CELEX: C1998/234/58
Language: en
Date: 1998-07-25 00:00:00
Title: Action brought on 29 April 1998 by Luc Verheyden against the Commission of the European Communities (Case T-71/98)

25.7.98               EN                Official Journal of the European Communities                                 C 234/29
Ð in the alternative, annul those parts of the decision            Ð Errors of law in the application of Article 86,
    that the Court finds erroneous or unsafe; and                      inasmuch as cabinet provisions on a free-on-loan basis
                                                                       do, in the circumstances of this industry, represent the
                                                                       normal means by which suppliers of impulse ice cream
Ð order the Commission to pay the applicant's costs.                   compete and should be objectively justified.
Pleas in law and main arguments adduced in support:                Ð Errors of law in the failure to respect property rights
                                                                       as required by general principles of law and under
The application concerns the prohibition of the practice of            Article 222 of the EC Treaty. HB submits in this
freezer cabinet exclusivity as adopted by the applicant Van            regard that the contested decision seeks to deprive it in
Den Bergh Foods Ltd (formerly HB and here referred to as               whole or substantial part of the value and enjoyment
such), a subsidiary of the Unilever N.V./PLC group, in the             of its investments in cabinets, which have no purpose
market for wrapped single-portion ice cream intended for               other than to support the storage and sale of the HB's
immediate consumption (impulse ice cream') in the                     ice creams at point of sale, so that to prohibit the
Republic of Ireland. Freezer-cabinet exclusivity involves              exclusivity clause is to deprive the applicant of rights
the provision by an ice-cream supplier of freezer cabinets,            representing the normal incidents of its cabinet
which are paid for and maintained by the supplier, to                  ownership.
retailers to be used exclusively for the sale of the impulse
ice-cream products of that supplier.                               Finally, the applicant submits that the contested decision
                                                                   has been taken in breach of Article 190 of the EC Treaty,
                                                                   and of a number of fundamental principles of Community
The decision that whenever the applicant supplies to a
                                                                   law, such as protection of legitimate expectations,
retailer one or more HB owned and maintained cabinets
                                                                   subsidiarity, legal certainty, proportionality and equal
for the stocking of impulse ice cream and that retailer
                                                                   treatment.
does not also have his own cabinet or one supplied by a
third-party ice-cream manufacturer, the exclusivity term of
the agreement under which the cabinet is supplied
infringes Article 85(1), and the inducement to the retailer
to accept the supply by HB of a cabinet (subject to a
condition of exclusivity) and its maintenance without
direct charges infringes Article 86. Moreover, the request         Action brought on 29 April 1998 by Luc Verheyden
for an exemption of the exclusivity term under                       against the Commission of the European Communities
Article 85(3) is rejected.                                                                (Case T-71/98)
                                                                                           (98/C 234/58)
The applicant's pleas in law and main arguments can be
summarized as follows:
                                                                                  (Language of the case: French)
Ð Manifest errors of assessment of facts, leading to
                                                                   An action against the Commission of the European
    errors of law. It is submitted on this point that the
                                                                   Communities was brought before the Court of First
    Commission is wrong to attribute a foreclosing effect
                                                                   Instance of the European Communities on 29 April 1998
    to agreements terminable at will by deeming them to
                                                                   by Luc Verheyden, residing at Angera (Italy), represented
    give rise to a so-called de facto tie', and by
                                                                   by Eric Boigelot, of the Brussels Bar, with an address for
    concluding on the basis of HB's popularity as a
                                                                   service in Luxembourg at the Chambers of Louis Schiltz, 2
    supplier of impulse ice cream that retail outlets are in
                                                                   Rue du Fort Rheinsheim.
