Case T-377/08 P: Appeal brought on 10 September 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 Birkhoff v Commission
Date: 2008-09-10
Institutions: Court of First Instance
Subjects: European Commission, action by staff, appeal, facilities for people with disabilities, health insurance, retired person

C 327/28

EN

Official Journal of the European Union

20.12.2008

Order of the President of the Court of First Instance of
17 September 2008 — Melli Bank v Council

(Case T-332/08 R)

for

(Applications
interim measures — Regulation (EC)
No 423/2007 — Restrictive measures against the Islamic
Republic of Iran — Council decision — Measure to freeze
funds and economic resources — Application for suspension
of operation of a measure — No urgency — Absence of
serious and irreparable damage)

(2008/C 327/52)

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom)
(repre-
sented by: R. Gordon, QC, M. Hoskins, Barrister, T. Din,
S. Gadhia and D. Murray, Solicitors)

Defendant: Council of
M. Bishop, and E. Finnegan, acting as Agents)

the European Union (represented by:

Re:

Application for suspension of the application of paragraph 4,
section B, of the Annex to Council Decision 2008/475/EC of
23 June 2008 implementing Article 7(2) of Regulation (EC)
Iran
No 423/2007 concerning restrictive measures against
(OJ 2008 L 163, p. 29), in so far as Melli Bank plc is included
in the list of legal persons, entities and bodies whose funds and
economic resources are frozen.

Operative part of the order

1. The application for interim measures is dismissed.

2. The costs are reserved.

Defendant: Council of
the European Union (represented by:
M. Bishop, E. Finnegan and R. Liudvinaviciute-Cordeiro, acting
as Agents)

Re:

Application for suspension of the application of paragraph 4,
section B, of the Annex to Council Decision 2008/475/EC of
23 June 2008 implementing Article 7(2) of Regulation (EC)
Iran
No 423/2007 concerning restrictive measures against
(OJ 2008 L 163, p. 29), in so far as Bank Melli Iran is included
in the list of legal persons, entities and bodies whose funds and
economic resources are frozen.

Operative part of the order

1. The application for interim measures is dismissed.

2. The costs are reserved.

Appeal brought on 10 September 2008 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 8 July 2008 in Case
F-76/07 Birkhoff v Commission

(Case T-377/08 P)

(2008/C 327/54)

Language of the case: German

Order of the President of the Court of First Instance of
15 October 2008 — Bank Melli Iran v Council

Parties

(Case T-390/08 R)

for

(Applications
interim measures — Regulation (EC)
No 423/2007 — Restrictive measures against the Islamic
Republic of Iran — Council decision — Measure to freeze
funds and economic resources — Application for suspension
of operation of a measure — No urgency — Absence of
serious and irreparable damage)

(2008/C 327/53)

Language of the case: French

Appellant: Commission of the European Communities (repre-
sented by J. Currall and B. Eggers)

Other party
Germany)

to the proceedings: Gerhard Birkhoff

(Weitnau,

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal delivered

on 8 July 2008 in Case F-76/07 Birkhoff v Commission;

Parties

Applicant: Bank Melli
L. Defalque, lawyer)

Iran (Tehran,

Iran)

(represented by:

— order Mr Birkhoff to pay the costs of the proceedings before

the Civil Service Tribunal and of the appeal.

20.12.2008

EN

Official Journal of the European Union

C 327/29

Pleas in law and main arguments

The appeal is directed against the judgment of the Civil Service
Tribunal delivered on 8 July 2008 in Case F-76/07 annulling
the decision of the Settlements Office, in the form of a decision
on a complaint, not to reimburse the costs of acquiring a new
wheelchair two years after the last acquisition, on the grounds
of lack of necessity.

C 16/2004 (formerly NN 29/2004, CP 71/2002 and
CP 133/2005) granted by Greece to the undertaking Ellinika
Nafpigia A.E.;

— order the Commission to pay the applicant's costs in the

present proceedings.

