CELEX: C1998/378/36
Language: en
Date: 1998-12-05 00:00:00
Title: Action brought on 29 September 1998 by Société Internationale de Diffusion et d'Édition (SIDE) against the Commission of the European Communities (Case T-155/98)

5.12.98              EN                  Official Journal of the European Communities                                      C 378/19
    Action brought on 20 September 1998 by De Haan                  On 24 April 1998 the Netherlands brought an action
    Beheer BV against the Commission of the European                contesting that decision (Case C-157/98). The applicant
                        Communities                                 endorses the arguments advanced by the Netherlands
                      (Case T-150/98)                               Government and adopts those arguments as its own.
                       (98/C 378/35)                                In particular, the applicant advances the following pleas in
                                                                    law:
              (Language of the case: Dutch)
                                                                    1. First, infringement of Article 13(1) of Regulation
                                                                         (EEC) No 1430/79, alternatively of Article 239(2) of
An action against the Commission of the European                         the Community Customs Code:
Communities was brought before the Court of First
Instance of the European Communities on 20 September                     The Netherlands customs investigation authorities
1998 by De Haan Beheer BV, established at Alblasserdam                   knew of the fraud in advance, and were aware of it by
(Netherlands), represented by C. F. W. A. Hamm, of the                   the time that the first consignment had been
Dordrecht Bar, in his capacity as administrator in the                   despatched. However, they took no action in relation
insolvency of De Haan Beheer BV.                                         to it, with the result that the transport operations were
                                                                         able to proceed and the applicant, without being
The applicant claims that the Court should:                              aware of the fraud, incurred an unnecessarily
                                                                         substantial customs debt.
Ð annul Decision REM 15/97 of the Commission of                          The applicant complains, with reference to
    18 February 1998;                                                    paragraph 132 of the Judgment of the Court of First
                                                                         Instance of 19 February 1998 in Case T-42/96
                                                                         (Eyckeler & Malt v. Commission), that the
Ð rule that the present case concerns special
    circumstances justifying a refund in accordance with                 Commission has failed to comply with the principle of
                                                                         Community law requiring the exercise of due care, as
    Article 13 of Council Regulation (EEC) No 1430/
    79 (1);                                                              regards the recognition of special circumstances within
                                                                         the meaning of Article 13 of Regulation (EEC)
                                                                         No 1430/79.
Ð order the Commission to pay the costs.
                                                                    2. Breach of the obligation to provide a statement of
                                                                         reasons:
Pleas in law and main arguments adduced in support:
                                                                         The Commission has failed to provide any reasons for
In 1993 the applicant, as an authorised consignor, issued                its assertion that there is insufficient proof of the
internal Community transit documents for the                             involvement of a Belgian customs official in the fraud,
transportation of cigarettes, the Office of destination being            and that, for that reason, no special situation can be
in Antwerp.                                                              said to exist.
                                                                    (1) Council Regulation (EEC) No 1430/79 of 2 July 1979 on the
However, those goods were not presented at the Office of                repayment or remission of import or export duties (OJ L 175,
destination; the transport documents bore false stamps                  12.7.1979, p. 1).
and signatures. On account of the non-presentation of the
goods, a customs debt arose.
The applicant declared that it had acted in good faith and
that it had been the victim of fraudulent acts committed
by organised criminal gangs. It applied for remission of            Action brought on 29 September 1998 by SocieÂteÂ
the import duties on the basis of Article 13(1) of                  Internationale de Diffusion et d'EÂdition (SIDE) against
Regulation (EEC) No 1430/79, which provides for such                        the Commission of the European Communities
remission where there are special circumstances in which                                    (Case T-155/98)
no negligence or deception may be attributed to the
                                                                                             (98/C 378/36)
person concerned.
                                                                                    (Language of the case: French)
The Commission rejected that application by decision of
18 February 1998, on the grounds that the declarant is              An action against the Commission of the European
responsible for ensuring that a Community transit                   Communities was brought before the Court of First
operation proceeds in the correct manner, that fraudulent           Instance of the European Communities on 29 September
acts by third parties constitute a normal commercial risk,          1998 by SocieÂteÂ Internationale de Diffusion et d'EÂdition
that the declarant is responsible for the acts of any               (SIDE), established in Bagneux (France), represented by
member of his staff who is involved in fraud, and that it           Nicole Coutrelis, of the Paris Bar, with an address for
had not beeen shown that any Belgian customs official               service in Luxembourg at the Chambers of Marc Loesch,
was involved.                                                       11 Rue Goethe.
