CELEX: C1996/077/33
Language: en
Date: 1996-03-16 00:00:00
Title: Action brought on 19 December 1995 by SIC - Sociedade Independente de Comunicação, SA against the Commission of the European Communities (Case T-231/95)

No C 77/ 14            EN                 Official Journal of the European Communities                                        16 . 3 . 96
Action brought on 18 December 1995 by Societe Bretagne               therefore to the beneficiary of the aid, it is unfair for the
Angleterre Irlande ( BAI) against the Commission of the              complainant not to be informed of it. The injustice is all
                     European Communities                            the greater because, unknown to the complainant, the
                        ( Case T-230/95 )                            agreement to which it objects was drawn up by the State
                                                                     concerned in conjunction with the Commission, according
                           ( 96/C 77/32 )
                                                                     to its own press release. Consequently, the inquiry into the
                                                                     matter was neither impartial nor diligent.
                 (Language of the case: French)
                                                                     Because it does not have the text of the Commission 's
An action against the Commission of the European                     decision, the applicant finds itself in the following position :
Communities was brought before the Court of First                    either the Commission's decision did not put an end to
Instance of the European Communities on 18 December                  the infringement complained of by the applicant and
 1995 by Societe Bretagne Angleterre Irlande ( BAI ), a              is unlawful, or that decision gives all operators the
company whose registered office is in Roscoff ( France ),            opportunity of entering into agreements with State
represented by Jean-Michel Payre, of the Paris Bar, with an          authorities which make it possible for them to ensure that
address for service in Luxembourg at the Chambers of                 their vessels are profitable. In the first case, the applicant
Aloyse May, 31 Grand-rue.                                            would be unable to exercise its right to take legal action,
                                                                     because it does not know the reasons on which the decision
                                                                     is based . In the second case, it would for the same reason be
The applicant claims that the Court should:                          unable to make use of such an opportunity.
— order the Commission to compensate the loss suffered
     by the applicant because it has not been informed of the
     decision taken by the Commission in Case C-32/93 ( Ex
     NN 40/93 ) or, if it should be so informed during the
     proceedings, because the Commission is late in fulfilling
     its obligation,                                                 Action brought on 19 December 1995 by SIC — Sociedade
                                                                     Independente de Comunica^ao, SA against the Commission
— order the Commission to pay the costs .                                             of the European Communities
                                                                                              Case T-231/95 )
Pleans in law and main arguments:                                                              ( 96/C 77/33 )
The applicant, a company governed by French law which                An action against the Commission of the European
was for many years the sole operator of a shipping line              Communities was brought before the Court of First
between the ports of Plymouth in England and Santander in            Instance of the European Communities on 19 December
Spain, objects to the fact that the Commission has failed,           1995 by SIC — Sociedade Independente de Comunica^ao,
despite a number of requests and formal notices, to inform           SA, whose registered office is at 119 Estrada da Outurela ,
the applicant of the terms of a decision given in response to a      Carnaxide, Linda-a-Velha, represented by Carlos Botelho
complaint lodged under Article 93 ( 2 ) of the EC Treaty.            Moniz and Ana Santos Reis, Advogados, with chambers at
                                                                     63 6° Rua Castilho, Lisbon, with an address for service in
That complaint concerned aids granted by the 'Diputacion             Luxembourg at the chambers of Aloyse May, 31
Foral de Vizcaya' ( Regional Government of Biscay ) and the          Grand-rue .
' Gobierno Vasco' ( Basque Government ) to a company,
Ferries Golfo de Vizcaya SA, 50 % controlled by the United
Kingdom company Peninsular and Oriental European                    The applicant claims that the Court should :
Ferries ( P&O ), which has since March 1993 been operating
a competing line between the ports of Portsmouth and                — find and declare that the defendant has, in breach of
Bilbao . More specifically, those authorities had undertaken             Articles 92 and 93 of the EC Treaty and of general
to purchase travel vouchers from Ferries Golfo de Vizcaya                principles of law, failed in its duty to give a decision on
amounting to the sum of Pta 1 314 190 000 during the line's              the request for a procedure to be commenced under
first three years of operation during which it was forecast to           Article 93 ( 2 ) made to it by the applicant in its complaint
be running at a loss. Those payments were to be made even if             ( No IV/34.811 ) concerning the aid granted by the
the crossings did not take place; the price agreed was                   Portuguese Government to RTP — Radiotelevisao
substantially higher than the shipping company's public                  Portuguesa , SA,
fares .
