CELEX: C2003/289/70
Language: en
Date: 2003-11-29 00:00:00
Title: Case T-340/03: Action brought on 2 October 2003 by Wanadoo Interactive S.A. against the Commission of the European Communities

C 289/34              EN                          Official Journal of the European Union                                       29.11.2003
In the event that the Court does not make the declaration                 —     annul the decision of the Commission of 1 October 2003
primarily sought against the contested regulation, the appli-                   fixing the new organigram of DG ESTAT in so far as it
cants seek in the alternative a declaration from the Court that                 does not thereby constitute a reassignment of the appli-
Article 2 of Regulation No 1260/2001 is unlawful and                            cant where another individual reassignment measure is
inapplicable in so far as it enables the Commission when                        ordered in addition;
setting the derived intervention price on the basis of market
trends to disregard the effect of unrestricted imports free of            —     order the Commission to pay her EUR 25 000 by way of
duty.                                                                           compensation for the non-material damage suffered as a
                                                                                result of irregular conduct;
Second, the applicants assert that the statement of reasons for           —     order the Commission to pay the costs in their entirety.
the contested regulation appears inadequate and contradictory
given that, by that measure, the Commission has altered its
own practice of preceding years — inasmuch as Italy was not
included in the States covered by regionalisation — without
                                                                          Pleas in law and main arguments
any objective justification for that change and without taking
account of the specific situation arising from the abovemen-
tioned imports free of duty of white sugar from the Balkans.
                                                                          The applicant, a Commission official, was transferred on
                                                                          16 January 2003 to Eurostat as Director of the Social Statistics
                                                                          Directorate. On 9 July 2003, in view of the serious irregularities
Third, and in the alternative, the applicants submit that even            which allegedly took place in Eurostat, the Commission
without taking account of the imports free of duty of white
                                                                          decided to move all Eurostat’s directors, including the appli-
sugar from the Balkans in assessing domestic supply, the                  cant, to posts as Principal Advisers. On 1 October 2003, the
Commission should not deemed Italy to be a ‘deficit area’.                Commission decided on a new structure for the reformed DG
                                                                          ESTAT departments and decided that, in principle, it would
                                                                          open applications for the posts in the new directorates to both
(1) OJ L 162 of 1.7.2003, p. 24.
                                                                          external and internal applicants, without taking account of the
(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
    common organisation of the markets in the sugar sector (OJ            applicant. The applicant contests both those decisions claiming
    L 178 of 30.6.2001, p. 1).                                            that the alleged irregularities within Eurostat took place until
                                                                          2001 at the latest, while she was not posted there until 2003
                                                                          and was thus not involved in them. In support of her
                                                                          application, she alleges infringement of Articles 4, 7, 24, 25
                                                                          and 47 of the Staff Regulations, breach of the principle of
                                                                          equal treatment and of prohibition of discrimination, the
                                                                          principle of sound administration, the principles ‘audi alteram
                                                                          partem’ and ‘patere legem’, manifest error of assessment, abuse
                                                                          of process and misuse of powers.
Action brought on 6 October 2003 by Gabrielle Clotuche
  against the Commission of the European Communities
                         (Case T-339/03)
                         (2003/C 289/69)
                                                                          Action brought on 2 October 2003 by Wanadoo Inter-
                   (Language of the case: French)                         active S.A. against the Commission of the European
                                                                                                     Communities
                                                                                                   (Case T-340/03)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                                                   (2003/C 289/70)
European Communities on 6 October 2003 by Gabrielle
Clotuche, residing in Brussels, represented by Pierre-Paul Van
Gehuchten, Gilbert Demez Jacques Sambon, lawyers.                                             (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
—     annul the decision of the Commission of 9 July 2003 to              ties was brought before the Court of First Instance of the
      reassign the applicant by transfer in the interest of the           European Communities on 2 October 2003 by Wanadoo
      service from her post as Director of the Social Statistics          Interactive S.A., whose registered office is in Issy-les-Mou-
      Directorate at Eurostat to a post as Principal Adviser at           lineaux (France), represented by O.W. Brouwer, H. Calvet,
      Eurostat;                                                           M. Pittie and J. Philippe, lawyers.
 ---pagebreak--- 29.11.2003              EN                         Official Journal of the European Union                                         C 289/35
The applicant claims that the Court should:                                     —     applied an erroneous test on the coverage of costs
                                                                                      in place of the only relevant test, which showed that
                                                                                      the full costs connected with the services concerned
—     annul the Commission’s decision of 16 July 2003,                                were covered for the whole of the period referred to
      imposing a fine of 10,35 million euros on the applicant;                        in the decision;
—     in the alternative, withdraw the fine or reduce its amount;               —     refused the applicant the right to align its prices on
                                                                                      those charged by its competitors;
—     order the Commission to pay the costs.
                                                                                —     committed a serious error of law, exacerbated by
                                                                                      obvious errors of assessment, in implementing the
                                                                                      test for predatory pricing that it used, particularly
                                                                                      by failing to take account of the highly competitive
Pleas in law and main arguments                                                       market context;
                                                                                —     concluded that a predatory pricing plan existed
The applicant, a French limited liability company 99 %-owned                          without adducing the necessary evidence.
by Wanadoo S.A., which is in turn owned as to 70,6 %
by France Telecom, challenges the Commission’s decision
accusing it of infringing Article 82 of the Treaty by charging             In the alternative, the applicant claims that the fine should be
predatory prices for its Pack eXtense and Wanadoo ADSL                     annulled, or very substantially reduced.
services which did not allow it to cover its variable costs from
March to August 2001 or its full costs from August 2001 until
15 October 2002, as part of plan aimed at pre-empting the
market for high-output internet access services. On that
basis, the Commission imposed a fine on the applicant of
10,35 million euros.
In support of its claims, the applicant argues:                            Action brought on 3 October 2003 by El Corte Inglés S.A.
                                                                           against the Office for Harmonisation in the Internal
—     Infringement of essential procedural requirements, and in                                     Market (OHIM)
      particular of its defence rights, in that the Commission:
                                                                                                    (Case T-341/03)
      —     infringed the principle that violations are to be
            attributed to the offender only, in that it held against
            the applicant matters which it imputes to the ‘France                                   (2003/C 289/71)
            Telecom Group’ and on which neither the applicant
            nor France Telecom were in a position to submit
            observations. In that respect, the applicant insists                             (Language of the case: Spanish)
            that France Telecom and the applicant itself are two
            distinct legal persons;
      —     failed to communicate its final test on the coverage           An action against the Office for Harmonisation in the Internal
            of costs in a statement of objections, and, in its             Market (OHIM) was brought before the Court of First Instance
            decision, determined a duration of the infringement            of the European Communities on 3 October 2003 by El Corte
            longer than that mentioned in the statement of                 Inglés S.A, having its registered office in Madrid, represented
            objections;                                                    by Juan Luis Rivas Zurdo and Emilio López Leiva, lawyers.
      —     gave no reason for abandoning the principle of
            alignment of prices laid down by the Community                 The applicant claims that the Court should:
            case-law.
                                                                           —    set aside the decision of the First Board of Appeal of
—     Infringement of Article 82 of the EC Treaty, in that the                  OHMI of 9 July 2003 in Case R 0565/2002-1;
      Commission:
                                                                           —    refuse to register as a Comunity mark No 488.999
      —     gave an incorrect definition of the market, on which                DAVID LLOYD in Class 25, and
            the applicant had in any case never held a dominant
            position;                                                      —    order the other party or parties to pay the costs.