CELEX: C1996/145/17
Language: en
Date: 1996-05-18 00:00:00
Title: Action brought on 28 February 1996 by Arbeitsgemeinschaft deutscher Luftfahrt-Unternehmen and Hapag-Lloyd Fluggesellschaft mbH against the Commission of the European Communities (Case T-25/96)

No C 145/8            EN                  Official Journal of the European Communities                                    18 . 5 . 96
                                                    COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             The applicants claim that the Court should :
                      of 28 March 1996
                                                                     — annul Commission Decision K(95 ) 3319 final, of
in Case T-60/92 : Muireann Noonan v. Commission of the                    29 November 1 995 on special depreciation allowances
                 European Communities ( 1 )                               for aircraft pursuant to paragraph 82 f of the German
(Officials — Recruitment — Competition for category C —                   Einkommensteuerdurchfuhrungsverordnung ('EStDV'
Refusal to admit to the competition — Candidates holding a               — income tax implementation Regulation ), inasmuch as
                       university degree)                                 that decision concerns the extension of the validity of
                                                                          that provision from 1 January 1995 to 31 December
                          ( 96/C 145/16 )
                                                                          1999 ,
               (Language of the case: Englisb)                       — order the Commission to pay the costs.
In Case T-60/92 : Muireann Noonan, a member of the                   Pleas in law and main arguments
temporary staff of the Court of Justice of the European
Communities, represented by James O'Reilly, Senior                   The applicants are an association of airlines and one of its
Counsel, of the Irish Bar, and at the hearing by Onno                members. The membership of the association comprises all
Brouwer, of the Amsterdam Bar, with an address for service           airlines engaged in the provision of supraregional and
                                                                     international air services which are not State-owned and do
in Luxembourg at the offices of Fiduciaire Myson SARL, 1
Rue Glesener, against the Commission of the European                 not have their seat in Germany ( including Lufthansa ,
Communities ( Agent: John Forman ) — action for the                  through its subsidiary Condor Flugdienst GmbH ). The
annulment of the decision of the Selection Board in Open             applicants contended in the proceeding conducted by the
Competition COM/C/741 not to admit the applicant to the              Commission that the period of validity of paragraph 82 f of
                                                                     the EStDV should be extended .
competition, notified to her on 9 June 1992 — the Court of
First Instance ( First Chamber), composed of: A. Saggio,             Paragraph 82 f of the EStDV regulates the way in which the
President, V. Tiili and R. M. Moura Ramos, Judges; H.                cost of acquisition of aircraft may be written down over the
Jung, Registrar, has given a judgment on 28 March 1 996 , in         course of their normal useful life, that is to say, in the
which it:
                                                                     context of the computation of the profits of an undertaking.
                                                                     The provision affords airlines, to a certain extent, an option
1 . Annuls the decision of the Selection Board in Open               as to the way in which they spread their depreciation volume
    Competition COM/C/741 refusing to admit the                      over the period of depreciation .
    applicant to the tests in the competition.
                                                                     The applicants consider that the contested decision infringes
2 . Orders the Commission to pay the costs.                          the rules on competence laid down by the EC Treaty . They
                                                                     argue that paragraph 82 f of the EStDV forms an inherent
H OJ No C 258 , 7 . 10 . 1992 .                                      part of the German tax system . They contend that
                                                                     interference in the tax systems of the Member States is
                                                                     permissible only for the purposes of the approximation of
                                                                     laws, and not for the purposes of monitoring aid.
                                                                     The contested decision breaches the obligation to provide a
         Action brought on 28 February 1996 by                       statement of reasons pursuant to Article 190 of the EC
Arbeitsgemeinschaft deutscher Luftfahrt-Unternehmen and              Treaty:
      Hapag-Lloyd Fluggesellschaft mbH against the
        Commission of the European Communities                       — its wording and structure are such as to render the
                                                                         arguments contained in it incomprehensible,
                        ( Case T-25/96 )
                          ( 96/C 145/17)                             — the Commission made no findings of fact capable of
                                                                         verification in relation to any tax advantage for
              (Language of the case: German)                              undertakings, any loss of revenue for the State, any
                                                                         distortion of competition and/or any restriction on trade
                                                                         between Member States,
An action against the Commission of the European
Communities was brought before the Court of First                    — the Commission assumed, on the basis of an error in
Instance of the European Communities on 28 February                      reasoning, that Germany had acknowledged that
1996 by the Arbeitsgemeinschaft deutscher Luftfahrt­                     paragraph 82 f of the EStDV was in the nature of an aid
Unternehmen, Bonn, and Hapag-Lloyd Fluggesellschaft                      measure ,
mbH, Langenhagen ( Federal Republic of Germany ),
represented by Dr Gerrit Schohe and Dr Philipp von Dietze,           — the Commission left out of account several expert's
Rechtsanwàlte, Hamburg, with an address for service in                   reports stating that paragraph 82 f of the EStDV does
Luxembourg at the Chambers of Marc Baden, 34 b, rue                      not under any circumstances give rise to any tax
Philippe II .                                                            advantage or loss of revenue for the State but merely
 ---pagebreak---  18 . 5 . 96           EN                   Official Journal of the European Communities                                    No C 145/9
      affords undertakings, to a certain extent, flexibility in        and the appointment of another candidate of Portuguese
      the way in which they draw up their accounts .                   nationality .
