CELEX: C1998/055/55
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 9 December 1997 by The Bavarian Lager Company Limited against the Commission of the European Communities (Case T-309/97)

C 55/26               EN                 Official Journal of the European Communities                                   20.2.98
     also, as the case may be, the subsequent period during         Instance of the European Communities on 2 December
     which his widow receives a widow's pension,                    1997 by Alzetta Mauro, Antonini Maria Luisa, Avon
                                                                    Maria Angela, Avon Pietro, Biasotto Marzio, Bianchin
                                                                    Roberto, Bagatin Venanzio, Bit Leo, Bortolus Giuseppe,
Ð order the defendant to pay the costs.
                                                                    Bortolussi Urbano, Brovedani Francesco, Bot Roberto,
                                                                    Carcione Leone, Casagrande Elio, Cicagna Giuseppe,
Pleas in law and main arguments adduced in support:                 Cogato Luigi, Corradini Franco, Cozzi Aldo, Dal Pos
                                                                    Marinella, De Re Guido, De Zotti Giovanni, Favalessa
                                                                    Enzo, Furlan Giuseppe, Marchese Michelino, Marson
From March 1991 the applicant, who has been in
                                                                    Graziella, Miorini Pierluigi, Picolo Claudio, Pinna Mario,
retirement since 1 November 1996, was a grade A 4
                                                                    Pivetta Giorgio, Pivetta Luciano Stelvio, Pizzolitto Enrico,
official employed as the Head of the large and important
                                                                    Sferruggia Mariano, represented by Antonia Pili, of the
Management Support Unit of the Joint Research Centre at
                                                                    Pordnone Bar, Anselmo Barone and Giancarlo Pezzano, of
Ispra. He claims that, before being transferred to that
                                                                    the Rome Bar, with an address for service in Luxembourg
post, he was told by his then superior that this must and
                                                                    at the Chambers of Louis Schiltz, 2, rue du Fort
would lead to his promotion to grade A 3. However, he
                                                                    Rheinsheim.
was subsequently denied that promotion. The applicant is
now contesting the failure to grant him the promotion
promised to him in 1991, the continuing failure to                  The applicants claim that the Court should:
promote him during the period from 1991 to 1996 and
the fact that he was not promoted in 1996 with
retroactive effect from 1 November 1995. To that end, the           Ð annul Commission Decision C(97) 2735 final of
applicant invokes the prohibition of discrimination and/or               30 July 1997,
the principle of equal treatment, together with the duty
incumbent on the defendant to have regard for the
interests and welfare of officials, since the applicant, like       Ð in the alternative, annul Article 5 of that Decision
the other heads of units within the administration of the                inasmuch as it requires the Member State to recover
Joint Research Centre, was entitled to be employed in an                 the aid (granted as from 1 July 1990), together with
A 3 post. The applicant bases his claim for compensation                 the interest accrued as from the date on which the aid
on the fact that the manner in which the specific                        was paid,
procedure for the promotion of officials to grade A 3 was
held in 1996 was legally open to challenge. Thus, not only          Ð in any event, order the Commission of the European
were the reports concerning the applicant not produced by                Communities to pay the costs.
the due date; in addition, the contemporary reports were
not submitted during the course of the selection
procedure. Had the procedure been correctly followed, the           Pleas in law and main arguments adduced in support:
applicant would have been promoted, with retroactive
effect from 1 November 1995, to an A 3 post becoming
vacant following the retirement of another official. Before         The pleas in law and main arguments are similar to those
himself going into retirement, the applicant would have             relied upon in Case T-288/97 Regione Friuli-Venezia
worked for a whole year in that position. He therefore              Giulia v. Commission (1).
claims that he is entitled to be placed in the position in
which he would have found himself if the defendant had              (1) Not yet published in the Official Journal.
fulfilled its obligations in the correct manner. This means
that he is entitled to receive compensation for the material
damage suffered by him, in the form of payment of the
difference between the remuneration of an A 4 official and
an A 3 official, together with a corresponding adjustment
in respect of pension payments.
                                                                    Action brought on 9 December 1997 by The Bavarian
                                                                    Lager Company Limited against the Commission of the
                                                                                        European Communities
                                                                                            (Case T-309/97)
                                                                                              (98/C 55/55)
Action brought on 2 December 1997 by Mauro Alzetta
and Others against the Commission of the European
                         Communities                                                (Language of the case: English)
                       (Case T-298/97)
                         (98/C 55/54)                               An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 9 December
                (Language of the case: Italian)
                                                                    1997 by the Bavarian Lager Company Limited,
                                                                    represented by Stephen Hornsby, with an address for
An action against the Commission of the European                    service in Luxembourg at the Chambers of AndreÂ Marc,
Communities was brought before the Court of First                   56Ð58 rue Charles Martel.
