CELEX: C2000/247/57
Language: en
Date: 2000-08-26 00:00:00
Title: Case T-158/00: Action brought on 13 June 2000 by the Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) against the Commission of the European Communities

C 247/32                EN                      Official Journal of the European Communities                                      26.8.2000
The applicant claims that the Court should:                                European Communities on 13 June 2000 by the Arbeitsge-
                                                                           meinschaft der öffentlich-rechtlichen Rundfunkanstalten der
—     declare that the European Parliament has adopted a                   Bundesrepublik Deutschland (ARD), of Cologne (Federal
      decision contrary to Articles 4 and 5, the second para-              Republic of Germany), consisting of Bayerische Rundfunk,
      graph of Article 7, Articles 9 and 45 and Annex I to the             Hessischer Rundfunk, Mitteldeutscher Rundfunk, Nord-
      Staff Regulations of Officials;                                      deutscher Rundfunk, Ostdeutscher Rundfunk Brandenburg,
                                                                           Radio Bremen, Saarländischer Rundfunk, Sender Freies Berlin,
—     annul the decisions adopted on 26 November 1999                      Südwestrundfunk and Westdeutscher Rundfunk, represented
      by the Director-General for Personnel concerning the                 by Peter Mailänder and Andreas Bartosch, of Haver & Mailänd-
      promotion of certain officials to grades B2 and B1,                  er, Stuttgart (Federal Republic of Germany).
      inasmuch as those decisions were made without the
      announcement or publication of notices of vacancy
                                                                           The applicants claim that the Court should:
      relating to posts corresponding to the standard post of
      principal administrative assistant, and on the basis of an           —     annul the Commission’s decision of 21 March 2000 in
      incorrect examination of the comparative merits of the                     case COMP/JV.37, by which, pursuant to Article 6(1)(b)
      officials concerned;                                                       of Council Regulation (EEC) No 4064/89 on the control
—     annul the decision of 10 March 2000 by which the                           of concentrations between undertakings (‘the Merger
                                                                                 Regulation’), it declared the proposed concentration of
      Secretary-General rejected the applicant’s complaint of
      29 February 2000;                                                          BSkyB and KirchPayTV to be compatible with the com-
                                                                                 mon market;
—     order the defendant to pay the costs.
                                                                           —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                           Pleas in law and principal arguments
The applicant was not included amongst the officials promoted
by decision of the Director-General for Personnel dated                    By the contested decision, the Commission decided to raise no
26 November 1999, allegedly on account of the method used                  objections to a proposed concentration in the course of which
in applying the promotion system recently introduced in the                the British Sky Broadcasting Group plc (‘BSkyB’) intends to
Parliament.                                                                acquire 24 % of the shares in KirchPayTV GmbH & Co. KGaA
                                                                           (‘KirchPayTV’).
She seeks annulment of the decision concerning the number
of points awarded to her for promotion purposes, together                  The applicant contests that decision and advances, in essence,
with annulment of the decisions promoting other officials,                 the following pleas:
which were adopted on the basis of an incorrect examination
of their comparative merits.                                               —     The Commission correctly observes in the contested
                                                                                 decision that KirchPayTV would not be able, without the
The applicant asserts that the promotion system in force in                      additional financial resources of BSkyB, to make the
the Parliament is unlawful, and pleads in that connection:                       investment needed in terms of content and technical
                                                                                 infrastructure in order to maintain its present market
—     the illegality, in the light of Articles 4 and 5 and Annex I               position. It commits an error of law, however, in
      to the Staff Regulations, of the separation of grades from                 stating that there exists no potential competition between
      functions;                                                                 KirchPayTV and BSkyB in the German market by refer-
                                                                                 ence to the current competitive strength of KirchPayTV
—     infringement of Article 45 of the Staff Regulations.                       which might impede the entry into the market of
                                                                                 another operator. In so stating, the Commission has
                                                                                 misunderstood the criterion to be applied in accordance
                                                                                 with Article 2(3) of the Merger Regulation. It has failed to
                                                                                 have sufficient regard to the possibility, postulated by the
                                                                                 Commission itself, of future changes in the situation as
                                                                                 regards dominance of the market.
Action brought on 13 June 2000 by the Arbeitsgemein-
schaft der öffentlich-rechtlichen Rundfunkanstalten der                    —     Although the Commission may accept commitments
Bundesrepublik Deutschland (ARD) against the Com-                                inter alia in the context of the initial examination of
            mission of the European Communities                                  concentrations under Article 6(2) of the Merger Regu-
                                                                                 lation, such commitments must be restricted to clearly
                          (Case T-158/00)                                        defined and easily resolvable competition problems.
