Case T-229/06: Action brought on 24 August 2006 — Kretschmer v Parliament
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Parliament, action for annulment (EU), allowances and expenses, consultancy, labour mobility, lawyer, servant (EU)

C 294/50

EN

Official Journal of the European Union

2.12.2006

Action brought on 24 August 2006 — Kretschmer v
Parliament

(Case T-229/06)

(2006/C 294/105)

Language of the case: French

— order the defendant to pay the applicant default interest on
the sums referred to at (i) and (ii) from the respective due
dates until the date of actual payment. The interest rate
must be the rate fixed by the European Central Bank for
principal refinancing operations applicable for the period in
question, increased by two points;

— order the defendant to pay the token sum of one euro as
compensation for non-material damage caused to the appli-
cant on account of the faults committed as a result of
delays in the management of the case;

Parties

— order the defendant to pay the costs in their entirety.

Applicant: Elfriede Kretschmer (Overijse, Belgium) (represented
by: G. Vandersanden, lawyer)

Defendant: European Parliament

Pleas in law and main arguments

Form of order sought

The Court is asked to:

— Annul the decision, brought to the applicant's notice on 14
June 2006, not to grant her payment of the daily subsis-
tence allowance in full with effect from 16 October 2003
and determining Overijse (Belgium) as her place of recruit-
ment;

— as a consequence, order the defendant to pay the following

sums:

— (i) by way of daily subsistence allowance:

— EUR 50 per day in respect of the period from 16
October 2003 to 30 April 2004 in accordance with
Article 12(1) of the Rules governing the secondment
of national experts to the European Parliament of 2
June 2003;

— EUR 84 per day in respect of the period from 1
May 2004 to 31 March 2005 in accordance with
Article 12(1) of the Rules governing the secondment
of national experts to the European Parliament of 3
May 2004;

— EUR 84,35 per day with effect from 1 May 2005 in
accordance with Article 15(2) of the Rules governing
the secondment of national experts to the European
Parliament of 7 March 2005;

— (ii) EUR 72,39 by way of supplementary monthly allow-
ance in accordance with Article 15(2) of
the Rules
governing the secondment of national experts to the
European Parliament of 7 March 2005;

The applicant is a national expert on secondment to the Euro-
pean Parliament. Her initial contract for the period from 16
October 2003 to 15 October 2004 was renewed for the period
from 16 October 2004 to 15 October 2005 and then again for
a further
two-year period from 16 October 2005 to 15
October 2007. By her application, she seeks annulment of the
decision, brought to her attention by e-mail on 14 June 2006,
not to grant her payment of the daily subsistence allowance in
full with effect from 16 October 2003 and determining Over-
ijse (Belgium) as her place of recruitment.

In support of her claim, the applicant alleges misinterpretation
and misapplication of the 2002, 2004 and 2005 Ruless on
national experts on secondment (SNEs) to the Parliament. The
applicant maintains that, at
the time when she was first
recruited, her place of residence was in Germany and not in
Belgium, which was considered by the Parliament authorities to
be her place of recruitment. She submits that her secondment
was approved by agreement between her authority from which
she came (the Minister-President of the Land of North-Rhine
Westphalia) and the Commission when she was first engaged
as a temporary agent for the period from 1 September 2002 to
31 July 2003, which, in her view, constitutes evidence of her
place of residence prior to her recruitment and at the times
when her contracts were renewed. The applicant also maintains
that the fact that she moved to Brussels to take up her duties as
SNE and registered as a temporary resident
in Brussels in
accordance with Belgian law, cannot be regarded as consti-
tuting a change in ‘place of residence’, which presupposes
fixed, permanent and settled establishment. In support of her
position, she relies on the fact that she is subject to fixed-term
recruitment for a maximum period of six years and that, at the
end of that period she will, in principle, return to Germany to
resume her duties as judge in the national courts. She therefore
considers that throughout the period of employment as SNE
her place of residence has been Germany and not Brussels.

