CELEX: C2002/044/44
Language: en
Date: 2002-02-16 00:00:00
Title: Case T-301/01: Action brought on 30 November 2001 by Alitalia — Linee aeree italiane S.p.A. against the Commission of the European Communities

C 44/24                 EN                      Official Journal of the European Communities                                      16.2.2002
Action brought on 7 December 2001 by Carlo De Nicola                       —     implied refusal to initiate disciplinary proceedings, in that
              against European Investment Bank                                   it was only by letter of 13 June 2001 that the President
                                                                                 of the EIB informed the applicant of the misconduct and
                                                                                 infringements alleged against him, dating back to 1998.
                          (Case T-300/01)                                        Such delay moreover is in breach of the employee’s rights
                                                                                 of defence;
                           (2002/C 44/43)                                  —     that the Disciplinary Board was irregularly constituted.
                                                                                 The applicant claims in that respect that Article 40 of the
                                                                                 Staff Regulations is unlawful inasmuch as it does not
                    (Language of the case: Italian)                              provide in any event for the substitution of the Head of
                                                                                 Personnel, despite the existence of a dispute between him
                                                                                 and the applicant, and inasmuch as there is no provision
                                                                                 requiring a quorum of 4 voting members;
An action against the European Investment Bank was brought                 —     infringement of the procedure provided for in Article 40
before the Court of First Instance of the European Communities                   of the Staff Regulations;
on 7 December 2001 by Carlo De Nicola, represented by Luigi
Isola, lawyer.                                                             —     irregularity of the verbal dismissal of 6 September 2001,
                                                                                 inasmuch as such dismissal is not provided for by any
                                                                                 Community or other provision, and it was moreover
                                                                                 intimated by the Director of the Rome office, whereas the
The applicant claims that the Court should:                                      Staff Regulations accords this power only to the President
                                                                                 of the EIB;
—     annul the verbal dismissal of 6 September 2001 notified
      to the applicant by Thomas Beckett, the director of the              —     irregularity of the dismissal of 12 September 2001. The
      Rome office, the subsequent dismissal served on the                        applicant points out in that respect that the misconduct
      applicant by letter received on 12 September 2001,                         leading to the disciplinary measure is certainly not held
      signed by the President of the European Investment                         to be serious since the President, by virtue of Article 39
      Bank (EIB), Philippe Maystadt, together with all other                     of the Staff Regulations, could have immediately sus-
      consequent and related acts, including necessarily certain                 pended the official. Furthermore, the defendant made
      articles of the Staff Regulations and the Code of Conduct,                 hardly any mention of specific times and places nor
      in so far as the latter applies to the applicant;                          adduced evidence of the misconduct but instead sought
                                                                                 to dismiss him for failure to cooperate during the
                                                                                 disciplinary proceedings despite his never having been
—     order the EIB to reinstate the applicant, restore his career               accused of such failure.
      as from February 1999 and pay the remuneration due to
      him in the meantime (together with interest) and pay the
      costs of the proceedings and damages in the terms set out            (1) Judgment of 23 February 2001 ECR-SC 2001 I-A-49, II-185.
      below and to be further expounded in the course of                   (2) OJ 2001 C 227, p. 30.
      proceedings.
Pleas in law and main arguments
                                                                           Action brought on 30 November 2001 by Alitalia —
                                                                           Linee aeree italiane S.p.A. against the Commission of the
The applicant in the present action, who is challenging his                                    European Communities
dismissal by the defendant and the facts surrounding it, is the
same one as in T-7/98, T-208/98 and T-109/99 De Nicola v
EIB (1) and T-120/01 De Nicola v EIB (2).                                                           (Case T-301/01)
                                                                                                     (2002/C 44/44)
In support of his arguments, the applicant claims:
                                                                                              (Language of the case: Italian)
—     that the Code of Conduct does not apply to him,
      inasmuch as it is a unilateral act drawn up and issued
      solely by the employer, not being required by the
      individual contract of employment or by the Staff Regu-              An action against the Commission of the European Communi-
      lations;                                                             ties was brought before the Court of First Instance of the
 ---pagebreak--- 16.2.2002              EN                    Official Journal of the European Communities                                       C 44/25
European Communities on 30 November 2001 by Alitalia —                  —     breach of the principle of sound administration, legal
Linee aeree italiane S.p.A., represented by Mario Siragusa, Gian              certainty and legitimate expectations, as well as of the
Michele Roberti, Giuseppe Scassellati, Francesca Maria Moretti                obligation imposed by Article 4(5) of Council Regulation
and Francesco Sciaudone, lawyers.                                             (EC) No 659/1999 of 22 March 1999 laying down
                                                                              detailed rules for the application of Article 93 EC (3),
                                                                              inasmuch as the aforementioned general principles and
                                                                              provision required the Commission to act within two
The applicant claims that the Court should:                                   months;
—     annul the second decision in its entirety;                        —     breach of the rights of defence of the applicant, given
                                                                              that it was impossible for the applicant to defend itself by
                                                                              participating in the administrative procedure leading to
—     in the alternative, annul Article 1 of the second decision              the adoption of the contested act;
      in so far as it subjects compatibility of the injection of
      capital to compliance with the conditions laid down in
      the first decision;                                               —     breach of the obligation to provide a statement of reasons.
—     order the Commission to pay the costs.
                                                                        (1) OJ 2001 L 271, p. 28.
                                                                        (2) Case T-296/97 Alitalia v Commission [2000] ECR II-3871.
                                                                        (3) OJ 1999 L 83, p. 1.
Pleas in law and main arguments
The present action has been brought against Commission
Decision 2001/723/EC of 18 July 2001 concerning the
recapitalisation of the applicant company (1). The applicant
claims that that decision reproduces the wording of Articles 1,
2 and 3 of Decision 97/789/EC, whereby the defendant
authorised the aid granted by Italy to Alitalia, in the shape of a      Action brought on 10 December 2001 by Gerhard Bir-
contribution of capital totalling ITL 2 750 billion intended to          khoff against Commission of the European Communities
cover the restructuring of the company. The action against the
latter decision was upheld by the Court (2) on the grounds of
failure to state reasons and manifest error of assessment.                                       (Case T-302/01)
                                                                                                  (2002/C 44/45)
In the decision under challenge in the present action, the
Commission notes that Article 233 EC does not require it to
reopen the procedure and once again follow all the stages of
that procedure. In regard to the lack of reasoning, the                                    (Language of the case: Italian)
Commission states specifically that the procedure in question
may be taken up again from the stage at which the flaw in
question occurred. So far as manifest errors of assessment are
concerned, the second decision must be based on the factual
evidence gathered when the first decision was adopted and the           An action against the Commission of the European Communi-
errors identified by the Court relate to assessments of fact the        ties was brought before the Court of First Instance of the
truth of which was not in dispute.                                      European Communities on 10 December 2001 by Gerhard
                                                                        Birkhoff, represented by Vincenzo Salvatore, lawyer
In support of its arguments, the applicant claims:
                                                                        The applicant claims that the Court should:
—     infringement of Article 233 EC;
                                                                        —     annul the decision of the Commission of the European
                                                                              Communities, Directorate General — Admin B, of
—     infringement of Article 88(2) EC inasmuch as the Com-                   26 September 2001, as manifestly unfounded in fact and
      mission could not, in the present case, adopt a new                     in law, together with any preceding, related or subsequent
      decision of content identical to the preceding annulled                 acts, in particular ‘Notification of amendment No 10 to
      decision without initiating once again the procedure                    the demand for payment of 21 February 1992’, issued on
      provided for therein.                                                   4 July 2001.