Case T-532/08: Action brought on 5 December 2008 — Norilsk Nickel Harjavalta Oy and Umicore NV v Commission
Date: 2008-12-05
Institutions: Court of First Instance
Subjects: EU law, European Commission, action for annulment (EU), carbon, chemical product, classification, dangerous substance, nickel

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.

C 44/54

EN

Official Journal of the European Union

21.2.2009

Pleas in law and main arguments

By means of their application, the applicants seek the annul-
ment of the specific entry for a group of four nickel carbonate
related compounds — Nickel Hydroxycarbonate, Pure Nickel
Carbonate and two other compounds (the ‘Nickel Carbonates’)
— in Commission Directive 2008/58/EC (1)
(‘the 30th ATP
Directive’), which is an adaptation to technical progress (‘ATP’)
of Directive 67/548/EEC (2) (‘The Dangerous Substances Direc-
tive’).

The applicants' central claim is that the revised classification of
the Nickel Carbonates was not based on the applicable legal
criteria. According to the applicants, the revised classification of
the Nickel Carbonates is contrary to the requirements of
Dangerous Substances Directive since it was unsupported by
data and was not an adaptation to technical progress. Instead, it
is submitted that the Commission revised the classification of
the Nickel Carbonates based on a risk assessment of the Nickel
Carbonates carried out for a different purpose under Regulation
(EC) No 793/93 (3)
(‘The Risk Assessment Regulation’). The
applicant further submits that the Commission relied in particu-
lar upon a Derogation Statement
in which four individual
companies, including the applicants, requested permission not
to carry out certain testing required under the Risk Assessment
applicants,
Regulation. That Statement,
provided no data to support any of the changes in classification
of the Nickel Carbonates that are included in the 30th ATP
Directive.

according to the

Thus, the applicants seek the annulment of two separate acts of
the European Commission:

Moreover, the applicants claim that the revised classification of
the Nickel Carbonates in the 30th ATP Directive must be
annulled because the Commission failed to state the reasons on
which it is based, as required by Article 253 EC.

(1) Commission Directive 2008/58/EC of 21 August 2008 amending,
for the purpose of its adaptation to technical progress, for the 30th
time, Council Directive 67/548/EEC on the approximation of the
laws, regulations and administrative provisions relating to the classifi-
cation, packaging and labelling of dangerous substances (OJ 2008
L 246, p. 1).

(2) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to the
substances
classification, packaging and labelling of dangerous
(OJ 1967 196, p. 1).

(3) Council Regulation (EEC) No 793/93 of 23 March 1993 on the
evaluation and control of the risks of existing substances (OJ 1993
L 84, p. 1).

Action brought on 3 December 2008 — Telekomunikacja
Polska v Commission

(Case T-533/08)

(2009/C 44/95)

Language of the case: Polish

— the revised classification of the Nickel Carbonates in entry
028-010-00-0 in Annex 1F to the 30th ATP Directive;

Parties

— the Commission's decision to use the Derogation Statement
given by the applicants under the Risk Assessment Regu-
lation as the basis for the contested entry.

Applicant: Telekomunikacja Polska SA (Warsaw, Poland) (repre-
sented by H. Romańczuk, M. Modzelewska de Raad and S. Haut-
bourg, lawyers)

In support of
the
contested acts do not comply with the requirements of the
Dangerous Substances Directive for the following reasons:

their claims the applicants submit

that

a) the contested acts do not comply with the detailed criteria
and scientific data requirements for classification in each
hazard class under Annex VI to the Dangerous Substances
Directive;

b) in adopting the contested acts, the Commission did not
consider the intrinsic properties of the Nickel Carbonates in
the context of normal handling and use required by the
Dangerous Substances Directive;

c) the contested acts are not an adaptation to technical progress
of the Dangerous Substances Directive and, as such, have no
legal basis in EC law;

d) in taking the contested decision and basing the contested
entry on the Nickel Carbonates risk assessment under the
Risk Assessment Regulation, rather than applying Article 4
and Annex VI
the Commission
classification criteria,
exceeded its powers under the Dangerous Substances Direc-
tive.

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2008) 4997 of 4 September
2008 requiring the undertaking Telekomunikacja Polska SA
and all undertakings directly or indirectly controlled by it to
submit to an inspection in accordance with Article 20(4) of
Council Regulation No 1/2003 (1);

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2008) 4997 of 4 September 2008 requiring the undertaking
Telekomunikacja Polska SA and all undertakings directly or
indirectly, wholly or partly controlled by it to submit to an
inspection in accordance with Article 20(4) of Council Regu-
lation No 1/2003, in connection with a procedure concerning
the
incompatible with
Article 82 EC in the electronic communications sector.

application of

practices

alleged