CELEX: C2001/134/11
Language: en
Date: 2001-05-05 00:00:00
Title: Case C-94/01 P: Appeal brought on 26 February 2001 by La Poste against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France) and CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste

5.5.2001                 EN                   Official Journal of the European Communities                                         C 134/7
—     order the United Kingdom to pay to the Commission of               Appeal brought on 26 February 2001 by La Poste against
      the European Communities, into the account ‘EC own                 the judgment delivered on 14 December 2000 by the
      resources’, a penalty payment of EUR 106 800 for each              Fourth Chamber (Extended Composition) of the Court of
      day of delay in implementing the measures necessary to             First Instance of the European Communities in Case
      comply with the judgment in Case C-56/90 from delivery             T-613/97 between Union Française de l’Express (UFEX),
      of the present judgment until the judgment in Case                 DHL International, Federal Express International (France)
      C-56/90 has been complied with;                                    and CRIE and the Commission of the European Communi-
                                                                         ties, supported by the French Republic, Chronopost SA
                                                                                                    and La Poste
—     order the United Kingdom to pay the costs.
                                                                                                  (Case C-94/01 P)
Pleas in law and main arguments
                                                                                                  (2001/C 134/11)
In its judgment of 14 July 1993, in Case C-56/90 (ECR 1993               An appeal against the judgment delivered on 14 December
p. I-4109), the Court declared that, by failing to take all the          2000 by the Fourth Chamber (Extended Composition) of the
necessary measures to ensure that the quality of the bathing             Court of First Instance of the European Communities in Case
waters in Blackpool and of those adjacent to Southport                   T-613/97 between Union Française de l’Express (UFEX), DHL,
conformed to the limit values set in accordance with Article 3           International, Federal Express International (France) and CRIE
of Council Directive 76/160/EEC of 8 December 1975 con-                  and the Commission of the European Communities, supported
cerning the quality of bathing water, the United Kingdom had             by the French Republic, Chronopost SA and La Poste, was
failed to fulfil its obligations under the EEC Treaty.                   brought before the Court of Justice of the European Communi-
                                                                         ties on 26 February 2001 by La Poste, represented by
                                                                         H. Lehman, Avocat, with an address for service in Luxembourg.
Article 228(1) of the EC Treaty requires a Member State to
take the necessary measures to comply with a judgment by the
Court which finds that it has failed to fulfil an obligation under       The appellant claims that the Court should:
the Treaty.
                                                                         —     set aside the judgment of the Court of First Instance of
                                                                               14 December 2000 in so far as it annuls Article 1 of
There cannot be any doubt that, in the present case, the United                Commission Decision 98/365/EC of 1 October 1997
Kingdom should long since have taken all the necessary                         concerning alleged State aid granted by France to SFMI-
measures to ensure that the quality of the bathing waters in                   Chronopost (1) in so far as it finds that the logistical
Blackpool and of those adjacent to Southport conform to                        and commercial assistance provided by La Poste to its
the limit values set in accordance with Article 3 of the                       subsidiary SFMI-Chronopost does not constitute State aid
aforementioned directive. Over six years had already passed                    to SFMI-Chronopost;
since the Court gave its judgment by the time the Commission
issued its reasoned opinion. At this time, six out of the nine
bathing waters in question still failed to comply with the               —     order Union Française de l’Express, DHL, International,
directive.                                                                     Federal Express International and CRIE to pay the costs
                                                                               incurred by La Poste in the proceedings before both the
                                                                               Court of First Instance and the Court of Justice.