 The contested decision of the Commission infringes                    In support of his application the applicant alleges in
 Article 92 ( 1 ) of the EC Treaty; the assumption as to               particular that the contested decisions are vitiated by the
 the existence of favourable treatment which distorts                  following defects :
 competition and restricts trade at the expense of the State's
 finances is founded on errors of law, alternatively manifest          — breach of the rights of the defence, inasmuch as the
 errors in the assessment of the facts of the case . In                    administration did not take into account his right to be
 considering the question whether paragraph 82 f of the                    heard before taking the abovementioned decisions,
 EStDV may afford taxpayers an advantage in respect of
 interest, the Commission applied an erroneous standard of             — inadequate statement of reasons,
 comparison . The Commission's conclusions regarding the               — misuse of powers, inasmuch as, at least in so far as
 distortion of competition and restrictions on trade are
                                                                           concerns the Portuguese candidate finally selected, the
 illogical ; they are not based on verifiable findings of fact.            Council exceeded the criteria for filling the posts at issue .
                                                                           The applicant considers in this respect that the selected
                                                                           candidate does not possess the requisite experience,
                                                                      — misuse of powers , inasmuch as the appointment of the
                                                                           higher ranking officials of the Office for Harmonization
 Action brought on 11 March 1996 by José Gomes de Sa                       in the Internal Market, including the members of the
     Pereira against the Council of the European Union                     Boards of Appeal , was made in the context of a political
                         ( Case T-30/96 )                                  compromise .
                           ( 96/C 145/ 18 )
               (Language of the case: Portuguese)
                                                                      Action brought on 13 March 1996 by Lars Bo Rasmussen
An action against the Council of the European Union was                 against the Commission of the European Communities
 brought before the Court of First Instance of the European
 Communities on 11 March 1996 by José de Sa Pereira,                                              ( Case T-35 /96 )
residing at S. Joâo de Ver, represented by Augusto Cardoso,                                         ( 96/C 145/ 19 )
of the Oporto Bar, with an address for service at his
Chambers, 16-1 Dt° Rua Jornal Correio da Feira , P-4520                               (Language of tbe case: Frencb)
Santa Maria da Feira .
                                                                      An action against the Commission of the European
The applicant claims that the Court should :                          Communities was brought before the Court of First
                                                                      Instance of the European Communities on 13 March 1996
— annul the three decisions adopted by the Council of the             by Lars Bo Rasmussen, residing at Dalheim ( Grand Duchy
     European Union on 25 October 1 995 appointing the                of Luxembourg ), represented by Carlo Revoldini, of the
     two presidents and the members of the Boards of Appeal           Luxembourg Bar, with an address for service in
     of the Office for Harmonization in the Internal                  Luxembourg at his Chambers, 180 , Route de Longwy .
     Market,
                                                                      The applicant claims that the Court should :
— in the alternative, annul the decision appointing the
     members of the First Board of Appeal in its entirety or, if      annul :
     appropriate, in so far as concerns Dr Luis Manuel
     Chaves Fonseca Ferrâo,                                           — the Commission's decision cancelling the procedure
                                                                           under vacancy notice COM/ 116/94 in accordance with
— order the Council of the European Union to pay the                       Article 29 ( 1 ) ( a ) of the Staff Regulations,
     costs ,
                                                                      and, in so far as may be necessary,
— order the Council of the European Union to compensate
     the applicant for the damage caused to him by the                — the Commission's decision to reserve the post forming
     contested decisions in an amount to be decided by the                the subject-matter of vacancy notice COM/ 1 16/94 for a
     Court .                                                              national of a new Member State and to publish notice of
                                                                          open competition COM/A/929 ( Head of Unit V/F/3 ) in
                                                                          the C Series of the Official Journal of 1 June 1995 ,
Pleas in law and main arguments
                                                                      — the Commission's response, adopted on 14 December
The applicant, a Portuguese national, applied for the post of              1995 , rejecting the applicant's complaint of 14 July
member of one of the Boards of Appeal of the Office for                    1995 ;
Harmonization in the Internal Market. He challenges the
rejection of his candidature for the abovementioned post              order the defendant :