Case T-340/08 P: Appeal brought on 14 August 2008 by Marianne Timmer against the order of the Civil Service Tribunal delivered on 5 June 2008 in Case F-123/06 Timmer v Court of Auditors
Date: 2008-08-14
Institutions: Court of First Instance
Subjects: action by staff, appeal, indemnification, personnel administration, professional career, staff assessment

8.11.2008

EN

Official Journal of the European Union

C 285/43

Pleas in law and main arguments

Other party to the proceedings: Court of Auditors of the European
Communities

The applicants challenge the Commission's decision to reject
their tender submitted in connection with the call for tenders
procedure
‘DIGIT/R2/PO/2007/024 —
Managed services provision’ (OJ 2007 S 159 — 197776) and
the decision not to award the contract in the absence of satisfac-
tory tenders and to open the negotiated procedure.

concerning contract

In support of their application, the applicants claim, first of all,
that the contested decision was not taken in compliance with
the rules for the conferral of powers within the Commission,
since the decision was taken by an ‘Acting Head of Unit’. The
applicants take the view that it was not established that the
author of the measure was in fact entitled to adopt such a deci-
sion in the Commission's name.

Secondly, the applicants submit that the Commission infringed
its obligation to state reasons by not setting out, in its decision,
the grounds on which it considered that certain prices in the
applicant's tender were unusually low and that the tender did
not comply with the relevant legal provisions in the event of
performance of the contract in Brussels or Luxembourg.

Finally, the applicants consider that the Commission infringed
the procedure for checking that the prices were lawful, in so far
as (i) the Commission excluded the applicant's tender on the
basis of
the procedure in respect of unusually low prices,
whereas the tender was financially sound, (ii) the Commission
did not take into account the reasons provided by the applicants
and (iii) the contested decision was not based on an accurate
account of the facts.

Appeal brought on 14 August 2008 by Marianne Timmer
against the order of the Civil Service Tribunal delivered on
5 June 2008 in Case F-123/06 Timmer v Court of Auditors

(Case T-340/08 P)

(2008/C 285/80)

Language of the case: French

Parties

Form of order sought by the appellant

— Annul the order of 5 June 2008 in Case F-123/06 Marianne

Timmer v Court of Auditors;

— Uphold the claim for compensation for loss suffered;

— Uphold the claim for costs against the Court of Auditors.

Pleas in law and main arguments

By this appeal, the applicant seeks annulment of the order of
the Civil Service Tribunal of 5 June 2008 in Case F-123/06
Timmer v Court of Auditors whereby the Tribunal dismissed as
inadmissible her action claiming, first that the Tribunal should
annul her staff reports for the period 1984 to 1997 along with
the connected and/or
including that
appointing the reporting officer concerned to the position of
Head of the Dutch Unit in the Translation Department of the
Court of Auditors and, second, a claim for damages to compen-
sate for the loss allegedly suffered.

subsequent decisions,

In support of her appeal, the applicant relies on six pleas in law
alleging:

— distortion the facts capable of being inferred from the
evidence submitted to the Tribunal and error in assigning
the burden of proof;

— distortion of

request

the applicant's

the Staff Regulations of Officials of

to the appointing
authority of 29 July 2005 concerning compliance with
Article 14 of
the
European Communities in the version in force prior to the
modification thereof by the entry into force Regulation
No 723/2004 (1) inasmuch as that request did not seek the
re-examination of the applicant's staff reports as indicated at
paragraph 37 of the order under appeal;

— error in the legal classification of the pre-litigation complaint
of 26 February 2006, the aim of which was the annulment
of the staff reports and the decision on the applicant's career
and not ‘taking into account of numerous other new facts’
(paragraph 41 of the order under appeal);

— failure to state reasons

for

the decision to reject

the

complaint;

Appellant: Marianne Timmer (Saint-Sauves-d'Auvergne, France)
(represented by F. Rollinger, lawyer)

— in the alternative, failure to state sufficient reasons for that
inasmuch as the Tribunal should have

decision to reject,
examined the insufficiency of the reasons stated;

C 285/44

EN

Official Journal of the European Union

8.11.2008

— error

in the application of

the case-law regarding the
unlawful exercise of activities by the applicant's hierarchical
superior, since the applicant did not claim that those staff
reports were vitiated by the unlawfulness of the appoint-
ment of her hierarchical superior, but by the unlawful occu-
pation of a position which the applicant could have held
and by the personal
interest of her hierarchical superiors
(paragraph 42 of the order under appeal).

(1) Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004
amending the Staff Regulations of officials of the European Commu-
nities and the Conditions of Employment of other servants of the
European Communities (OJ 2004 L 124, p. 1).

Action brought on 19 August 2008 — Arkema France v
Commission

(Case T-343/08)

(2008/C 285/81)

Language of the case: French

Parties

Applicant: Arkema France (Colombes, France) (represented by: A.
Winckler, S. Sorinas Jimeno and H. Kanellopolous, lawyers)

Defendant: Commission of the European Communities

Agreement on the European Economic Area by sharing sales
volumes, by fixing prices, by exchanging commercially sensitive
information on prices and sales volumes and by monitoring the
execution of those anticompetitive arrangements on the market
for sodium chlorate in the European Economic Area.

In support of its action, the applicant relies on four pleas in law
alleging:

— an infringement of the rules concerning the responsibility of
a parent company for offences committed by a subsidiary,
inasmuch as the Commission committed errors of fact by
asserting that Elf Aquitaine had a decisive influence on the
applicant's commercial policy;

— an infringement of the applicant's rights of defence and of
the principles of proportionality, non bis in idem, equality of
treatment and of sound administration, since the basic
amount of the fine payable by the applicant was increased
by 90 % on the ground of recidivism;

— an underestimate of the value of the information provided
by the applicant pursuant
to the Leniency Notice of
2002 (1), inasmuch as the applicant should have received a
reduction of the fine of between 30 and 50 %; and

— errors of law and of fact and an infringement of the princi-
ples of sound administration, proportionality and equality of
treatment, since the Commission did not grant the applicant
a reduction of the fine on the basis of its cooperation in the
administrative procedure.

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002 C 45, p. 3).

Form of order sought

Action brought on 26 August 2008 — Aragonesas
Industrias y Energía v Commission

— Annul, on the basis of Article 230 EC, the decision adopted
by the Commission of
the European Communities of
11 June 2008 in Case COMP/38.695 in so far as it concerns
Arkema;

— In the alternative, annul or

reduce, on the basis of
Article 229 EC, the amount of the fine imposed on the
applicant by that decision;

— Order the Commission of the European Communities to

pay the entire costs.

(Case T-348/08)

(2008/C 285/82)

Language of the case: English

Parties

Pleas in law and main arguments

By the present action, the applicant seeks the annulment in part
of Commission Decision C(2008) 2626 final of 11 June 2008
in Case COMP/38.695 — Sodium Chlorate, by which the
Commission found that certain undertakings,
including the
applicant, infringed Article 81(1) EC and Article 53(1) of the

Applicant: Aragonesas Industrias y Energía, SA (Barcelona, Spain)
(represented by: I. Forrester, K. Struckmann, P. Lindfelt, J. Garcia-
Nieto Esteva, lawyers)

Defendant: Commission