Case T-266/07: Action brought on 9 July 2007 — Air One SpA v Commission
Date: 2007-09-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), air law, air transport, airline, carrier, public service

C 211/54

EN

Official Journal of the European Union

8.9.2007

4. Manifest errors of assessment

In support of its action, the applicant submits the following
pleas in law:

The applicant asserts that the Commission made manifest errors
of assessment in that, first, it selected a method at macroeco-
nomic level and did not assess the stocks that had actually
arisen in the Member States and, second, when assessing specific
arguments of the parties it did not have regard to the specific
and objective circumstances obtaining in the Republic of
Lithuania in which national stocks arose in the milk sector.

(1) Commission Decision 2007/361/EC of 4 May 2007 on the
determination of surplus stocks of agricultural products other than
sugar and the financial consequences of their elimination in relation
to the accession of
the Czech Republic, Estonia, Cyprus, Latvia,
Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2007
L 138, p. 14).

Action brought on 9 July 2007 — Air One SpA v
Commission

(Case T-266/07)

(2007/C 211/101)

Language of the case: Italian

— Manifest error of appreciation and illogical and contradictory
statement of reasons. The applicant submits first of all that
the Commission — by requiring the Italian Government to
allow all air carriers who intend to respect the PSO to
operate the routes in question, regardless of the period in
which they notified their intention to commence service
provision and whether or not notification was sent during
or after the 30-day period set in the Decrees — has erred in
its assessment of
the scheme introduced by the Italian
Government in the light of the reasoning and objectives of
the relevant Community rules. In particular the applicant
claims that Article 4 of Regulation No 2408/92 obliges
Member States to achieve the objective of territorial conti-
nuity by means of the imposition of public service obliga-
tions which, although they represent an exception to the
principle of free access for Community carriers to intra-com-
munity routes, nonetheless respect the principle of propor-
tionality and therefore restrict as far as possible the conces-
sion of exclusive rights and/or financial compensation. In
the applicant's opinion, the Italian Government has fully
complied with the spirit of the Community legislation, given
that setting a mandatory period for the ‘first phase’ of the
procedure of imposing public service obligations:

— encourages the submission of offers from carriers and
the allocation by the State of the relevant public service
obligations in the course of that ‘first phase’, and

Parties

Applicant: Air One SpA (represented by: M. Merola and P. Ziotti,
lawyers)

Defendant: Commission of the European Communities

— restricts the possibility of passing to the ‘second phase’
in which the Government would be obliged to grant, by
means of invitation to tender, exclusive rights, with the
possibility of taking responsibility for the relevant finan-
cial compensation.

Form of order sought

to the extent

— Annul Commission Decision C (2007 1712) of 23 April
2007 on public service obligations on certain routes to and
from Sardinia,
it requires the Italian
Government to allow all air carriers who accept the relevant
public service obligations (PSO) to operate routes between
Sardinia and the mainland,
irrespective of whether their
acceptance is made before or after expiry of the period of
30 days laid down in the national legislation (Article 1(a) of
that Decision);

that

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

Pleas in law and main arguments

the

applicant

requests, under

The
fourth paragraph of
Article 230 EC, the annulment of Article 1(a) of Commission
Decision C (2007 1712) of 23 April 2007 on public service
obligations on certain routes to and from Sardinia, under
Article 4 of Council Regulation No 2408/92 on access for Com-
munity air carriers to intra-Community air routes.

— It is moreover obvious — notwithstanding what is implicitly
claimed by the Commission — that competition between air
carriers on routes burdened by public service obligations
cannot be carried on in the same way as that found on
routes free of such obligations. In as much as PSO schemes
presuppose that problems of profitability are a feature of the
routes in question,
that no carrier would
choose to operate such routes, in a manner which met the
public
is
in normal market
therefore necessary to introduce safeguard mechanisms for
law-abiding and diligent carriers.

to the extent

conditions:

interest,

it

— The applicant claims further that the regulatory framework
prescribed by the Commission is discriminatory, since the
elimination of
the mandatory period for acceptance of
public service obligations in the ‘first phase’ is to the advan-
tage principally of carriers which have significant market
power, allowing them to offer for the PSO routes after
expiry of
the period, when competitors have submitted
offers, with the primary objective of taking market share
from those competitors.

8.9.2007

EN

Official Journal of the European Union

C 211/55

— Lastly,

in the

the Commission's
applicant's opinion,
reasoning is vitiated by an error of
law relating to the
characteristics of the procedure of imposing public service
obligations. In that respect, the applicant submits that appli-
cation of a non-mandatory term would have the effect of
prolonging indefinitely the ‘first phase’ of the procedure,
which is illogical, and inconsistent with the declaration of
the Commission itself to the effect that the procedure for
imposition of public service obligations, while unitary,
consists of two phases.

Action brought on 23 July 2007 — Martin v Parliament

(Case T-276/07)

(2007/C 211/102)

Language of the case: French

Parties

Applicant: Hans-Petter Martin (Vienna, Austria) (represented by:
É. Boigelot, lawyer)

Pleas in law and main arguments

in his capacity as Member of

Following an investigation concerning the secretarial allowances
granted to the applicant
the
European Parliament, the OLAF (European Anti-Fraud Office)
drew up a report finding certain irregularities. On the basis of
that report, the Secretary-General of the European Parliament
adopted the contested decision of 10 May 2007, by which it
decided that the sums which had been paid unduly to the appli-
cant were to be reimbursed by him pursuant to Article 27(3) of
the Rules governing the Payment of Expenses and Allowances to
Members of the European Parliament.

The applicant relies on four pleas in law in support of his
action.

The first plea alleges incorrect and inaccurate application of the
Rules governing the Payment of Expenses and Allowances to
Members of the European Parliament, in particular Articles 14
and 27(3) thereof.

The second plea alleges an error of assessment as to the rele-
vance of the supporting documents provided by the applicant.

Moreover, the applicant relies on a plea alleging infringement of
Council Regulation No 1605/2002 of 25 June 2002 on the
Financial Regulation applicable to the general budget of the
European Communities (1) and infringement of the principles of
proportionality and non-discrimination.

Lastly, the applicant puts forward a plea alleging breach of the
principle audi alteram partem and of the rights of the defence.

Defendant: European Parliament

(1) OJ 2002 L 248, p. 1.

Form of order sought

— Annul the decision of 10 May 2007 taken by the Secretary-
General of the European Parliament, notified on 14 May
2007, according to which it was decided that a certain sum
had been paid unduly to the applicant and that, pursuant to
Article 27(3) of
the Rules governing the Payment of
the European
Expenses and Allowances to Members of
Parliament, that sum was to be recovered from the appli-
cant;

— If necessary, annul the decision of 13 June 2007 originating
from the Director-General of
for
Finance of the European Parliament, taken pursuant to the
decision of 10 May 2007, putting the applicant on formal
notice to pay the aforementioned amounts or to propose a
written clearance plan accepted by the Parliament within
30 days of that decision;

the Directorate-General

— Annul,

if necessary and where applicable, all decisions
implementing the aforementioned decisions which might
arise in the course of the proceedings;

Appeal brought on 18 July 2007 by Luigi Marcuccio against
the order of the Civil Service Tribunal of 11 May 2007 in
Case F-2/06, Luigi Marcuccio v Commission

(Case T-278/07 P)

(2007/C 211/103)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase,
Cipressa, avvocato)

Italy)

(represented by G.

— In any event, order the defendant to pay the costs.

Other party to the proceedings: Commission of
Communities

the European