                                                                                 In the present case, the Commission disregarded that
                          (2000/C 247/57)                                        requirement.
                                                                           —     The commitments accepted by the Commission do not
                   (Language of the case: German)                                meet the requirements relating to the application of
                                                                                 European merger controls in the light of the structure of
An action against the Commission of the European Communi-                        the market. The commitments result in an on-going
ties was brought before the Court of First Instance of the                       monitoring of conduct, as prescribed in the context of
 ---pagebreak--- 26.8.2000               EN                      Official Journal of the European Communities                                      C 247/33
      the control of abuses of cartel law pursuant to Article 82           The applicant claims that the Court should:
      EC. However, such monitoring of conduct has no
      additional value whatever, in terms of the promotion of              —     annul the implicit decision of the Commission rejecting
      competition, as a counter- balance to the tolerated                        the complaint lodged by the applicant under Article 90(2)
      dominance of the market. More wide-reaching commit-                        of the Staff Regulations against the list of officials
      ments, as demanded by the applicant in the course of the                   promoted to grade A 4, published in ‘Administrative
      procedure, have not been given by the parties to the                       Notices’ No 1080 of 13 August 1999, inasmuch as his
      proposed concentration.                                                    name did not appear on that list;
—     In addition, the Commission acted incorrectly from a                 —     consequently, rule that the 1999 procedure for pro-
      procedural point of view. Although significant reser-                      motion to grade A 4 is annulled as regards the applicant;
      vations were expressed in the decision as regards the
      compatibility of the proposed concentration with the                 —     order the defendant to pay compensation of 5 000 euros
      common market, the Commission granted its approval,                        for non-material damage;
      on the basis of wide-ranging and partly unverifiable
      commitments offered by the parties seeking that                      —     order the defendant to pay all the costs.
      approval, as early on as the initial examination stage. Had
      it acted correctly, however, proceedings should have been
      initiated in accordance with Article 6(1)(c) of the Merger           Pleas in law and main arguments
      Regulation.
                                                                           In support of his action, the applicant pleads:
—     Lastly, the Commission unlawfully failed to comply
      with the procedural rule laid down in Article 18(1) of               —     the total absence of any statement of reasons for the
      Commission Regulation (EC) No 447/98 (1), in that, even                    contested decision and infringement of Article 25(2) of
      after the expiry of the three-week time-limit prescribed in                the Staff Regulations of officials;
      that provision, it constantly had regard to further, altered
      commitments offered by the parties to the proposed
                                                                           —     infringement of Article 45(1) of the Staff Regulations and
      concentration. This infringed the procedural rights of the
                                                                                 manifest error of assessment.
      applicant in particular, since the applicant was required
      to adopt a position within time-limits which became
      ever shorter, and ultimately had scarcely any further
      opportunity to express its views.
(1) Commission Regulation (EC) No 447/98 of 1 March 1998 on the
    notifications, time limits and hearings provided for in Council
    Regulation (EEC) No 4064/89 on the control of concentrations           Action brought on 16 June 2000 by Rosemarie Carotti
    between undertakings (OJ 1998 L 61, p. 1).                             against the Court of Auditors of the European Communi-
                                                                                                          ties
                                                                                                   (Case T-163/00)
                                                                                                   (2000/C 247/59)
                                                                                              (Language of the case: French)
Action brought on 14 June 2000 by Vassilios Tsarnavas
  against the Commission of the European Communities
                                                                           An action against the Court of Auditors of the European
                                                                           Communities was brought before the Court of First Instance
                          (Case T-161/00)                                  of the European Communities on 16 June 2000 by Rosemarie
                                                                           Carotti, residing in Luxembourg, represented by Gaston Vogel
                                                                           and Ferdinand Burg, of the Luxembourg Bar.
                          (2000/C 247/58)
                                                                           The applicant claims that the Court should:
                     (Language of the case: French)
                                                                           —     annul the decision of 15 May 2000;
An action against the Commission of the European Communi-                  —     order the Court of Auditors to pay the costs;
ties was brought before the Court of First Instance of the
European Communities on 14 June 2000 by Vassilios Tsarna-                  —     order the Court of Auditors to pay to Ms Carotti the sum
vas, residing in Brussels, represented by Nicolas Lhoëst, of the                 of LFR 50 000, constituting the expenses which she has
Brussels Bar.                                                                    had to incur in order to succeed with her case.