Case C-159/08 P: Appeal brought on 15 April 2008 by Isabella Scippacercola and Ioannis Terezakis against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 January 2008 in Case T-306/05: Isabella Scippacercola and Ioannis Terezakis v Commission of the European Communities
Date: 2008-04-15
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), airport, charges for use of infrastructure, dominant position

C 171/18

EN

Official Journal of the European Union

5.7.2008

Parties to the main proceedings

Applicant: E.H.A. Passenheim-van Schoot

Defendant: Staatssecretaris van Financiën

— Order that the costs of, and occasioned by these proceed-
ings, and the proceedings of the Court of First Instance, be
borne by the Commission.

Question referred

Pleas in law and main arguments

Must Articles 49 and 56 EC be interpreted to mean that, where
foreign savings balances or income therefrom are not disclosed
to the tax authority of a Member State, those articles do not
prevent that Member State from applying legislation which, to
compensate for
the lack of effective means of monitoring
foreign balances, provides for a recovery period of twelve years,
whereas a recovery period of five years applies in the case of
savings balances or income therefrom held in the Member State
where such effective means do in fact exist?

Appeal brought on 15 April 2008 by Isabella Scippacercola
and Ioannis Terezakis against the judgment of the Court of
First Instance (Fifth Chamber) delivered on 16 January
2008 in Case T-306/05: Isabella Scippacercola and Ioannis
Terezakis v Commission of the European Communities

(Case C-159/08 P)

(2008/C 171/31)

Language of the case: English

Parties

Appellants: Isabella Scippacercola, Ioannis Terezakis (represented
by: Mr B. Lombart, avocat)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

The appellants claim that the Court should:

— Set aside the judgment of the Court of First Instance in Case
T-306/05 Isabella Scippacercola and Ioannis Terezakis v
Commission of the European Communities dismissing their
application seeking to annul the Commission Decision dated
2 May 2005 taken pursuant to Article 7(2) of Commission
Regulation (EC) No 773/2004 of 7 April 2004 (1) notified
to the appellants on 6 February 2008 refusing to open an
in-depth investigation concerning the excessive charges
levied by the new Athens International Airport of Spata
holding a dominant position with respect to the:

(a) passenger security charge

(b) passenger terminal facility charge

(c) charges for car parking services

The appellants submit that the Court of First Instance failed to
establish that the Commission, by declining to examine AIA's
security, terminal facilities and car parking charges in relation to
their costs and embarking on inconclusive comparisons of
AIA's charges with those levied at other European airports not
providing competing services for the purposes of Article 82 EC,
infringed Community law as laid down in Case 27/76 United
Brands v. Commission and that the Court of First Instance
infringed Community law by failing to establish that
the
Commission, first, did not consider all relevant matters of fact
which existed at the time the contested decision was adopted as
required by case law C-119/97 Ufex and others v. Commission,
and, second, based its contested decision on materially incorrect
facts vitiated therefore by a manifest error of assessment and
misuse of powers.

It is argued that the Court of First Instance erred in law by not
finding that the Commission made an error of assessment when
it considered that the security checks did not constitute an
economic activity and that the car parking services did not
constitute a relevant market for the purposes of Article 82 EC.

With regard to the alleged error of law concerning the applica-
tion to passengers of a higher terminal facility charge for those
on intra-Community and international flights than for those on
domestic flights, and the application to passengers on scheduled
flights of a terminal facility charge and a security charge which
are not applied to those travelling on charter flights, the appel-
lants maintain that the Court of First Instance failed to establish
that the Commission declined to take care to ensure that the
principle of non discrimination was not infringed by AIA's prac-
tices.

first, by disregarding the complainants'

Finally, it is submitted that the Court of First Instance failed to
rule that the Commission departed from established rights and
procedures,
figures
extracted from official sources showing an excessive pricing by
AIA, second, by embarking on a comparison between Spata
charges and those levied at other European airports which were
irrelevant for the purposes of Article 82 EC and, third, by
carrying out a request for information sent to AIA in which it
failed, inter alia, to examine the construction cost of the airport
and the incorporation expenses and set up costs of AIA.

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ L 123, p. 18).