Case T-57/07: Action brought on 26 February 2007 — E.ON Ruhrgas and E.ON Földgáz Trade v Commission
Date: 2007-04-28
Institutions: Court of First Instance
Subjects: European Commission, Hungary, action for annulment (EU), award of contract, economic concentration, gas, merger control

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.