Case T-40/07 P: Appeal brought on 14 February 2007 by José António de Brito Sequeira Carvalho against the judgment of the Civil Service Tribunal delivered on 13 December 2006 in Case F-17/05, de Brito Sequeira Carvalho v Commission
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: United Kingdom, appeal, bonus payment, equal pay, gender equality, interpretation of the law, part-time employment, seniority, wage determination

C 82/46

EN

Official Journal of the European Union

14.4.2007

Pleas in law and main arguments

The present action is brought against the same decision that is
contested in Case T-38/07 Shell Petroleum and Others v Commis-
sion.

ENI considers the contested decision to be unlawful in that it
imputes liability to it solely on the ground of its role as the
head of the group which controls the entire share capital of the
company that has been held liable for the alleged collusion
complained of. In those circumstances, the applicant submits
that:

— the Commission has based its decision essentially on an a
presumption of strict liability connected to ownership struc-
ture that is not borne out and is contrary to the principles
laid down by practice and in Community case-law relating
to the application of Article 81 EC in connection with
groups of companies. Such an approach also breaches the
basic principle that liability and penalties must be specific to
the offender and the principle of legality, being the result of
clear errors of assessment of the factual material provided by
ENI to rebut the Commission's presumption. In this connec-
tion, the Commission failed properly to state the reasons for
its assessment, in breach of the requirement laid down in
Article 253 of the EC Treaty.

the principle of

— moreover, the contested decision does not even take into
the limited liability of capital
account
companies to be found in company law that is common to
the laws of all the Member States, to international legal prac-
tice and to Community law itself, an approach which, at the
same time, appears to be inconsistent with the criteria laid
down for the implementation of Community competition
rules in cases involving succession/transfer. The contested
decision similarly fails totally to provide reasons in respect
of those issues.

ENI therefore seeks the annulment of or, at least, a considerable
reduction in the fine imposed, given that the Commission:

— has failed to assess the impact on the market concerned of

the offending conduct allegedly established;

— improperly established the aggravating circumstance of
repeated infringement,
to decisions
under Article 81 EC dating back many years which did not
in any way concern the applicant, even by virtue of its role
as head of a group.

referring, moreover,

— moreover, by erroneously excluding Syndial from the addres-
sees of the contested decision, contrary to the criteria laid
infringed Article 23 of Regulation
down by case-law,
No 1/2003, failing to take account of that company's turn-
over in that connection.

Appeal brought on 14 February 2007 by José António de
Brito Sequeira Carvalho against the judgment of the Civil
Service Tribunal delivered on 13 December 2006 in Case
F-17/05, de Brito Sequeira Carvalho v Commission

(Case T-40/07 P)

(2007/C 82/98)

Language of the case: French

Parties

Appellant:
Belgium) (represented by O. Martins, lawyer)

José António de Brito Sequeira Carvalho (Brussels,

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— declare this appeal admissible and well founded;

— order the Commission to produce a file containing all the
documents concerning the applicant in his administrative
file held at the Investigation and Disciplinary Office of the
Commission, the medical service and in any other place
starting with the procedural documents pertaining to the
original proceedings on 2 February 2001 relating to alleged
evidence of defamatory acts attributed to the applicant;

— order the Commission to state the legal basis for the initia-
tion of a medical assessment of the appellant's mental health
by a Commission official immediately upon his appointment
in an administrative investigation into the alleged defama-
tion, and provide a list of documents from the original
proceedings;

— annul the judgement of the Civil Service Tribunal of the

European Union in Case F-17/05;

— declare the medical assessment which was substituted for
the administrative proceedings still pending since 2001 to
be illegal;

— declare that there has been a breach of the principle that a
time should be observed in the

reasonable period of
proceedings, which have not yet been closed;

— declare, on the grounds of

lack of
reasoning and non-existence, the act of a Commission offi-
cial of 18 June 2004 to be void and further declare that it is
not imputable to the appellant;

jurisdiction,

lack of

— declare both that the Appointing Authority's act of 28 June
2004 is legally non-existent, and that it cannot be raised
against the appellant, to whom it was never communicated;