2.12.2006

EN

Official Journal of the European Union

C 294/51

With regard to the claim for compensation,
the applicant
considers that the European Parliament exceeded a reasonable
period in responding to her requests for clarification and for a
review of her situation and, furthermore, that such conduct is
inconsistent with the requirements of the European Code of
good administrative conduct. The applicant seeks an order that
the defendant pay the token sum of one euro as compensation
for the non-material damage thus caused. The applicant also
seeks default interest on the sums due to her under the 2002,
2004 and 2005 rules on SNEs.

Secondly, the applicant alleges breach of Articles 87 and 88 EC
as result of the Commission's incorrect interpretation and appli-
cation of the judgment in Altmark (2). According to the appli-
cant, the Commission found, wrongly and on the basis of an
unfair criterion, that the ad hoc financing should be regarded
as State aid. The applicant submits that the criteria developed
in Altmark by the Court of Justice cannot be applied in the
present situation.
the Amsterdam Protocol on the
financing of public broadcasting (3) should be the point of
departure.

Instead,

Thirdly, the applicant alleges breach of Articles 87 and 88 EC,
Article 253 EC and Regulation No 659/1999 as result of the
lack of connection between the provision of the ad hoc finan-
cing and the overcompensation found by the Commission.
According to the applicant, the overcompensation connected
with the creation of reserves in the case of the broadcasting
institutions is not sufficiently attributable to the allocation of
the funds which the Commission refers to as ad hoc financing.

Fourthly, the applicant alleges breach of Articles 87 and 88 EC
as result of the fact that the Commission wrongly regards copy-
right royalties as State aid. Moreover, the ad hoc financing is
not
favouring the applicant as an undertaking within the
meaning of Article 87(1) EC and the public financing awarded
does not
lead to a distortion of competition within the
meaning of Article 87(1) EC.

Fifthly, the applicant alleges breach of Article 86(2) EC owing
to a lack of proportionality. Also when viewed in the light of
the Amsterdam Protocol on the financing of public broad-
casting, the Commission wrongly failed, after finding that there
was no distortion of competition, to balance the lack of nega-
tive effects of overcompensation against the interest of the
performance of a public task and the Community's interest in
general. The applicant submits that the Commission should
have also taken into account the limited nature of the Dutch
language area and the fact that the reserves that had arisen
would have led to expenditure in the foreseeable future and
would thus have disappeared.

Finally, the applicant alleges breach of the rules of procedure in
Article 88(2) EC and the rights of the defence as result of the
fact that the Commission extended the scope of the investiga-
tion in various respects.

(1) Council Regulation (EC) No. 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ 1999 L 83, p. 1).

(2) Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magde-
burg v Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747.
(3) Protocol annexed to the Treaty establishing the European Com-
munity concerning the system of public broadcasting in the
Member States.

Action brought on 4 September 2006 — Nederlandse
Omroep Stichting v Commission of the European Commu-
nities

(Case T-237/06)

(2006/C 294/106)

Language of the case: Dutch

Parties

Applicant: Nederlandse Omroep Stichting (represented by: J.J.
Feenstra and H.M.H. Speyart, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision, in particular Article 1(1)
and (2) and Articles 2 and 3 and the recitals on which they
are based;

— order the Commission to pay the costs

Pleas in law and main arguments

By its application the Nederlandse Omroep Stichting (NOS)
seeks the annulment of the Commission's decision of 22 June
2006 on ad hoc financing of the Dutch public broadcasters
(State aid C 2/2004 [ex NN 170/2003]).

In support of its application the applicant alleges, first, breach
of Article 88(1),
(2) and (3) EC and of Regulation No
659/1999 (1). It submits that the Commission has incorrectly
interpreted and applied the distinction between new and
existing aid. The ad hoc aid which is the subject of
the
contested decision was merely a part of the total system of
public financing of Dutch public broadcasters. The general
system has been recognised by the Commission as existing aid.
The cash flows, which the Commission refers to as ad hoc
financing, are provided on the same lines and should, according
to the applicant, therefore be regarded as existing aid.