Case T-354/08: Action brought on 21 August 2008 — Spira v Commission
Date: 2008-08-21
Institutions: Court of First Instance
Subjects: EU law, General Court (EU), action for annulment (EU), infringement of EU law, precious stones

8.11.2008

EN

Official Journal of the European Union

C 285/47

In the event that the plea in law alleging breach of essential
procedural requirements is held to be unfounded, the applicant
puts forward a plea based on the misapplication of the law.
According to the applicant, the conditions are not met for the
classification of the PPAs it concluded as State aid. First, the
Commission is wrong to apply the criterion of private investor,
since the situation of MVM cannot be compared to that of a
typical private investor. Second, the measure cannot be said to
be of a selective nature either, since the conclusion of the PPAs
was an express legal obligation. Third, the advantage was not
granted by the State as MVM is a commercial company oper-
ating under market conditions. Fourth, there was no distortion
of competition since there is no evidence that the PPAs have
had any effect on competition.

However, in the event that the Court of First Instance should
consider that the conditions for State aid are met, the applicant
states that the service it supplied is in the nature of a service of
general economic interest so that the PPAs which it concluded
do not constitute State aid incompatible with the common
market.

In support of its claim that it should be exempted from the obli-
gation to repay, submitted in the alternative in its application,
the applicant relies on the principles of proportionality, of the
protection of legitimate expectations and legal certainty and the
right to legal redress.

Action brought on 21 August 2008 — Spira v Commission

(Case T-354/08)

(2008/C 285/86)

Language of the case: English

Parties

Form of order sought

— Annul the Commission decision of 5 June 2008, pursuant
to Article 7(2) of Council Regulation No 773/2004, in case
COMP/38.826/B-2-Spira/De Beers/DTC Supplier of Choice;

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

Pleas in law and main arguments

In the present case, the applicant contests Commission Decision
(2008) D/203546 of 5 June 2008 by which the Commission
declared that the change in facts due to the annulment by the
Court of First Instance of the commitment decision (1) was not
a decisive element which would require the Commission to
revisit its Decision (2007) D/200338 of 26 January 2007, by
which it rejected, for lack of Community interest, the applicant's
complaint regarding violation of Articles 81 and 82 EC in
connection with the Supplier of Choice (SoC) system applied by
De Beers Group for
rough diamonds
(‘rejection decision’ (2)) (Case COMP/38.826/B-2-Spira/De Beers/
DTC Supplier of Choice).

the distribution of

The applicant puts forward three pleas in law in support of its
claims.

the applicant alleges that

Firstly,
the Commission failed to
examine with care and impartiality the anticompetitive practices
denounced by the applicant in its complaint.

Secondly, the applicant claims that when re-examining the issue
of input foreclosure the Commission could not claim that there
was a lack of Community interest to act on the complaint in
light of the significant damage resulting from the input foreclo-
sure caused by the SoC system. The applicant submits that the
input foreclosure should have been considered of Community
interest as it affects the availability of rough diamonds EU-wide
the SoC distribution
It considers that
and even worldwide.
system is an anti-competitive selective distribution system that
restricts intra-brand competition.

in the alternative,

the
Thirdly,
Commission erred in law and provided inadequate statement of
reasons in the application of the foreclosure effects test by:

the applicant

submits

that

Applicant: Diamanthandel A. Spira BVBA (Antwerp, Belgium)
(represented by: J. Bourgeois, Y. Van Gerven, F. Louis, A. Vallery,
lawyers)

Defendant: Commission of the European Communities

— not having first defined the analyzed market structure,
market power of the company concerned and the market
position of its competitors;

— failing to engage the examination of all potential restrictions
or monopolization activities of the supplier whose selective
distribution system was under scrutiny.

C 285/48

EN

Official Journal of the European Union

8.11.2008

Furthermore, the applicant claims that the Commission made a
manifest error of assessment and based its decision on materi-
ally incorrect facts when concluding that the SoC arrangement
does not appreciably foreclose secondary market operators from
access to rough diamonds (the input foreclosure).

(1) Case T-170/06 Alrosa v Commission [2007] ECR II-2601, appeal
lodged by the Commission with the Court of Justice, Case C-441/07,
Commission v Alrosa, OJ 2007 C 283, p. 22.

(2) The rejection decision is appealed by the applicant before the Court
of First Instance in Case T-108/07 Spira v Commission, OJ 2007
C 129, p. 20.

Appeal brought on 26 August 2008 by Chantal De Fays
against the judgment of the Civil Service Tribunal delivered
on 17 June 2008 in Case F-97/07 De Fays v Commission

(Case T-355/08 P)

(2008/C 285/87)

Language of the case: French

the period not covered by annual

In first place, the appellant is of the view that the CST erred in
law in its definition of the temporal scope of the decision of
21 November 2006 by which the administration, first, found
that the appellant had been regularly absent from 19 October
2006 and, secondly, withheld her remuneration for the whole
of
leave. The appellant
submits that the CST considered that the effects of the contested
decision extended only
from 19 October 2006 until
13 December 2006, that is, up to the point at which the admin-
istration received a medical certificate justifying the appellant's
absence, whereas, in fact, the effects of that decision continue
up to the present. That error of law is the outcome of an erro-
neous judicial assessment of the facts, the inaccuracy of which,
in the appellant's view, is attributable to the documents on the
case file.

In second place, the appellant states that the fact that the CST
based its decision that
the administration was entitled to
continue the suspension of the remuneration which was due to
the appellant on the existence of an implied decision is an error
of law, entailing breach of the second paragraph of Article 25,
the
Article 59(1) and Article 60 of
internal provisions of the Commission on the exercise of the
powers conferred on the appointing authority and the rights of
defence.

the Staff Regulations,

Parties

Action brought on 1 September 2008 — Hellenic Republic
v Commission of the European Communities

Appellant: Chantal De Fays (Bereldange, Luxembourg)
sented by F. Moyse, lawyer)

(repre-

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— Declare the present appeal admissible;

— set aside the judgment under appeal;

Parties

(Case T-356/08)

(2008/C 285/88)

Language of the case: Greek

— grant the application for annulment made by the appellant

before the Civil Service Tribunal;

Applicant: Hellenic Republic (represented by: K. Khalkias and E.
Leftheriotou)

— order the Commission to pay the costs of both sets of

proceedings.

Defendant: Commission of the European Communities

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the
judgment of the Civil Service Tribunal (‘the CST’) of 17 June
2008 in Case F-97/07 dismissing her action against the decision
of the appointing authority of 21 November 2006 applying
Article 60 of the Staff Regulations.

The appellant puts forward two pleas in law in support of her
appeal:

Form of order sought

— uphold the Hellenic Republic's action and annul

the
contested Commission decision in its entirety or otherwise
alter it in accordance with the matters that have been more
specifically set out, ordering that no correction be made
with regard to arable crops for the crop years 2004 and
2005 or, in any event, that the correction be restricted to
5 % and only to expenditure in respect of durum wheat;