its tender, had privileged information in
relation to the applicant, in particular in relation to turnover
by client and activity, contracts and their expiry dates, and
analysis of their prices and costs, which had been obtained by
reason of
the merger with the applicant's former parent
company. In the applicant's opinion, this would have allowed
its competitor to prepare a more favourable tender compared
with that submitted by the applicant itself.

By its last plea, the applicant alleges infringement of the prin-
ciple of transparency and of the right of citizens to access
documents of the institutions in so far as the Commission
refused it information on the composition of the selection and
award committees.

The applicant also seeks, by relying on the principle of extra-
contractual liability, compensation for the harm which it claims
to have suffered by reason of the illegality of the Commission's
conduct in the tender award procedure for the contract at
issue.

(1) Directive 2001/23/EC of 12 March 2001 on the approximation of
the laws of
the Member States relating to the safeguarding of
employees' rights in the event of transfers of undertakings, busi-
nesses or parts of undertakings or businesses.

(2) Commission Decision of 28/05/2004 declaring a concentration to
be compatible with the common market (Case N IV / M. 3396 –
Group 4 Falck / Securicor (4064) pursuant to Council Regulation
(EEC) No 4064/89).

Action brought on 21 December 2005 — Navigazione
Libera del Golfo v Commission

(Case T-444/05)

(2006/C 48/77)

Language of the case: Italian

By the fourth plea, the applicant relies on the alleged infringe-
ment of the decision of Directorate General IV of the Commis-
sion of 28 May 2004 (2) and the rules aimed at ensuring undis-
torted competition in that, by the decision challenged in the
present application, the Commission permitted the group to
which the successful
tenderer selected belonged to recover
assets which it was obliged to relinquish at the time of the
merger authorised by the decision of 28 May 2004.

Parties

The fifth plea is based on the alleged infringement of the obli-
gation to give reasons for the decision, the alleged infringement
of the transparency principle and the right of access to docu-
ments of the Community institutions. The applicant alleges that
the Commission, despite several written requests, send it only a
brief explanation, which was limited to comparative tables of
the tenders, of the reasons for its decision.

Applicant: Navigazione Libera del Golfo (NLG) (Naples, Italy)
(represented by: Salvatore Ravenna, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

the rules
The applicant also relies on the infringement of
applying to the award of the contract, a failure to take account
of the contract documents and a manifest error of assessment
in relation to the analysis and evaluation of the third qualitative
award criterion in relation to the basic first-aid and fire fighting
training of the security agents. It alleges that it has proof that
the tenderer selected by the Commission does not have all of
the operatives whom it proposed to assign to the performance
of the contract at issue.

— annul the decision of the Commission of 12 October 2005
refusing access to data and information concerning the
extra costs arising as a result of PSO (public service obliga-
tions) and payments to offset those costs in respect of the
services carried out by Caremar SpA on the Naples Bever-
ello-Capri route;

— order the Commission to pay the costs.

25.2.2006

EN

Official Journal of the European Union

C 48/41

Pleas in law and main arguments

Pleas in law and main arguments

The pleas in law and main arguments are similar to those put
forward in Case T-109/05 Navigazione Libera del Golfo v
Commission. (1)

It should, however, be stated that the contested decision in
Case T-109/05 is based on Article 4(2) of Regulation No
1049/2001, whereas the decision at issue in this case is based
on Article 4(4) and (5) of that regulation. Accordingly, it was
not Caremar that was consulted, as ‘third party author’ of the
documents/data to which access was requested, but rather it
was the Italian authorities, which did not issue the documents
of the case and had no concerns relating to commercial inter-
ests, that were consulted.

that consultation was carried out

in an artificial
Further,
manner, given that the Member States have exclusive compe-
tence together with a right of veto which is binding on the
Commission.

(1) OJ C 106 of 30.04.2005, p. 43.

Action brought on 19 December 2005 — Associazione
italiana del risparmio gestito and Fineco Asset Manage-
ment v Commission of the European Communities

(Case T-445/05)

(2006/C 48/78)

Language of the case: Italian

This action concerns the same decision as that challenged in
Case T-424/05 Italian Republic v Commission. (1)

In support of their pleas, the applicants allege:

— inadequacy and inconsistency of the contested decision, in
that it concerns, first, the existence of an economic advan-
tage which is selective, as it is not clear from its wording
what economic advantage is conferred by the tax measures
at issue and what beneficiaries there are. Secondly, the
statement of reasons for the decision is also to be regarded
as inadequate as to the existence of a distortion of competi-
tion which may affect trade between the Member States;

— infringement of Article 87(1) of the EC Treaty, since the
reduction in the tax applicable to the income of undertak-
ings for collective investment
in transferable securities
(UCITS) specialising in shares of small or medium-sized
capitalisation companies (SMCC) does not give rise to State
aid. In that regard it is claimed, in particular, that the tax
reduction in question constitutes an economic advantage
for all the relevant stakeholders, not a selective one for the
managers of the undertakings. In fact, all Italian and Com-
munity independent asset management companies (società
di gestione del risparmio; SGR) may manage UCITS and all
Italian or Community open-ended investment companies
(SICAV) may act as SICAV specialising in SMCC. Further,
even if the measures at issue were to result in an economic
advantage for UCITS, they would not, however, give rise to
State aid, given that the investment funds consist of collec-
tions of assets that do not exist as independent entities, do
not have their own management bodies and do not pursue
economic objectives, and accordingly have no organs
which can manifest intent. Finally, the tax measures at issue
do not constitute economic advantages of a selective nature
for the SMCC.

In the alternative, the applicants claim that:

Parties

risparmio gestito and
Applicants: Associazione italiana del
Fineco Asset Management SpA (Italy) (represented by: Gabriele
Escalar and Giuseppe Maria Cipolla, lawyers)

— the tax measures in question must be regarded as compa-
tible with the common market, pursuant to Article 87(2)(a)
of the Treaty; and

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

— annul Commission Decision No C(2005) 3302 of 6
September 2005 which brought proceedings C-19/2004 (ex
NN 163/03) to a close;

— order the defendant to pay the costs.

— the contested decision infringes Article 14 of Council Regu-
lation (EC) No 659/1999 of 22 March 1999 since recovery
was ordered from the investment vehicles in the form of
companies and from the undertakings managing the invest-
ment instruments that are established by contract.

(1) Not yet published in the OJ.