CELEX: C1998/007/64
Language: en
Date: 1998-01-10 00:00:00
Title: Action brought on 20 October 1997 by Ismeri Europa Srl against the Court of Auditors of the European Communities (Case T-277/97)

C 7/22                 EN                   Official Journal of the European Communities                                       10. 1. 98
In support of the forms of order which it seeks, the                   Pleas in law and main arguments adduced in support:
applicant relies on the following pleas in law:
                                                                       The applicant contests the definitive rejection of the
Ð breach of essential procedural requirements in that, in              complaint which it lodged against the company Volvo
     the contested decision, the Commission gives no                   France on the basis of Article 85 of the EC Treaty and
     reasons for its failure to take action regarding the              Commission Regulation (EEC) No 123/85 (1) concerning
     infringements ante-dating the entry into force of                 the imposition by that company of concession conditions
     Regulation (EC) No 1475/95, which were reported to                which the applicant considers incompatible with that
     it,                                                               Regulation.
Ð infringement of the Treaty, in that the defendant                    The contentions and principal arguments adduced in
     manifestly erred in its appraisal of the facts,                   support are the same as those in Case T-275/95 GueÂrin
                                                                       Automobiles v. Commission (2).
Ð misuse of powers, in that, in repeating in its analysis
     the arguments put forward by Nissan France, the                   (1) Commission Regulation (EEC) No 123/85 of 12 December
                                                                           1984 on the application of Article 85 (3) of the Treaty to
     defendant's intention was to grant an amnesty. Also,                  certain categories of motor vehicle distribution and servicing
     the defendant's attitude runs directly counter to the                 agreements (OJ L 15, 18. 1. 1985, p. 16).
     Community interest as a result of its refusal to ensure           (2) See page 21 of this Official Journal.
     the real effectiveness of Community competition law.
(1) Commission Regulation (EEC) No 123/85 of 12 December
    1984 on the application of Article 85 (3) of the Treaty to
    certain categories of motor vehicle distribution and servicing
    agreements (OJ L 15, 18. 1. 1985, p. 16).
(2) Commission Regulation (EC) No 1475/95 of 28 June 1995 on           Action brought on 20 October 1997 by Ismeri Europa Srl
    the application of Article 85 (3) of the Treaty to certain         against the Court of Auditors of the European
    categories of motor vehicle distribution and servicing                                       Communities
    agreements (OJ L 145, 29. 6. 1995, p. 25).
                                                                                                (Case T-277/97)
                                                                                                  (98/C 7/64)
                                                                                        (Language of the case: Italian)
Action brought on 20 October 1997 by GueÂrin                           An action against the Court of Auditors of the European
Automobiles against Commission of the European                         Communities was brought before the Court of First
                           Communities                                 Instance of the European Communities on 20 October
                         (Case T-276/97)                               1997 by Ismeri Europa Srl, represented by Sergio
                                                                       Ristuccia and Gian Luigi Tosato, of the Rome Bar, with
                            (98/C 7/63)
                                                                       an address for service in Luxembourg at the Chambers of
                                                                       Alex Schmitt, 7, val Ste Croix.
