CELEX: C2001/245/43
Language: en
Date: 2001-09-01 00:00:00
Title: Case T-139/01: Action brought on 19 June 2001 by Comafrica SpA and Dole Fresh Fruit Europe Ltd. & Co. against the Commission of the European Communities

C 245/26               EN                     Official Journal of the European Communities                                        1.9.2001
The dispute between the parties concerns the question of the             Pleas in law and main arguments
costs which the applicant must bear, in accordance with
Article 6 of Regulation (EC) No 1135/1999, in its capacity as
a party awarded a contract for the procurement of agricultural           The applicant contests the abovementioned recovery decision
products.                                                                of the Commission demanding partial repayment of a total
                                                                         sum of EUR 20 000 transferred to the applicant in the
                                                                         context of the Eurathlon programme, in the amount of
The applicant argues that Article 6 of Regulation (EC)                   DEM 31 911,11, on the ground of impermissible profit.
No 1135/1999 does not oblige the party awarded the procure-
ment contract to draw up the transport documents for the
delivery of the goods to Russia by the party awarded the                 The applicant submits that the conditions for a demand for
transport contract, or to bear the costs thereof. All costs arising      repayment of the subsidy given, agreed between the parties
from the transport side of the tender were the responsibility of         when the subsidy was granted, are not met. In particular, the
the party awarded the transport contract. It was impossible for          final accounts for the project do not show a profit, so that the
the procurer to supply appropriate transport documents.                  demand for repayment is unlawful. The defendant might at
                                                                         most be entitled to a proportionate share of 18,4 % of the
                                                                         surplus. It is, however, demanding payment of the entire
In the alternative, the applicant bases its claim on failure by          (incorrectly calculated) surplus.
the Commission to fulfil its precontractual duty of providing
information. As the interpretation of the provision in dispute,
and thus the scope of the contractual obligation, was not                Moreover, the applicant relies on limitation of the defendant’s
clearly formulated, the Commission should have informed the              claims. It submits that the ISO 1994 event took place in 1994,
applicant on the point. Failure to provide such information              and any claims for repayment arose in that year. The notice to
caused loss to the applicant.                                            pay dates from 9 April 2001, however, and was therefore
                                                                         made at least six years in law after the alleged debt arose.
(1) In accordance with Council Regulation (EC) No 2802/98 of
    17 December 1998 on a programme to supply agricultural
    products to the Russian Federation (OJ 1998 L 349, p. 12) and
    Commission Regulation (EC) No 111/1999 of 18 January 1999
    laying down general rules for the application of Council Regu-
    lation (EC) No 2802/98 on a programme to supply agricultural
    products to the Russian Federation (OJ 1999 L 14, p. 3).             Action brought on 19 June 2001 by Comafrica SpA
(2) OJ 1999 L 135, p. 85.                                                and Dole Fresh Fruit Europe Ltd. & Co. against the
(3) OJ 1999 L 242, p. 13.                                                         Commission of the European Communities
                                                                                                  (Case T-139/01)
                                                                                                 (2001/C 245/43)
Action brought on 19 June 2001 by Stadtsportverband
Neuss e.V. against Commission of the European Com-                                          (Language of the case: English)
                             munities
                                                                         An action against the Commission of the European Communi-
                         (Case T-137/01)                                 ties was brought before the Court of First Instance of the
                                                                         European Communities on 19 June 2001 by Comafrica SpA,
                         (2001/C 245/42)                                 Genoa, Italy, and Dole Fresh Fruit Europe Ltd. & Co., Ham-
                                                                         burg, Germany, represented by Bernard O’Connor and Philip
                                                                         Bastos G. Martin of O’Connor and Company, Brussels
                   (Language of the case: German)                        (Belgium).
