Case T-415/05: Action brought on  25 November 2005  — Hellenic Republic v Commission of the European Communities
Date: 2006-01-28
Institutions: Court of First Instance
Subjects: European Commission, Greece, State aid, action for annulment (EU), air transport, borrowing, hiring, redemption, transport company

28.1.2006

EN

Official Journal of the European Union

C 22/19

— order the defendant to pay the applicant default interest at
the rate of 10 % (ten per cent), with annual capitalisation
from 11 October 2004 until actual payment;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to the defendant's refusal to
reimburse 100 % of the medical expenses incurred by him.

The pleas and main arguments are those relied on in Case T-
18/04 Marcuccio v Commission (1).

In particular,
the applicant alleges absolute failure to state
reasons, manifest error of assessment and infringement of
Article 72 of the Staff Regulations and of the duty to have
regard to the welfare of officials, the duty of non-discrimination
and the principle of sound administration.

(1) OJ C 71 of 20.3.2004, p. 38.

Action brought on 8 November 2005 — A.S.TER v
Commission

(Case T-409/05)

(2006/C 22/36)

European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and
Commission documents,
(and annexes
to the
thereto) sent to the Commission on 21 February 2005, which
gave rise to an investigation which may lead to initiation of
formal infringement proceedings against the applicant.

complaint

Access was withheld on the basis that disclosure might have
had an adverse impact on the conduct of the investigation by
the Commission.

In support of its claims, the applicant alleges infringement of
Article 4(2) of Regulation No 1049/2001, of the principle audi
alteram partem and of the principles of transparency, coopera-
tion and participation in proceedings, and also lack of an
adequate statement of reasons.

It submits in that regard that there is, despite the defendant's
claim, no need to withhold distribution of documents relating
to the infringement proceedings in order to avoid undermining
the inquiries, but that, on the contrary, it is necessary for the
purpose of such inquiries for the procedure to be conducted
with the greatest transparency and cooperation, so that the
Municipality of Genoa and the applicant can produce the docu-
mentation required for conduct of the investigations.

Furthermore, since the applicant is a party to administrative
proceedings before the defendant,
the contested decision
infringes the principle audi alteram partem.

The applicant adds that objections to rights of access must be
interpreted restrictively and in the light of the principle entitle-
ment to information and the principle of proportionality.

Language of the case: Italian

(1) OJ L 145 of 31.5.2001, p. 43.

Parties

Applicant(s): Società A.S.TER S.p.A. (Genova, Italy) (represented
by: Lorenzo Acquarone and Daniela Anselmi)

Defendant(s): Commission of the European Communities

Action brought on 25 November 2005 — Hellenic
Republic v Commission of the European Communities

Form of order sought

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

— annul the contested measures and, as a result, grant rights
of access and therefore release a full copy of the complaint
and the annexes thereto;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present action, a limited liability company
most of whose capital is held by the Municipality of Genoa,
seeks annulment of the defendant's decision rejecting access,
under Article 7(e) of Regulation (EC) No 1049/2001 (1) of the

(Case T-415/05)

(2006/C 22/37)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: A. Samoni and P.
Milonopoulos)

Defendant: Commission of the European Communities

C 22/20

EN

Official Journal of the European Union

28.1.2006

Form of order sought

submits that the Commission's legal assessment is mistaken on
this point.

The applicant claims that the Court should:

— annul Commission Decision C(2005) 2706 final of 14

September 2005 in its entirety or otherwise in part;

— order the Commission to pay the costs.

Pleas in law and main arguments

When the Greek state airline Olympic Airways was privatised,
the new company Olympic Airlines (‘NOA’) began operating,
taking over the flying operations, while Olympic Airways —
Services S.A. (‘OA’), as the old company was renamed, retained
all other activities, principally ground services, maintenance
and aircraft repairs. In the contested decision, the Commission
held the grant to NOA and OA of State aid to be incompatible
with the Treaty, by reason of:

— payment by NOA, for the subleasing of aircraft, of rental
payments lower than those paid for head leases, causing
loss to the Greek State and to OA,

— overvaluation of NOA's assets at the time when it was set

up,

— payment of money to OA by the Greek State, and payment
by the latter, instead of OA, of certain loan instalments and
rental payments on leases,

— the continuous forbearance displayed by the Greek State
towards OA with regard to tax debts and social security
contributions.

By its action, Greece contests first of all the part of the decision
that relates to the rental payments for aircraft which NOA
pays. It maintains that there is no State aid and that therefore
the contested decision infringes Article 87(1) EC. According to
Greece, both OA and the Greek State acted as any well-advised
in addition, the rental payments
individual would act while,
made by NOA correspond to market prices.
In the same
context, Greece pleads that the duty to state reasons for the
contested decision has been infringed.

So far as concerns the part of the decision relating to the value
of NOA's assets, Greece considers that the Commission's assess-
ment was manifestly mistaken as regards quantification of the
assets of OA that were transferred to NOA and that
the
Commission's conclusions in this regard suffer from a lack of
reasoning. In any event, Greece considers that the Commission
also failed to state reasons with regard to the part of the
contested decision that relates to the conditions for rescue aid
and for application of Article 87(3) not being met, and also

Greece observes with regard to payment by the Greek State of
certain loan instalments and rental payments on leases that it
made those payments because of its liability as guarantor, on
the basis of guarantees which had been given before adoption
of a previous relevant Commission decision and are covered by
that decision. According to Greece, after payment of the sums
in question, the procedure provided for by Greek law for their
forced recovery from OA was followed. On the basis of those
the reasons stated in the
submissions, Greece pleads that
contested decision are inadequate,
in its view, to a
leading,
manifestly mistaken legal assessment.

So far as concerns the part of the decision that reaches the
conclusion that NOA is OA's successor, Greece sets out a series
of arguments to rebut the Commission's view and, on this
basis, pleads infringement of Articles 87(1) and 88(2) EC and a
failure to state reasons.

Greece further pleads infringement of the right to be heard and
of the principle of good administration, since it considers that
it was not given the opportunity to set out its views on the
study by the independent experts whom the Commission had
it pleads infringement of the principle of
instructed. Finally,
proportionality and a failure to state reasons,
since the
contested decision seeks the recovery of aid in respect of the
period from 2002 to 2004 from NOA too, although it began
to operate only on 11 December 2003.

Action brought on 29 November 2005 — ENDESA v
Commission

(Case T-417/05)

(2006/C 22/38)

Language of the case: Spanish

Parties

Applicant: ENDESA S. A. (represented by: M. Merola, M. Odrio-
zola, S. Baxter and M. Muñoz de Juan, lawyers, J. Flynn, Q. C.)

Defendant: Commission of the European Communities