    consequence deprived of the opportunity to replace
    freezer cabinets supplied by HB or to install further
    cabinets alongside the HB cabinet. On the contrary,            The applicant claims that the Court should:
    the number of retail outlets (even in the smallest size
    category) with two or more cabinets is substantial and         Ð annul the decision of 10 July 1997, signed by Mr
    has been increasing over time.                                     Holtbecker, refusing the applicant any compensation
                                                                       for the use of his personal vehicle in the performance
Ð Errors of law in the application of Article 85(1).                   of his duties or on the occasion thereof;
    According to the applicant, the basic form of cabinet
    agreement does not involve a restriction of                    Ð annul the decision implicitly rejecting the complaint
    competition and the exclusivity' provision similarly              submitted by the applicant against that refusal on
    falls outside that provision. Secondly, Article 85(1)              29 September 1997, which was registered as having
    will only apply to the HB cabinet agreements if they               been received on that date;
    foreclose the market to new entrants or to those
    seeking to build market share to a degree and extent
    inconsistent with non-applicability of the prohibition         Ð order the defendant to pay compensation amounting
    under Article 85(1), which should not be the case.                 to LIT 74 254 000 together with compensatory
                                                                       interest at the annual rate of 8 %, to be calculated in
                                                                       respect of the period from 24 March until the date of
Ð Errors of law in the assessment under Article 85(3).                 payment in full;
 ---pagebreak--- C 234/30             EN                 Official Journal of the European Communities                                    25.7.98
Ð order the Commission to pay all the costs.                       with Italian legislation, and were approved by it on 7 July
                                                                   1994. In the meantime, the abovementioned doctor
Pleas in law and main arguments adduced in support:                brought an action before the courts in Italy against the
                                                                   applicant seeking an order enjoining him to pay said fees
                                                                   and expenses.
The applicant pleads infringement of Articles 25 and 71 of
the Staff Regulations and of Annex VII thereof, in
particular Articles 14b and 15, and breach of the principle        In support of his application the applicant claims that the
of equality and of the principle that all administrative           following have been breached:
decisions must be based on a lawful and relevant
statement of reasons; he maintains that no valid statement         Ð the first paragraph of Article 8 of Annex II to the Staff
of reasons was given for the contested decision.                       Regulations;
                                                                   Ð the first paragraph of Article 23(2) of the Rules on the
                                                                       Insurance of Officials of the European Communities
                                                                       against the Risk of Accident and of Occupational
                                                                       Disease;
Action brought on 5 May 1998 by Arnaldo Lucaccioni
  against the Commission of the European Communities               Ð the duty of care incumbent on the Commission;
                       (Case T-75/98)
                        (98/C 234/59)                              Ð the duty to have regard to the welfare of officials and
                                                                       to observe reasonable periods' under the Declaration
                                                                       of Human Rights, in view of the fact that the two
               (Language of the case: Italian)                         Committees took years to complete reach their
                                                                       findings.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 5 May 1998 by
Arnaldo Lucaccioni, represented by Mauro Cimino, of the
Fermo Bar, with an address for service in Luxembourg at
the Chambers of Jean Tonnar, 29 Rue du FosseÂ, Esch-sur-
                                                                   Action brought on 13 May 1998 by Claudine Hamptaux
Alzette.
                                                                     against the Commission of the European Communities
                                                                                          (Case T-76/98)
The applicant claims that the Court should:
                                                                                           (98/C 234/60)
1. order the defendant to pay the costs of the
    proceedings, that is LIT 35 950 million, together with                        (Language of the case: French)
    the interest and legal costs accrued, as well as to
    refund the costs incurred by Dr Cognigni as a result of        An action against the Commission of the European
    participating in the Medical Committee;                        Communities was brought before the Court of First
                                                                   Instance of the European Communities on 13 May 1998
2. order the defendant to make good non-material                   by Claudine Hamptaux, residing at WoluweÂ-St-Lambert
    damage caused in the amount of six times the amount            (Belgium), represented by Lucas Vogel, of the Brussels Bar,
    mentioned in paragraph 1 above, including interest             with an address for service in Luxembourg at the
    and other costs;                                               Chambers of Christian Kremer, 6 Rue Heinrich Heine.
3. order the defendant to pay the costs.                           The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                Ð annul the decision, adopted on 30 January 1998 (and
                                                                       notified on 11 February 1998), expressly rejecting the
                                                                       complaint made by the applicant to the appointing
The present action seeks to obtain payment of a principal              authority on 9 October 1997 by which she contested
sum and interest thereon by way of fees and related                    the following two decisions:
expenses for the doctor appointed by the applicant to the
Invalidity Committee and to the Medical Committee in                   Ð the decision (notified to the applicant on 9 July
the procedures for assessing invalidity and recognizing                    1997 and published in Administrative Notices
occupational diseases respectively.                                        No 998 of 8 August 1997) not to include the
                                                                           applicant in the list of officials most deserving of
The applicant states in this regard that upon the                          promotion to grade B 2 in the 1997 promotions
conclusion of the Invalidity Committee and the Medical                     procedure;
Committee, the doctor appointed by him applied in vain
to the administration for the fees for his services. The fees          Ð the decision (published in Administrative Notices
and expenses in question were submitted to the Consiglio                   No 999 of 12 August 1997) listing the officials
dell'Ordine dei Medici (Medical Council) in accordance                     promoted to grade B 2 in the 1997 promotions