The appellant submits in support of
first,
contrary to the applicable provisions of Community law, the
judgment redefines the margin of discretion of
the Medical
in that, according to the
Officer and of the Medical Council
judgment, only independent medical bodies may have such a
margin of discretion.

its appeal

that,

Second, the judgment disavows any significance in the opinions
of the Medical Council — which, in practice, are important in
the examination of the necessity of costs — by stating that it is
merely an advisory body whose opinions are not published.
This is contrary to settled case-law on the Joint Rules on sick-
ness insurance for officials of the European Communities, as
applicable on 22 March 2004. Furthermore, those opinions
have the status of a rebuttable presumption in relation to the
necessity of costs.

In addition, the appellant alleges a distortion of the facts or
errors in the legal characterisation of
the
subject-matter of the dispute, and an infringement of the obliga-
tion to state the reasons for the judgment, since an essential
the decision on the complaint was declared to be
part of
non-existent.

the facts and of

Action brought on 15 September 2008 — Ellinika Nafpigia
v Commission

(Case T-391/08)

(2008/C 327/55)

Language of the case: Greek

Parties

Applicant: Ellinika Nafpigia (Skaramagkas, Greece) (represented
by: I. Drosos, K. Loukopoulos, A. Khiotellis, K. Panagoulea, P.
Tzioumas, A. Balla, B. Voutsakis and X. Gkousta, lawyers)

Defendant: Commission of the European Communities

Pleas in law and main arguments

The applicant, Ellinika Nafpigia A.E (Hellenic Shipyards; ‘ENAE’),
challenges 12 of the 16 measures imposed in Commission Deci-
sion C(2008) 3118 final of 2 July 2008 concerning Aid
C 16/2004 (formerly NN 29/2004, CP 71/2002 and
CP 133/2005), and puts forward nine pleas in law in support of
its claim for annulment.

By its first plea, the applicant submits that the Commission did
not apply Article 298 EC notwithstanding the acceptance in the
contested decision that ENAE is a military shipyard.

By its second plea, the applicant contends that the contested
decision failed to apply, or misapplied, Article 296 EC.

By its third plea, the applicant asserts that the contested decision
contains a manifest error of assessment, or otherwise an insuffi-
cient statement of reasons, in finding that ENAE's creditworthi-
ness standing was reduced from 1997 to June 1999 and there-
after non-existent. In particular, the contested decision (a) did
not assess ENAE's creditworthiness in relation to the specific
feature that it is a military industrial unit, (b) disputed without
justification ENAE's economic parameters and also the entirely
acceptable guarantees which it was in a position to provide in
order to be financed by any private bank and (c)
ignored
without justification and misappraised the interest of Elliniki
Trapeza Viomikhanikis Anaptixis (Hellenic Industrial Develop-
ment Bank;
in the
value of, and return from, that commercial stake held by it.

‘ETVA’) as majority shareholder in ENAE,

By its fourth plea, relating to the wrongful implementation of
the aid which took the form of the writing-off of debts of
EUR 160 million, the applicant submits that approval decision
C 10/1994 did not lay down conditions and was not wrongly
implemented, and in the alternative that ENAE was not granted
the whole of the foregoing amount and, therefore, that sums
not granted cannot be recovered. The applicant further submits
that Article 296 EC must be applied both when assessing the
possible existence of aid and when calculating any recoverable
benefit. Finally, recovery of the aid infringes the principle of
proportionality, the principle of legal certainty and the principle
that the legitimate expectations of a recipient of aid should be
protected.

Form of order sought

— annul Articles 1(2), 2, 3, 5, 6, 8(2), 9, 11 to 16, 18 and 19
of the contested decision of 2 July 2008 concerning Aid

By its fifth plea, relating to wrongful implementation of the aid
approved in 2002 of EUR 29,5 million for the closure of facil-
ities, by reason of a supposed failure to observe the counter-
vailing condition restricting the applicant's repair capacity, the
applicant submits that approval decision N 513/2001 was
misapplied.