In accordance with Article 228(2) of the EC Treaty, the
Commission asks the Court to impose a penalty payment of
EUR 106 800 on the United Kingdom for each day’s delay in
implementing the Court’s judgment in Case C-56/90, begin-                Pleas in law and main arguments
ning from the day on which the Court gives its judgment in
the present case.                                                        —     Contradictory and insufficient statement of reasons
                                                                               The Court of First Instance purports to apply the private
                                                                               investor test, but instead its method consists in appraising
(1) of 8 December 1975 concerning the quality of bathing water (OJ             the impact of the reserved service. In requiring account
    L 31, 5.2.1976, p. 1).                                                     to be taken of a private undertaking with no reserved
                                                                               sector, the Court of First Instance draws a comparison
                                                                               between public owners and private owners with no
                                                                               reserved sector but does not treat the public owner and
                                                                               the private owner in the same way. A private owner with
                                                                               a reserved sector would never be required to take into
 ---pagebreak--- C 134/8                EN                   Official Journal of the European Communities                                        5.5.2001
      account the impact of the reserved sector when setting its       Galileo International, LLC, established in Rosemount, Illinois,
      charges for services in the competitive sector. It would         United States of America, represented by Mr Richard Plender
      merely be required to comply with Akzo (2), that is to say,      QC, instructed by Ms Katherine Holmes and Mr Daniel Austin,
      to cover at least its variable costs.                            solicitors, of Richards Butler, with an address for service in
                                                                       Luxembourg.
      The judgment does not explain how reserved rights
      affected costs; nor does it indicate how that should have
      been determined.
                                                                       The Appellants seek the following orders from the Court of
—     Infringement of Article 88 EC                                    Justice:
      The judgment disregards the broad discretion attributed
      to the Commission in relation to complex appraisals of           1.    That the Contested Order be set aside.
      an economic nature. However, it is clear from Article 88
      EC that the Commission must enjoy a broad discretion,
      not only in order to assess whether State aid is compatible      2.    That the plea of admissibility raised by the Council
      with the common market, but also to classify a measure                 and supported by the Commission as interveners be
      as State aid when the form of State intervention under                 dismissed.
      investigation is complex.
—     Infringement of Article 87 EC                                    3.    That the Application be declared admissible.
      The judgment errs in holding that all advantages con-
      ferred by the State constitute aid; on the contrary, only        4.    That the case be referred back to the CFI so that the CFI
      the transfer of financial resources may be so classified.              may determine the Application on the merits.
      The judgment has distorted the notion of normal market
      conditions.                                                      5.    That the Council do pay the costs of this appeal and the
                                                                             costs of determining the Council’s plea of admissibility,
                                                                             including the costs of responding to the Commission’s
(1) OJ L 164 of 9.6.1998, p. 37.                                             Statement of Intervention.
(2) Case C-62/86 (1991) ECR I-3359.
                                                                       Pleas in law and main arguments
                                                                       a)    In finding that the contested measure concerns the
Appeal brought on 27 February 2001 by Galileo Company                        applicants in their objective capacity as ‘system’ vendor,
and Galileo International, LLC against the order dated                       in the same way as any other system vendor, the CFI
15 December 2000 of the Second Chamber of the Court                          erred in law in the following material respects:
of First Instance of the European Communities in case
T-113/99 (1) between Galileo Company and Galileo Inter-
national, LLC, supported by Amadeus Global Travel
                                                                             i)    By failing to take into account and apply the
Distribution SA, and Council of the European Union,
                                                                                   consistent case law of the Court of Justice that an
supported by Commission of the European Communities
                                                                                   individual trader, that forms part of a group of
                                                                                   traders that are fixed and identifiable when the
                         (Case C-96/01 P)                                          contested measure is made, may nevertheless be
                                                                                   individually concerned by that measure. Such a
                                                                                   trader may be individually concerned to the extent
                         (2001/C 134/12)                                           that the measure applies to undertakings engaged in
                                                                                   the relevant trade at the time when it was adopted,
An appeal against the order dated 15 December 2000 of the                          and the measure fails to make transitional arrange-
Second Chamber of the Court of First Instance of the European                      ments to protect them against substantial detriment.
Communities in case T-113/99 between Galileo Company and
Galileo International, LLC, supported by Amadeus Global
Travel Distribution SA, and Council of the European Union,                   ii)   By failing to appreciate that the fact that a measure
supported by Commission of the European Communities,                               may be of legislative nature applying to a category
was brought before the Court of Justice of the European                            of traders in general does not prevent it in certain
Communities on 27 February 2001 by Galileo Company,                                circumstances from affecting some of the market
established in Windsor, Berkshire, United Kingdom, and                             participants concerned individualy.