Case T-56/07 P: Appeal brought on 23 February 2007 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 14 December 2006 in Case F-122/05 Economidis v Commission
Date: 2007-04-28
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, appeal, appointment of staff, staff assessment

C 95/46

EN

Official Journal of the European Union

28.4.2007

Pleas in law and main arguments

xiii) the Commission failed to establish or hear Trade-Stomil as

to the intentional or negligent nature of the infringement;

The applicant seeks the annulment of Commission Decision C
(2006) 5700 final of 29 November 2006 in Case COMP/F/
38.638 — Butadiene Rubber and Emulsion Styrene Butadiene
Rubber, by which the Commission found that the applicant,
together with other undertakings, had infringed Article 81 EC
and Article 53 of the Agreement on the European Economic
Area by agreeing on price targets for the products, sharing
and exchanging
customers by non-aggression agreements
commercial
information relating to prices, competitors and
customers.

The applicant relies upon fourteen grounds in support of its
claims. According to the applicant:

i) the Commission infringed Article 81 EC, as it allegedly
failed to prove to the requisite standard that Trade-Stomil
participated in the cartel;

ii) the Commission infringed the duty to state reasons in
finding that the duration of Trade-Stomil's participation in
the cartel amounted to three months;

iii) the Commission is said to lack the jurisdiction which is
necessary to address a decision to Trade-Stomil under
Article 81(1) EC and Article 53 EEA agreement;

xiv) the Commission allegedly erred in calculating the fine.

Appeal brought on 23 February 2007 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 14 December 2006 in
Case F-122/05 Economidis v Commission

(Case T-56/07 P)

(2007/C 95/94)

Language of the case: French

iv) the Commission further infringed Article 81 EC finding
that Trade-Stomil was acting as a non-genuine agent of
Dwory;

Parties

v) the Commission infringed the duty to state reasons in
finding that Trade-Stomil was acting as a non-genuine
agent of Dwory;

vi) the Commission breached the principle of equal treatment
in setting the starting point of the fine based on Dwory
and Trade-Stomil's combined turnover;

vii) the Commission infringed the duty to state reasons by
fining Trade-Stomil on the basis of Trade-Stomil and
Dwory's sales turnover, rather than Trade-Stomil's turnover
alone;

viii) the Commission allegedly infringed the principle of
equality in calculating the starting point on Trade-Stomil,
as a mere agent with no control over prices or quantities,
in the same way as a supplier/producer;

ix) the Commission infringed the duty to follow self-imposed
rules by not taking into account Trade-Stomil's passive or
follow-my-leader participation in the cartel;

x) the Commission infringed the duty to follow self-imposed
rules by failing to reduce the fine for non-implementation;

Appellant: Commission of the European Communities (repre-
sented by: J. Currall and G. Berscheid, Agents)

Other party to the proceedings: Ioannis Economidis (Woluwé-St-
Etienne, Belgium)

Form of order sought by the appellant

— Set aside the judgment under appeal in so far as it upholds
the first two pleas in law alleging illegality of the appoint-
ment procedure and breach of Article 29(1) and Article 31
the Staff Regulations and annuls the appointment of
of
another person to the post of Head of Unit ‘Biotechnology
and applied genomics’ and, consequently, the rejection of
the applicant's candidature for that post;

— itself give judgment

in the dispute, uphold the pleas
submitted by the defendant at first instance and, accordingly,
dismiss the application in Case F-122/05;

xi) the Commission decision breached the principle of propor-

tionality in setting the fine;

— in the alternative, refer the case beck to the Civil Service

Tribunal for a decision on the remaining pleas;

xii) the Commission infringed the rights of defence by failing
to hear Trade-Stomil as to the basis on which it proposed
to assume jurisdiction extra-territorially;

— order the applicant at first instance to pay the costs of the
proceedings and also to bear his own costs before the Civil
Service Tribunal.