                                                                    — order the Commission to pay the costs in their
At the beginning of June 1995 the applicant learned from                 entirety.
the newspapers that the Commission had given a decision,
but it still does not know either the content of that decision       Pleas in law and main arguments:
or the date on which it was adopted, even though it has
requested the information a number of times .                       The applicant states that Article 92 ( 1 ) of the EC Treaty lays
                                                                     down a rule concerning the incompatibility of aid with the
First of all, the applicant maintains that once a decision has      common market; Article 92 ( 2 ) and ( 3 ) allows exceptions to
been adopted, its existence made public in a press release           that rule . The Commission has sole competence to decide as
and its content imparted to the State in question, and               to the availability of exceptions, in other words to decide as
 ---pagebreak--- 16 . 3 . 96           I EN               Official Journal of the European Communities                                 No C 77/ 15
to the compatibility of an aid with the functioning of the          Action brought on 15 January 1996 by S against the Court
common market . It is clear from the substantive rules                        of Justice of the European Communities
referred to, and from the fact that exclusive powers are                                     ( Case T-4/96
conferred on the Commission , that the adjectival rules
under Article 93 ( 3 ) make it incumbent on the Member                                         ( 96/C 77/34 )
States to notify the Commission, before approval and
implementation within the Member State concerned, of any                            (Language of the case: French)
plans to grant aid which they intend adopting. In the event
of the Member States not observing the notification                 An action against the Court of Justice of the European
requirement, the prohibition of implementation of the               Communities was brought before the Court of First
measures concerned is fully effective domestically; that rule       Instance of the European Communities on 15 January 1996
can thus be relied on by a competitor before the national           by S, represented by Georges Vandersanden and Laure Levi,
courts if national procedural law provides means for                of the Brussels Bar, with an address for service in
challenging the aid granted, but the national courts must           Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue
confine themselves to ensuring the effectiveness of the             Glesener .
prohibition pending the Commission's final decision. By
virtue of those rules, the Commission is under a duty to give       The applicant claims that the Court should :
a decision as to the compatibility with the common market
of unnotified aid measures which have come to its notice in         — annul the decision of the Court of Justice of the
the mean time, in particular when it has been informed of               European Communities, in its capacity of appointing
their existence by a complaint lodged by a competitor of the            authority, of 11 April 1995 , in so far as it applies an
recipient of the aid.                                                   invalidity rate of 6 % for calculating the sum referred to
                                                                        in Article 73 of the Staff Regulations,
The applicant considers that in this case the Commission            — recognize the applicant's entitlement to the sum
was informed, by means of the complaint submitted, of the               provided for in Article 73 of the Staff Regulations,
adoption and implementation in Portugal of aid measures in              calculated on the basis of a rate of invalidity of 30% ,
favour of RTP, approved by the Government, without
fulfilment of the duty of notification . This means that the        — annul, in so far as necessary, the decision rejecting the
Commission should, within a reasonable period, have                     applicant's complaint, taken on 2 October 1995 and
adopted one of two decisions : either one approving the                 notified on 16 October 1995 ,
measures in question, after giving the Portuguese authorities
an apportunity to submit their observations, in the event of        — order the defendant to pay the costs .
its immediately coming to the view that the measures are
compatible with the common market; or a decision to                 Pleas in law and main arguments:
initiate an investigative procedure under Article 93 ( 2 ) in the
event of its being unable, on the basis of a straightforward        The applicant, a pensioned official of grade LA 6 at the
preliminary analysis, to consider such measures compatible          Court of Justice, challenges the method of calculation of the
with the common market. The Commission took neither                 sum referred to in Article 73 of the Staff Regulations, which
course, still being engaged in its preliminary examination          she claims is based on an incorrect rate of invalidity .
after two-and-a-half years .
                                                                    The contested decision was adopted on the basis of two
                                                                    medical reports from the medical committee, according to
The fact that the Commission did not express a view, at the         which the applicant has a permanent partial invalidity of
preliminary stage, undermines the applicant's rights, the           30 % , 20 % of which arose in the course of the performance
latter being prevented from securing judicial protection to         by the applicant of her duties in the defendant
safeguard its legitimate interests. Accordingly, the                institution .
applicant, on 1 1 August 1995, called on the Commission to
act: it sent a letter requiring the Commission, under and for       The applicant argues firstly that there has been a breach of
the purposes of Article 175 of the EC Treaty, to give a             Article 73 of the Staff Regulations and of Articles 3 ( 2 ) and
decision on the complaint submitted, in particular the              12 ( 2 ) of the Rules and the scale of rates of invalidity
request that a procedure be commenced under                         annexed thereto . She considers that when a disease or the
Article 93 ( 2 ). The Commission replied, albeit outside the        aggravation of a disease arises in the course of or in
period of two months laid down in Article 175 , by letter of        connection with the performance of duties with the
16 October 1995 ; in that letter the Commission did not take        Communities, the official is entitled to benefits and it is not
any position, merely stating that it had received a study and       necessary for the work in the institutions to have been the
would seek information from the Portuguese authorities in           predominant cause of the disease .
order to analyse the situation . Consequently, the
Commission is in breach of its obligation to adopt a measure        The applicant also submits that once the causal link had
defining its position on the complaint submitted to it by the       been established and the rate of permanent invalidity fixed
applicant.                                                          at 30 % , the defendant was in breach of Article 73 ( 2 ) ( c ) of
                                                                    the Staff Regulations and Articles 3 ( 2 ) and 12 ( 2 ) of the
                                                                    Rules and of the scale of rates of invalidity annexed thereto
                                                                    by taking a rate of 6 % into consideratioin for calculation of
                                                                    the sum in question .