                 (Language of the case: French)
                                                                       The applicant claims that the Court should:
An action against the Commission of the European
Communities was brought before the Court of First
                                                                       (a) declare the Court of Auditors to be liable in damages
Instance on 20 October 1997 by GueÂrin Automobiles,
                                                                             and order it to:
represented       by     Xavier     LemeÂe,      court-appointed
administrator, instructing Jean Claude Fourgoux, of the
Paris Bar, with an address for service in Luxembourg at                      Ð pay an amount which the Court may deem
the Chambers of Pierrot Schiltz, 4, rue BeÂatrix de                               appropriate to make good the damage suffered by
Bourbon.                                                                          the applicant in respect of its reputation,
                                                                             Ð pay ECU 943 725 by way of reparation for
The applicant claims that the Court of First Instance                             material damage suffered as a result of the
should:                                                                           termination of a number of contracts,
Ð annul the Commission decision of 25 April 1997,                            Ð pay an amount to be determined by way of legal
                                                                                  proceedings or which the Court may deem fair
                                                                                  and equitable in order to make good loss of
Ð formally take note that Mr LemeÂe reserves the right to                         earnings,
     bring an action for compensation pursuant to
     Article 215 of the Treaty,
                                                                             Ð pay interest at the legal rate taking currency
                                                                                  fluctuations into account in respect of each of the
Ð order the Commission to pay the costs.                                          above heads of claim,
 ---pagebreak--- 10. 1. 98             EN                Official Journal of the European Communities                                    C 7/23
(b) order the Court of Auditors to pay the costs,                  Action brought on 29 October 1997 by Germain Thinus
      including those incurred in the prelitigation                  against the Commission of the European Communities
      procedure.                                                                         (Case T-283/97)
                                                                                           (98/C 7/65)
Pleas in law and main arguments adduced in support:
                                                                                  (Language of the case: French)
The applicant, a limited liability company governed by             An action against the Commission of the European
Italian law, which collaborated with the European                  Communities was brought before the Court of First
institutions in the context of the MED programmes,                 Instance of the European Communities on 29 October
objects to the criticisms made of it by the Court of               1997 by Germain Thinus, residing at Hellange
Auditors in its Special Report 1/96 on the MED                     (Luxembourg), represented by Jean-NoeÈl Louis, Thierry
Programmes (1). The report was brought about as a result           Demaseure, Ariane Tornel and FrancËoise Parmentier, of
of it having become apparent that there were serious              the Brussels Bar, with an address for service in
irregularities and mismanagement', according to the Court          Luxembourg at the offices of Fiduciaire Myson SARL, 30,
itself. Basically, the Court's criticism is focused on the         rue de Cessange.
alleged lack of budgetary resources necessary for what the
Court considers to be a delegation of powers to bodies
outside the Community administration. Other factual and            The applicant claims that the Court should:
legal points are made on the basis of that criticism. In
particular, the Court emphasizes the confusion of
                                                                   Ð annul the decision not to promote him to grade B 3 in
interests' which had arisen in the MED's management
                                                                       the context of the 1997 promotion procedure,
system, expressly citing the applicant company as one of
the parties favoured, substantially wrongly, by the system.
                                                                   Ð order the defendant to pay the costs.
The applicant claims first of all that the rights of the           Pleas in law and main arguments adduced in support:
defence, a fundamental principle of Community law, have
been infringed inasmuch as the findings and the report of
the facts contained in the report were discussed and made          The applicant contests the appointing authority's refusal
public without any prior notification to those concerned           to promote him in grade in the context of the 1997
and without the necessary explanations or even                     promotion procedure. He states in that regard that he had
information relevant to a better understanding of the facts        been entered on the list of officials proposed by his
and conduct being duly requested or allowed to be                  directorate for promotion to grade B 3 in 1996. He was
properly argued. Admittedly, Article 206 (1) of the Treaty         rejected for promotion solely on account of his having
of Rome only mentions the institutions when prescribing            been transferred within DG V. The applicant further states
that the Court's reports should be accompanied by the              that he is the only person possessing a staff report
replies of those under investigation. Nonetheless, that            showing him to have performed better than certain
expression cannot be interpreted restrictively as if the right     officials who have been promoted.
to a hearing and of the defence were a privilege of the
Community institutions stricto sensu.
                                                                   In support of his claims, he advances the following pleas
                                                                   in law:
The applicant maintains that the actual points made by
the Court of Auditors are unfounded. With regard, in               Ð infringement of Article 45 of the Staff Regulations,
particular, to the alleged confusion of interests' and the            inasmuch as, if a careful and impartial examination of
allegedly privileged position of Ismeri Europa, the                    the comparative merits of the officials eligible for
applicants consider that there is no conflict of interest              promotion had been carried out in accordance with
where the principal may make decisions over the agent's                the principle of equal treatment, the contested decision
head or authorizes the signing of contracts and determines             would not have been adopted. Consequently, that
the contents, terms and conditions thereof. Thus, in the               decision was adopted in breach of the promotion
present case decision-making remained at all times in the              procedure and is vitiated by a manifest error of
hands of the Commission. According to the applicant, the               assessment committed at the time when the merits of
institutional and functional structure of the MED                      the candidates were being considered,
programmes was intended on the whole to be purely a
work tool of the Commission, which was undeniably in               Ð failure to fulfil the obligation to provide a statement
charge.                                                                of reasons, inasmuch as, throughout the pre-litigation
                                                                       procedure, the applicant was not informed of the
(1) OJ C 240, 19. 8. 1996, p. 1.                                       reasons which had led to the adoption of the contested
                                                                       decision.