Case T-267/08: Action brought on 9 July 2008 — Région Nord-Pas-de-Calais v Commission
Date: 2008-07-09
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), aid for restructuring, company in difficulties, control of State aid, rail transport, vehicle on rails

27.9.2008

EN

Official Journal of the European Union

C 247/13

Defendant: Commission of the European Communities (repre-
sented by: N. Bambara and E. Manhaeve, agents and by P.
Wytinck, lawyer)

Re:

interim measures, essentially to permit

the
Application for
Centre de langues à Louvain-la-Neuve et
-en-Woluwe (CLL
Centres de Langues) to participate in the tendering procedure
ADMIN/D1/PR/2008/004 regarding the
‘Language
training for staff at the European Union (EU) institutions, bodies
and agencies in Brussels’ and to suspend the Commission's deci-
sion to exclude it until the Court has ruled on the action for
annulment of that decision.

contract

Operative part of the order

1. The application for interim measures is rejected.

2. Costs are reserved.

Appeal brought on 9 July 2008 by Petrus Kerstens against
the judgment of the Civil Service Tribunal delivered on
8 May 2008 in Case F-119/06, Kerstens v Commission

(Case T-266/08 P)

(2008/C 247/25)

Language of the case: French

Parties

Appellant: Petrus Kerstens (Overijse, Belgium) (represented by C.
Mourato, lawyer)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— Annul the contested judgment;

Payment of
Individual Entitlements altering the organisation
chart of that office, inasmuch as that decision had the effect of
reassigning the appellant, then Head of the ‘Resources’ unit, to a
research position and (ii) damages in compensation for the
damage allegedly suffered.

In support of his action, a ground of appeal relied on by the
appellant is that the Tribunal distorted the clear sense of the
facts and the evidence and committed an error of
law in
applying Article 7 of the Staff Regulations and the regulations
on disciplinary measures and misuse of powers in that the
Tribunal concluded that there was no infringement of Article 7
on the basis of inaccurate findings of fact.

The appellant further claims that the Tribunal did not provide
an adequate statement of reasons in the contested judgment in
respect of the assessment made by the Office for Administration
and Payment of Individual Entitlements of the interests of the
service and in respect of the creation of an additional research
department in the light of the Office's chronic shortage of staff.

Thirdly, the appellant considers that his rights of defence were
infringed, inasmuch as the reasoning of the Tribunal on several
points was based on the appellant's career development report
for the period from 1 January to 31 December 2006, lodged for
the first time by the Commission at the hearing, and the appel-
lant had no opportunity to express his point of view in relation
to that reasoning.

Action brought on 9 July 2008 — Région Nord-Pas-de-
Calais v Commission

(Case T-267/08)

(2008/C 247/26)

Language of the case: French

Parties

Applicant: Région Nord-Pas-de-Calais
Cliquennois and F. Cavedon, lawyers)

(represented by: M.

— refer the case back to the European Union Civil Service

Defendant: Commission of the European Communities

Tribunal;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this appeal the appellant seeks the annulment of the judg-
ment of the Civil Service Tribunal (the Tribunal) of 8 May 2008
in Case F-119/06 Kerstens v Commission dismissing the appel-
lant's action seeking (i) annulment of the decision of 8 December
the Office for Administration and
2005 of

the Board of

Form of order sought

— annul the decision C (2008) 1089 final of the Commission
of the European Communities of 2 April 2008, concerning
State Aid No C 38/2007 (ex NN 45/2007) implemented by
France in favour of Arbel Fauvet Rail SA;

— order the Commission of the European Communities to pay

the costs.

C 247/14

EN

Official Journal of the European Union

27.9.2008

Pleas in law and main arguments

Form of order sought

seeks

applicant

the
of
annulment
the Commission of

The
the
decision
the European
C(2008) 1089 final of
Communities of 2 April 2008 by which the Commission
declared incompatible with the common market the State aid
granted by the applicant and the Communauté d'agglomération
du Douaisis in favour of Arbel Fauvet Rail SA in the form of
advances repayable at an annual rate of interest of 4,08 % corre-
sponding to the Community reference rate applicable when the
loan was granted. The Commission considered that, taking into
account its financial standing, Arbel Fauvet Rail SA would not
have been able to obtain funds on such favourable terms in the
financial market.

in part,

The applicant claims first that the Commission committed a
manifest error of assessment and disregarded its obligation to
state reasons, inasmuch as it considered that the source of the
funds was,
the Communauté d'agglomération du
Douaisis and did not take account of the specific legal features
of the Communauté d'agglomération which is a public institu-
tion of intercommunity cooperation endowed with administra-
tive and budgetary autonomy in relation to the towns and
communities which are members of it. The applicant considers
that the aid granted is consequently not attributable to the State.

The applicant further claims that the Commission committed
errors of assessment (i) by describing Arbel Fauvet Rail SA as a
firm in difficulty and (ii) by considering that Arbel Fauvet Rail
SA could not have obtained the operative rate of interest in
normal market conditions.

The applicant claims in addition that the Commission did not
conduct its examination of the case with the required diligence,
inasmuch as it did not specify either the amount of the aid to
be recovered, nor the value of the aid and it did not provide any
evidence capable of justifying an increased interest rate to be
applied to the repayable advances because of a situation of par-
ticular risk in relation to Arbel Fauvet Rail SA.

Lastly, the applicant relies on an infringement of the principle
that both parties should have the right to be heard, since the
applicant's views were not heard during the administrative
procedure.

Action brought on 11 July 2008 — Land Burgenland v
Commission

(Case T-268/08)

(2008/C 247/27)

Language of the case: German

Parties

— Pursuant to Article 231(1) EC, annul Commission Decision
C(2008) 1625 final of 30 April 2008 (No C 56/2006, ex
NN 77/2006 — Privatisation of the Bank Burgenland) in its
entirety;

— Pursuant to Article 87(1) of the Rules of Procedure of the
Court, order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1625
final of 30 April 2008 in which the Commission decided that
the State aid which Austria granted in contravention of Article
88(3) EC to the Versicherungsgesellschaft Grazer Wechselseitige
Versicherung AG and the GW Beteiligungserwerbs- und -verwal-
tungs-GmbH in the context of the privatisation of the HYPO
Bank Burgenland AG is incompatible with the common market.

The applicant makes the following pleas in law in support of its
action:

— erroneous application of Article 87(1) EC by the Commis-
sion when it fixed the market price, as a tender procedure is
not mandatory;

— erroneous application of Article 87(1) EC by the Commis-
sion as a result of the infringement of existing Commission
practice;

— erroneous application of Article 87(1) EC by the Commis-
sion since a private seller would also have had to predict
that the Austrian Financial Market Authority would reject
the bidder which made the highest bid;

— erroneous application of Article 87(1) EC by the Commis-
sion since the applicant should have been allowed to take
into account the legal guarantee (‘Ausfallhaftung’) for certain
liabilities of the privatised bank in its decision to award aid;

— erroneous application of the private vendor principle by the
Commission when assessing the influence of the legal guar-
antee on the decision to sell;

— erroneous application of Article 87(1) EC by the Commis-
sion as a result of mistaken application of the burden of
proof or of the obligation to submit evidence in a tender
procedure;

Applicant: Land Burgenland (represented by: U. Soltész and C.
Herbst, lawyers)

Defendant: Commission of the European Communities

— erroneous application of Article 87(1) EC by the Commis-
sion since the tender by the bidder with the highest offer
cannot operate as the basis for the determination of the
market price;