 ---pagebreak--- C 378/20             EN                  Official Journal of the European Communities                                  5.12.98
The applicant claims that the Court should:                         in particular the definition of the market, the
                                                                    proportionality of the aid and the state of competition in
                                                                    the sector.
Ð annul the last sentence of Article 1 of the Commission
     decision of 10 June 1998 on State aid for CoopeÂrative
     d'exportation du livre francËais (CELF)';                      In addition, it alleges breach of the prohibition of
                                                                    discrimination in that the Commission authorised aid
                                                                    granted to one undertaking only and there was no
Ð order the Commission to pay the costs.                            objective justification for the different treatment thus
                                                                    afforded the other undertakings on the market.
Pleas in law and main arguments adduced in support:
                                                                    Finally, the applicant alleges breach of the fourth
The applicant, the same as in Case T-49/93 SIDE v.                  subparagraph of Article 93(2) of the Treaty.
Commission (1), challenges the decision whereby the
Commission declared that State aid granted to                       (1) Judgment of 18 September 1995 in Case T-49/93 SIDE v.
CoopeÂrative d'exportation du livre francËais (CELF) was                Commission [1995] ECR II-2501.
compatible with the common market in accordance with
Article 92(3)(d) of the Treaty. In support of that assertion,
the Commission states in the decision that the aid in
question has a cultural purpose and does not affect
trading conditions to an extent contrary to the common
interest.                                                           Action brought on 30 September 1998 by GracËa Oliveira
                                                                                  against the European Parliament
The applicant points out in this connection that, by                                      (Case T-157/98)
judgment of 18 September 1995, cited above, the Court of
First Instance of the European Communities had annulled                                     (98/C 378/37)
a Commission decision concerning aid granted exclusively
to CELF for handling small orders, on the ground that the                          (Language of the case: French)
Commission had failed to comply with its obligation to
initiate the inter partes procedure provided for by
Article 93(2) of the Treaty.                                        An action against the European Parliament was brought
                                                                    before the Court of First Instance of the European
                                                                    Communities on 30 September 1998 by GracËa Oliveira,
In support of its claims, the applicant first of all alleges a      residing in Luxembourg, represented by Jean-NoeÈl Louis
procedural defect, in that the Commission failed to                 and FrancËoise Parmentier, of the Brussels Bar, with an
undertake a thorough and impartial investigation of the             address for service in Luxembourg at the Offices of
complaint and the observations of all the persons                   Fiduciaire Myson SARL, 30 Rue de Cessange.
concerned. On that point, it claims that there was unequal
treatment in the conduct of the proceedings, inasmuch as
CELF was closely involved in that procedure and was thus            The applicant claims that the Court should:
able to put forward its point of view as to the
proportionality of the aid it received. Furthermore, in the         Ð annul the Parliament's decision not to promote the
light of the fact that one of the most important facts                   applicant to grade B 4 in the 1997 promotions
adduced by the applicant in its observations was precisely               procedure;
the rebuttal of the actual definition of a small order, it
seems contrary to the principle of impartiality that it was
in the end CELF alone that the Commission invited to                Ð order the defendant to pay the costs.
supply it with information on this crucial point.
                                                                    Pleas in law and main arguments adduced in support:
Moreover, the applicant considers it remarkable to find,
on reading the contested decision, that the Commission              According to the applicant, the contested decision was
has not expressed any view on the fundamental issues in             adopted in breach of Article 45 of the Staff Regulations.
the matter, namely: the true nature of the recipient of the         The appointing authority failed to undertake a proper
aid, the analysis of the market, the definition of a small          assessment of the merits of the officials eligible for
order and the proportionality of the aid. From that point           promotion, inasmuch as it did not take into account
of view, it also alleges failure to provide reasons, all the        criteria such as the priority recommendation made by her
more serious in the circumstances as the aid in question is         Director-General and the level of responsibility which she
one that, a priori, cannot be given the benefit of any              actually assumed.
derogation, since it is operating aid for exports granted to
a single undertaking and is not intended to disappear or
lessen with time.                                                   By omitting to provide the applicant with a precise and
                                                                    pertinent statement of the reasons for its decision not to
                                                                    follow the recommendation of the Joint Promotion
The applicant also claims that the contested decision               Committee, the appointing authority infringed Article 25
contains several manifest errors of assessment, as regards          of the Staff Regulations.