Case C-348/06 P: Appeal brought on 17 August 2006 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 6 June 2006 in Case T-10/02 Girardot v Commission
Date: 2006-10-14
Institutions: Court of Justice
Subjects: European Commission, European official, General Court (EU), action for annulment (EU), appeal, job access, staff assessment

14.10.2006

EN

Official Journal of the European Union

C 249/5

Appeal brought on 7 August 2006 by La Poste against the
judgment of the Court of First Instance delivered on 7
June 2006 in Case T-613/97 Union française de l'express
(Ufex) and Others v Commission of the European Commu-
nities

(Case C-342/06 P)

(2006/C 249/10)

Language of the case: French

Parties

Appellant: La Poste (represented by: H. Lehman, avocat)

Other parties to the proceedings: Commission of the European
Communities, French Republic, Chronopost SA, Union fran-
çaise de l'express (Ufex), DHL International SA, Federal express
international (France) SNC, CRIE SA

Form of order sought

The applicant claims that the Court should:

— set aside the judgment of the Court of First Instance of 7
June 2006 inasmuch as it annulled Commission Decision
98/365/EC of 1 October 1997 concerning alleged State aid
granted by France to SFMI-Chronopost (1) in so far as it
finds that neither the logistical and commercial assistance
provided by La Poste to its subsidiary, SFMI-Chronopost,
nor the transfer of Postadex constitute State aid to SFMI-
Chronopost;

— order Union française de l'express, DHL International,
Federal express international and CRIE to pay the costs
incurred by La Poste before the Court of First Instance and
the Court of Justice.

Pleas in law and main arguments

The applicant puts forward three grounds of appeal.

By its first ground of appeal, the applicant alleges that the
Court of First Instance has infringed Article 6 EU and Article
6(1) of the European Convention on the Protection of Human
Rights and Fundamental Freedoms in so far as that Court did
not provide all of the necessary guarantees of impartiality as
the judge who acted as Rapporteur in the contested judgment
of 7 June 2006 was also the President of the Chamber which
adopted the judgment — set aside by the Court of Justice — in
Case T-613/97 Ufex and Others v Commission [2000] ECR II-
4055.

By its second ground of appeal, which is in two parts, the
applicant alleges that the Court committed several errors of law
and of procedure. First, the Court did not declare inadmissible
certain pleas in law which were not included in the initial
in infringement of Article
application and examined them,

48(2) of the Rules of Procedure of the Court of First Instance.
Second, that Court committed an error of
law in wrongly
taking the view that the transfer of an economic activity to a
subsidiary constitutes, essentially, State aid. The Court more
particularly misconstrued that concept by not
taking into
account the particular situation of the transfer to a subsidiary
of an economic activity previously carried out by the State and
by not establishing the effects on the market of the measure
examined.

By its third ground of appeal, the applicant finally alleges that
the Court imposed on the Commission an obligation to state
reasons which was excessive, in infringement of Article 88 EC,
which confers on the Commission a broad discretion in the
making of complex economic assessments, and Article 253 EC,
which does not require the grounds of a decision rejecting a
complaint to be as detailed as an accountant's report.

(1) OJ 1998 L 164, p. 37.

Appeal brought on 17 August 2006 by the Commission of
the European Communities against the judgment of the
Court of First Instance (First Chamber) delivered on 6
June 2006 in Case T-10/02 Girardot v Commission

(Case C-348/06 P)

(2006/C 249/11)

Language of the case: French

Parties

Appellant: Commission of the European Communities (repre-
sented by: D. Martin, F. Clotuche-Duvieusart, Agents)

Other party to the proceedings: Marie-Claude Girardot

Form of order sought

In its appeal, the appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of 6

June 2006 in Case T-10/02;

— order the Commission to pay Ms Girardot the sum of

EUR 23 917,40;

— order that the parties should bear their own costs in the
appeal proceedings and in the proceedings before the Court
of First Instance of the European Communities

C 249/6

EN

Official Journal of the European Union

14.10.2006

Pleas in law and main arguments

The appellant bases its appeal on a single plea, alleging infrin-
gement of Article 236 EC and of the conditions governing the
liability of the Commission. The appellant essentially claims
that the Court of First Instance wrongly interpreted the notion
of loss of an ‘opportunity’ to fill a post as being a notion
equivalent to the loss of a ‘guarantee’ to fill a post — thus
failing to have regard to the discretion traditionally accorded to
the Commission in recruitment — and, consequently, used an
erroneous method of calculation of the sum payable by the
Commission to compensate for the loss of an opportunity to
the
be recruited resulting from an unlawful decision of
Commission. Only actual and certain damage can give rise to
compensation. However,
in the present case, the only actual
and certain damage caused to the interested party is that which
results from the Commission's failure to consider her candida-
loss of
ture, and not that which results from a hypothetical
earnings.

Moreover, the Commission notes that the criterion of loss of
earnings used by the Court of First Instance to calculate the
damage to be compensated is itself uncertain because if the
interested party had, during the period in question,
taken
employment outside the Community Institutions which was
better paid than the post which she could have obtained in the
Commission, there would have been no loss of earnings to
compensate. The method used by the Court of First Instance
may therefore also lead to discrimination between candidates
for the same recruitment on the basis of whether or not they
occupy a post that is better paid than that to which they had
the opportunity of being recruited.

relating to the advertising and sponsorship of
tobacco
products (1) or by not informing the Commission of such
provisions, the Federal Republic of Germany has failed to
fulfil its obligations under Article 10 of that directive;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired
on 31 July 2005.

(1) OJ 2003 L 152, p. 16

Action brought on 25 August 2006 — Commission of the
European Communities v Grand Duchy of Luxembourg

(Case C-354/06)

(2006/C 249/13)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Hottiaux, F. Simonetti, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Action brought on 24 August 2006 — Commission of the
European Communities v Federal Republic of Germany

Form of order sought

(Case C-351/06)

(2006/C 249/12)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, acting as
Agents)

Defendant: Federal Republic of Germany

Form of order sought

The Court is asked to:

By its action, the applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations or
administrative provisions necessary to comply with Direc-
tive 2003/35/EC of the European Parliament and of the
Council of 26 May 2003 providing for public participation
in respect of
the drawing up of certain plans and
programmes relating to the environment and amending
with regard to public participation and access to justice
Council Directives 85/337/EEC and 96/61/EC (1), and,
in
any event, by failing to notify such provisions to the
Commission, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that Directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period within which Directive 2003/35/EC had to be trans-
posed expired on 25 June 2005.

— declare that, by not adopting the laws, regulations and
administrative provisions necessary to transpose Directive
2003/33/EC of the European Parliament and of the Council
of 26 May 2003 on the approximation of the laws, regula-
tions and administrative provisions of the Member States

(1) OJ L 156. p. 17