An action against the Commission of the European Communi-                The applicant claims that the Court should:
ties was brought before the Court of First Instance of the
European Communities on 19 June 2001 by Stadtsportver-                   —     declare the application admissible;
band Neuss e.V. of Neuss, Germany, represented by Heinz
Günther Hüsch, lawyer.                                                   —     declare void, pursuant to Articles 230 and 231 EC,
                                                                               Commission Regulation (EC) No 896/2001 in so far as it
                                                                               affects the applicants, or in the alternative to declare the
The applicant claims that the Court should:                                    said regulation void erga omnes;
—      Annul the recovery decision of the European Commission            —     declare void, pursuant to Articles 230 and 231 EC,
       of 9 April 2001, account number 3240302372;                             Commission Regulation (EC) No 1121/2001 in so far as
                                                                               it affects the applicants, alternatively, to declare the said
—      Order the defendant to pay the costs.                                   regulation void erga omnes;
 ---pagebreak--- 1.9.2001                EN                     Official Journal of the European Communities                                      C 245/27
—     order the Commission, pursuant to Articles 235 and the                    Commission has exceeded the powers granted to it by
      second paragraph of 288 EC, to make good the damage                       the Council to manage the banana Common Market
      caused to the applicants by the wrongful adoption of                      Organisation lawfully in accordance with good adminis-
      either or both Regulation No 896/2001 and Regulation                      trative practice.
      No 1121/2001, and to pay compensatory interest on all
      sums found to be due, such interest to run from the date            —     The Commission has infringed the applicants’ right to
      on which the damage materialised;                                         have their full entitlement to licences respected, and has
                                                                                allowed certain operators to gain inappropriate rights.
—     make any orders which the Court considers necessary
      and in particular, pursuant to Article 65 of the Rules of           (1) OJ L 126 of 8.5.01, p. 6.
      Procedure of the Court of First Instance, to request the            (2) OJ L 153 of 8.6.01, p. 12.
      Commission to provide figures concerning the actual
      licence usage for 1994, 1995, 1996; and
—     order the Commission to pay the costs of the proceedings.
                                                                          Action brought on 18 June 2001 by Paul Doyle against
                                                                                   Commission of the European Communities
Pleas in law and main arguments
                                                                                                   (Case T-140/01)
The present application concerns two regulations:                                                  (2001/C 245/44)
—     Commission Regulation (EC) No 896/2001 of 7 May                                        (Language of the case: French)
      2001 laying down detailed rules for applying Council
      Regulation (EEC) No 404/93 as regards the arrangements
      for importing bananas into the Community (1); and                   An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 18 June 2001 by Paul Doyle,
—     Commission Regulation (EC) No 1121/2001 of 7 June                   residing in Brussels, represented by Jean-Noël Louis and
      2001 fixing the adjustment coefficients to be applied to            Véronique Peere, lawyers.
      each traditional operator’s reference quantity under the
      tariff quotas for imports of bananas (2).
                                                                          The applicant claims that the Court should:
                                                                          —     annul the decision of the Commission to limit to
The applicants submit that:                                                     EUR 1 880 .10 the amount transferable to the United
                                                                                Kingdom with effect from October 2000;
—     The method which the Commission has adopted in
      Article 4(1) of Regulation No 896/2001 for calculating              —     order the defendant to pay the costs.
      operator reference quantities is illegal, inasmuch as it
      fixes those quantities by reference to total figures which
      the Commission must know to be substantially incorrect.
                                                                          Pleas in law and main arguments
      In addition, Regulation No 896/2001 precludes the
      correction of reference quantities either by the Com-
      mission itself or by the Member States acting as its agents.        The applicant, an Irish national, has lived for several years in
                                                                          the United Kingdom, having been assigned to a post in
                                                                          Brussels. He challenges the Commission’s decision to limit the
—     Regulation No 1121/2001 fixes the Applicant’s
                                                                          amount transferable to the United Kingdom to 19 % of his net
      entitlement to licences for the second half of 2001 and
                                                                          salary. In support of his application, the applicant alleges
      was adopted on the basis of Article 5 of Regulation
                                                                          infringement of Article 17 of Annex VII to the Staff Regulations
      No 896/2001. As to what is claimed to be the incorrect
                                                                          and invalidity of the general provisions implementing it.
      reference quantities adopted on the basis of Article 4 of
                                                                          According to the applicant, the Commission was required to
      Regulation No 896/2001, an essential element in the
                                                                          transfer a higher rate on account of the regular expenditure
      calculation of the adjustment coefficient, the adjustment
                                                                          which he continues to incur in the United Kingdom and in
      coefficient itself is incorrect and illegal.
                                                                          respect of his dependent children who are pursuing their
                                                                          studies there.
—     In adopting both these Regulations, on the basis of facts
      that the Commission must know to be incorrect, the