 ---pagebreak--- 20.2.98               EN                   Official Journal of the European Communities                                    C 55/27
The applicant claims that the Court should:                           April 1997 that in view of the proposed review of the
                                                                      GBP the Article 169 procedure had been suspended and
                                                                      the reasoned opinion had not been served on the United
Ð annul the Commission's Decision dated 16 May 1997,                  Kingdom Government.
     9 July 1997 and 18 September 1997 in so far as it
     relates to refusal of access to the following documents:
                                                                      The applicant remains of the opinion that the amended
                                                                      GBP still contravenes Article 30 and that the Commission
     The reasoned opinion of the Commission formulated                was mistaken in its decision to terminate the Article 169
     following an investigation into the provisions of                procedure against the United Kingdom. It considers that
     Article 7(3) of The Supply of Beer (Tied Estates) Order          access to the reasoned opinion will assist in its action
     1989 SI 1989/2390,                                               against the United Kingdom Government because that
                                                                      opinion will formally reflect the Commission's views as to
                                                                      the legality under Community law of the GBP as
Ð order that the Commission pay the costs of these                    originally drafted and will enable the applicant's legal
     proceedings.                                                     representatives to advise at a preliminary stage on the
                                                                      likelihood of success in an action against the United
                                                                      Kingdom Government before undertaking the expense of
Pleas in law and main arguments adduced in support:
                                                                      litigation.
The applicant, an importer of German beer mainly for
sale in public houses and bars in the North of England,               Nevertheless, the Commission refused repeated requests by
found itself unable to sell its products as a large number            the applicant for a copy of the reasoned opinion on the
of public houses in the United Kingdom are covered by                 ground that refusal to grant access to the reasoned
tie' arrangements under which they are obliged to                    opinion was justified where disclosure could undermine
purchase their supplies of beer from particular brewers               the protection of the public interest, in particular where
under exclusive purchasing agreements and because of the              Commission inspections          and investigations       were
overwhelming market dominance enjoyed by the major                    concerned. This exception is provided for in the Code of
British brewers.                                                      Conduct concerning public access to Commission and
                                                                      Council documents, adopted by the Commission on
                                                                      8 February 1994.
In 1989 The Supply of Beer (Tied Estate) Order 1989 SI
1989/2390 was brought into effect by the United Kingdom
Government. This order provided that those UK brewers                 The applicant submits that this approach is contrary to
with an interest in more than 2 000 pubs would be                     this Code of Conduct which provides that the public will
obliged to allow the tenants of those pubs the opportunity            have the widest possible access to documents held by the
to purchase a guest beer' from another brewery.                      Commission'. Furthermore, it is in particular contrary to
Article 7(2)(a) (known as the Guest Beer Provision GBP')             the legal principles set forth by the Court of First Instance
provided that the guest beer should be a cask                        in Case T-105/95 (WWF UK Worldwide Fund for Nature
conditioned' beer with an alcoholic strength exceeding                v. Commission of the European Communities).
1,2 % by volume.                                                      Fundamental objectives of proper administration,
                                                                      transparency and accountability demand that the reasoned
                                                                      opinion be released to the applicant as requested.
This provision had the effect of barring the applicant's
product from the pubs controlled by the regional brewers.
Therefore, the applicant contends that the GBP represents
a measure having an effect equivalent to a quantitative
restriction on imports and is therefore illegal pursuant to
Article 30 of the EC Treaty. By effectively denying the
British public the opportunity to taste German beer, the              Action brought on 16 December 1997 by Nederlandse
GBP restricts competition and consumer choice at both                      Antillen against the Council of the European Union
wholesale and retail levels.
                                                                                             (Case T-310/97)
                                                                                               (98/C 55/56)
Having regard to these circumstances, the applicant
submitted a complaint to the Commission in April 1993,
which by notification to the applicant in September 1995                             (Language of the case: English)
initiated an investigation into the GBP and had served a
notice on the United Kingdom Government to that effect
in accordance with the procedure laid down in Article 169             An action against the Council of the European Union was
of the EC Treaty. After a press release issued by the                 brought before the Court of First Instance of the European
Commission in August 1996 announcing that the decision                Communities on 16 December 1997 by Nederlandse
had been taken to serve a reasoned opinion on the United              Antillen, represented by P. V. F. Bos and M. M. Slotboom,
Kingdom Government, the United Kingdom Government                     of the Rotterdam Bar, with an address for service in
announced a proposal to amend the GBP. As a result of                 Luxembourg at the offices of Loesch & Wolter, 11, rue
this, the applicant was informed by the Commission in                 Goethe.