Case T-525/08: Action brought on 1 December 2008 — Poste Italiane v Commission
Date: 2008-12-01
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, Treasury, action for annulment (EU), control of State aid, principle of legal certainty

C 44/52

EN

Official Journal of the European Union

21.2.2009

Pleas in law and main arguments

Form of order sought

The applicant contests the Parliament's decision to reject its
offer submitted in connection with the call for tenders for lot B
of the contract relating to the projected extension and refurbish-
ment of
the KAD building in Luxembourg — Tasks of an
approved inspection body (OJ 2008 S 193-254240).

In support of its application, the applicant puts forward four
pleas in law:

— manifest error of assessment on the part of the Parliament,
in that (i) the association to which the contract was awarded
did not have the necessary authorisations to perform the
tasks requested, as required in the tender specifications, and
(ii) that association's offer stated a price that was abnormally
low having regard to the criteria in the specifications;

— infringement of the obligation to state reasons, in that (i) the
Parliament did not state the specific benefits of the offer
accepted in comparison with the applicant's offer, thus not
enabling the applicant to identify the reasons why its offer
was not accepted, and (ii) the applicant was not put in a
position to know whether the assessment committee met
and, if so, what its conclusions were;

— infringement of the principles of diligence, good administra-
tion and transparency, as the Parliament failed to provide
the explanations requested within a reasonable time;

— infringement of the provisions of the administrative specifi-
cations, in that neither the contested decision nor the subse-
quent letters mentioned remedies.

Action brought on 1 December 2008 — Poste Italiane v
Commission

(Case T-525/08)

(2009/C 44/92)

Language of the case: Italian

Parties

Applicant: Poste Italiane (Rome, Italy) (represented by A. Fratini,
A. Sandulli and F. Filpo, lawyers)

Defendant: Commission of the European Communities

— Upholding of the action and as a result annulment of the
Commission's decision of 16 July 2008 relating to aid
C 42/2006 put into effect by Italy in order to provide a
return on the current accounts of Poste Italiane with the
State Treasury, not yet published in the Official Journal of the
European Union;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

This action is brought against the Commission's decision of
16 July 2008 relating to aid C 42/2006 put into effect by Italy
in order to provide a return on the current accounts of Poste
Italiane with the State Treasury. That decision declared incompa-
tible with the common market, ordering its repayment, the
system of State aid relating to the return on Poste Italiane
current accounts with the Treasury, established by Law No 266
of 23 December 2005, and by the agreement between the
Ministry of
the Economy and Finance and Poste Italiane of
23 February 2006, which was put into effect by Italy, suppo-
sedly unlawfully, in breach of Article 88(3) of the Treaty.

In support of its claims the applicant invokes:

— infringement of Article 253 and of the first subparagraph of
Article 87 of the EC Treaty, due to errors of fact and a mani-
fest error of assessment, so far as concerns the Commission's
application of the prudent borrower test, going so far as to
establish a private borrower rate.

— infringement of the first subparagraph of Article 87 of the
EC Treaty, due to a manifest error of assessment, with regard
to the evaluation of alternative investments. It is stressed in
this respect that, in the course of the administrative proceed-
ings, the Italian authorities stated that the criterion set out
in the agreement, governing the management of spare funds
derived from the postal collection, penalises Poste with
regard to the possibility of making profits from active
management, and therefore does not confer any ‘advantage’
for the purposes of Article 87 of the Treaty.

Here, the applicant also refers to the relevance of the RBS study
and of the opinions of financial brokers, and to the comparison
with trading type management, with the management of funds
from Poste Vita insurance policies, and with the cost of the
Treasury's debt.

— Infringement of Article 253 and of the first subparagraph of
Article 87 of the Treaty, due to failure to state reasons and a
manifest error of assessment, and breach of the principles of
the protection of legitimate expectations and legal certainty,
in relation to the lack of any analysis of the element of
advantage and of distortion of competition in the context of
the universal service mission assumed by Poste.

21.2.2009

EN

Official Journal of the European Union

C 44/53

— Breach of the general principles of the protection of legiti-
legal certainty and proportionality in

mate expectations,
ordering the alleged aid to be repaid by the recipient.

Appeal brought on 3 December 2008 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 25 September 2008 in
Case F-44/05 Strack v Commission

(Case T-526/08 P)

(2009/C 44/93)

Language of the case: German

Parties

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

Other party to the proceedings: Guido Strack (Cologne, Germany)

Form of order sought

— set aside the judgment of

the Civil Service Tribunal of

25 September 2008 in Case F-44/05 Strack v Commission;

— order the original applicant to pay the costs of the proceed-
ings before the Civil Service Tribunal as well as the costs of
the appeal.

Pleas in law and main arguments

The appeal is brought against the judgment of the Civil Service
Tribunal of 25 September 2008 in Case F-44/05 Strack v
Commission. That judgment annulled the decision of the Office
for Official Publications of the European Communities to reject
the candidature of the original applicant for the post of head of
the ‘Calls for tenders and contracts’ unit and ordered the Commis-
sion to pay him EUR 2 000 by way of damages
for
non-material harm.

In support of its appeal, the appellant puts forward two pleas in
law.

argues, was wrong in law and could give rise to uncertainty as
regards the implementation measures under Article 233 EC. The
rule which states that inadmissibility of an action for annulment
automatically entails the inadmissibility of a claim for damages
directly connected to that action is not applicable where there is
no danger that the claim for damages is being used as a means
by which to circumvent the necessary preliminary proceedings
or other conditions governing admissibility, with the result that
a claim for damages may be admissible even though the action
for annulment is inadmissible because of the absence of a defen-
sible interest.

2. Failure to provide a statement of

reasons in interpreting and

making a finding of ‘non-material harm’

Second, the Civil Service Tribunal erred in paragraph 219 of the
judgment under appeal when it found that the original applicant
had actually suffered non-material harm on the ground that he
had been denied the right to a proper review of his application.
That finding necessarily implies that the unlawfulness of a deci-
sion rejecting a candidature constitutes, per se, non-material
harm. Such an interpretation fails to recognise that non-contrac-
tual
liability on the part of the Community depends on the
presence of three cumulative conditions: first, the unlawfulness
of the conduct of which the institutions are accused; second, the
third, a causal
actual occurrence of
connection between the two.

the harm alleged; and,

Action brought on 5 December 2008 — Norilsk Nickel
Harjavalta Oy and Umicore NV v Commission

(Case T-532/08)

(2009/C 44/94)

Language of the case: English

Parties

Applicants: Norilsk Nickel Harjavalta Oy (Harjavalta, Finland) and
Umicore SA/NV (Brussels, Belgium) (represented by: K. Nord-
lander, lawyer)

Defendant: Commission of the European Communities

1. Infringement of Community law resulting from the confirmation
that there was a defensible interest in bringing the action for annul-
ment

Form of order sought

The Commission's first head of challenge is that the application
for annulment of the rejection decision was held to be admis-
sible, notwithstanding the fact that the original applicant did
not have a defensible interest in bringing the action challenging
the appointing decision inasmuch as a claim for damages was
introduced at the same time. That finding, the Commission

— Declare the present application admissible;

— annul the contested acts;

— order the Commission to pay the applicants' costs for these

proceedings.