CELEX: C2001/134/10
Language: en
Date: 2001-05-05 00:00:00
Title: Case C-85/01: Action brought on 20 February 2001 by the Commission of the European Communities against the United Kingdom

C 134/6                 EN                     Official Journal of the European Communities                                          5.5.2001
      —     at paragraph 66: the claim for damages to make                     —     it is at the very least contradictory to use as evidence,
            reparation for the damage caused by the reprisals is                     in the procedure before the Court, an administrative
            inadmissible in the absence of proper pre-litigation                     enquiry which was conducted in a manner which
            procedure beforehand.                                                    was censured by the Court of First Instance itself,
                                                                                     and the results of which are challenged by the
                                                                                     applicant.
      —     at paragraph 67: the claim for compensation does
            not fall within the jurisdiction of the Court, in view             —     it is altogether contradictory for the Court of First
            of the form of order sought;                                             Instance to make use of earlier staff reports in order
                                                                                     to put in question the applicant’s abilities and thus
                                                                                     prove that her problems at work could not be
      —     at paragraph 68: annulment of the contested
                                                                                     attributed to sexual harassment. Its reasoning does
            decision is sufficient to make good the non-material
                                                                                     not moreover settle the question whether the failure
            damage caused to the applicant by the uncertainty
                                                                                     to reward the applicant for progress is not in fact
            in which the Commission left her as regards the
                                                                                     the result of her refusal to succumb to the pressures
            action it proposed to take on her request for
                                                                                     of sexual harassment.
            assistance and the results of its administrative
            enquiry;
                                                                          —    Infringement of Community law and the relevant case-
                                                                               law on new pleas in law.
      —     at paragraph 69: the applicant has not established to
            the requisite legal standard the damage caused by             —    Justice denied in respect of liability.
            having been exposed to the consequences of having
            complained of sexual harassment, to which the
                                                                          —    Infringement of the rights of the defence: the Court of
            Commission was indifferent.
                                                                               First Instance unreasonably drew inferences from an
                                                                               administrative enquiry which was contested by the appli-
      —     at paragraph 70: the applicant did not adduce the                  cant who had not been able to submit observations or be
            abovementioned evidence with regard either to the                  present to hear the evidence of witnesses or of the person
            conduct prior to the incident of 27 February 1997                  accused of the conduct under investigation.
            or the incident itself;
—     recognise that there was sexual harassment and that non-
      material damage was caused to the appellant;
—     order the defendant to pay damages together with interest
      in an amount to be determined by the Court;                         Action brought on 20 February 2001 by the Commission
                                                                          of the European Communities against the United
                                                                                                        Kingdom
—     order the defendant to pay the costs of these proceedings.
                                                                                                     (Case C-85/01)
Pleas in law and main arguments                                                                     (2001/C 134/10)
—     Breach of the obligation to state reasons:                          An action against the United Kingdom was brought before the
                                                                          Court of Justice of the European Communities on 20 February
                                                                          2001 by the Commission of the European Communities,
      —     by simply annulling the implied rejection, the Court          represented by Mr Richard Wainwright, acting as Agent, with
            of First Instance has altered the degree of seriousness       an address for service in Luxembourg.
            of the Commission’s failure to fulfil its obligations
            after criticising the Commission at length in the
            grounds of the judgment, thus leading to a regret-            The Applicant claims that the Court should:
            table contradiction in those grounds.
                                                                          —    declare that, by failing to ensure that the bathing waters
                                                                               in Blackpool and adjacent to Southport comply with the
      —     by stating, first, that the applicant did not prove that           limit values set in accordance with Article 3 of Council
            she had in fact suffered sexual harassment and,                    Directive 76/160/EEC (1), in compliance with the judg-
            secondly, by acknowledging the existence of conduct                ment of the Court of Justice in Case C-56/90 delivered on
            falling within the scope of sexual harassment in the               14 July 1993, the United Kingdom has failed to fulfil its
            same judgment, the Court of First Instance has                     obligations under paragraph 1 of Article 228 of the EC
            contradicted itself in its grounds.                                Treaty;
 ---pagebreak--- 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