28.4.2007

EN

Official Journal of the European Union

C 95/47

Pleas in law and main arguments

Defendant: Commission of the European Communities

By the judgment of 14 December 2006 which the appellant
now seeks to have set aside, the Civil Service Tribunal (CST)
annulled the Commission's decision of 23 December 2004
appointing another candidate to a post as Head of Unit and,
consequently, rejecting the applicant's candidature.

In support of its application to have that judgment set aside, the
Commission raises three pleas in law, the first of which alleges
incorrect application of the Kratz (1) decision in the present case
in so far as the new rules applicable,
including the relevant
provisions of
the Staff Regulations and the Commission's
‘Middle Management’ decision (2), are different from those which
were applicable in Kratz, a consideration which the Tribunal
failed to take into account.

The second plea put
forward by the Commission alleges a
contradiction in the grounds of the judgment under appeal, in
that the Tribunal found, first of all, that the principle of separa-
tion of functions and grade was relevant, that the post could be
filled solely by transfer, the grade being automatically that of the
candidate chosen on the date of appointment, whereas it then
concluded that posts must be published by pairs of two grades.

if

the Commission contends that

Third,
the obligation to
publish posts as Head of Unit according to specific pairs of
grades, as imposed on the institutions by the judgment under
appeal, were to be upheld, the applicant at first instance would
not have an interest in bringing proceedings and his action
ought therefore to be dismissed as inadmissible. In the Commis-
sion's submission, the judgment under appeal thus exceeds the
subject-matter of the application at first instance.

(1) Case T-10/94 Kratz v Commission [1995] ECR II-1455.
(2) Commission Decision C (2004) 1597 of 28 April 2004 relating to
the middle management, published in Administrative Notices No 73/
2004 of 23 June 2004.

Action brought on 26 February 2007 — E.ON Ruhrgas and
E.ON Földgáz Trade v Commission

(Case T-57/07)

(2007/C 95/95)

Language of the case: English

Parties

Applicants: E.ON Ruhrgas International AG (Essen, Germany)
and E.ON Földgáz Trade Zrt. (Budapest, Hungary) (represented
by: G. Wiedemann and T. Lübbig, lawyers)

Form of order sought

— Annul the 4 paragraph at the bottom of page 1 of the deci-
sion by the European Commission (document No *30783)
dated 19 December 2006 and directed to E.ON Ruhrgas
International AG in Case M.3696 — E.ON/MOL; and annul
the decision by the European Commission (document No
*924) dated 16 January 2007 and also directed to E.ON
Ruhrgas International AG in Case M.3696 — E.ON/MOL;

— order the Commission to pay the costs incurred by the

applicants in the present proceedings.

Pleas in law and main arguments

By decision of 21 December 2005 the Commission declared,
subject to the applicant's compliance with certain conditions
and obligations, the acquisition of two Hungarian gas compa-
nies by the applicant E.ON Ruhrgas International AG compatible
with the common market and the functioning of the Agreement
on the European Economic Area.

As one of the obligations, the applicant E.ON Ruhrgas Interna-
tional AG undertook to organise and implement a gas release
programme on the Hungarian market. The initial auction price
was to be set at 95 % of the weighted average cost of gas
provided that the aggregate loss the applicants may incur as a
result of the final auction price being set below the weighted
average cost of gas does not exceed EUR 26 million.

In the contested letters the Commission indicated that the losses
made by the applicants in a given auction should be offset by
any profits made by the applicants in other auctions. The appli-
cants contest this and are of the opinion that losses which
results from the gas release auctions do not need to be offset by
potential profits that may derive from future auctions.

In support of their application, the applicants invoke two pleas
in law.

Firstly, the applicants submit that the Commission has no legal
basis for increasing the financial burdens and thereby subse-
quently change the legal obligations resulting from the Commis-
sion's decision of 21 December 2005.

Secondly, the applicants contend that the Rules of procedure of
the Commission (1) have been infringed in that neither have all
the members of the Commission deliberated on the content of
the two contested letters, nor has there been a proper delegation
of powers to the Directorate General of the Commission by
virtue of Article 14 of the said rules.

(1) OJ 2000 L 308, p. 26, as amended.