— declare that a parallel file containing false information of a
personal nature adversely affecting the appellant is kept by
the Commission;

14.4.2007

EN

Official Journal of the European Union

C 82/47

— declare the act of a doctor of 13 July 2004 prohibiting the
appellant from access to the Commission's buildings void
and illegal on the grounds that it is not a decision of the
Appointing Authority;

— declare the act of a Commission official of 22 September
2004 purporting to extend the appellant's medical leave by
six months and other subsequent acts referring to earlier
documents by an official of the Appointing Authority of
June 2004 void;

— the remainder of the claims before the first court;

— order the Commission to pay the costs.

Pleas in law and main arguments

In his appeal, the appellant claims that the Tribunal committed
an error by founding its decision on an incorrect legal basis,
namely Article 59 of
the Staff Regulations on compulsory
medical leave, whereas, the Commission infringed Article 86 of
the Staff Rules and Annex IX, together with the texts which
regulate the conduct of administrative investigations and disci-
plinary proceedings. Furthermore, the appellant argues that the
Tribunal violated his rights of defence and infringed Article 6 of
the European Convention on Human Rights and the principle
of the right to a fair trial by hearing and determining the case
on the basis of an incomplete file and by failing to give a ruling
on the alleged existence of a parallel file. The appellant further
claims that the Tribunal has infringed Article 8 of the European
Convention on Human Rights by hearing and determining the
case on the basis of false evidence. Furthermore, the appellant
criticises the Tribunal for failing to adopt a position in the
contested judgment on his application to reopen the proceed-
ings. The applicant also submits that the Tribunal unlawfully
refused to draw the legal
inferences from the alleged lack of
competence of the authority which issued the decision to place
him on compulsory medical leave which the Tribunal should,
the appellant argues, have declared non-existent on the ground
of lack of competence and lack of reasoning.

Action brought on 16 February 2007 — IPK International
— World Tourism Marketing Consultants v Commission

(Case T-41/07)

(2007/C 82/99)

Language of the case: German

Form of order sought

The applicant claims that the Court should

— annul

the decision of

the Commission of

the European
Communities of 4 December 2006 (C (2006) 6452) on the
recovery of payments in the amount of EUR 318 000
together with default interest;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant contests the Commission's decision C (2006)
6452 of 4 December 2006 on the recovery of advance
payments received by the applicant for the ECODATA project
before the cancellation of the decision to award the grant. The
decision was made pursuant to Article 256 EC.

The cancellation of the decision to grant a subsidy for the crea-
tion of a databank on ecological tourism in Europe was made
by decision of the Commission of 13 May 2005 and was chal-
lenged by the applicant before the Court of First Instance (see
Case T-297/05).

The applicant argues in support of its claim that the contested
decision is unlawful. It derives from an unlawful cancellation
decision, the unlawfulness of which necessarily extends to the
contested decision. Furthermore,
the contested decision is a
unilateral measure, although the legal claim arising from that
decision is contractual in nature and can therefore be pursued
only by means of a civil claim before the competent national
courts of a Member State.

Action brought on 16 February 2007 — Dow Chemical
and Others v Commission

(Case T-42/07)

(2007/C 82/100)

Language of the case: English

Parties

Applicants: The Dow Chemical Company (Midland, United Sates
of America), Dow Deutschland Inc.
(Schwalbach, Germany),
Dow Deutschland Anlagengesellschaft mbH (Schwalbach,
Germany), Dow Europe GmbH (Horgen, Switzerland)
(repre-
sented by: D. Schroeder, P. Matthey, T. Graf, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant:
Consultants GmbH (Munich, Germany)
C. Pitschas, lawyer)

IPK International — World Tourism Marketing
(represented by:

Form of order sought

Defendant: Commission of the European Communities

to annul the decision insofar as it relates to it;

— The Dow Chemical Company respectfully requests the Court