CELEX: C2002/323/63
Language: en
Date: 2002-12-21 00:00:00
Title: Case T-320/02: Action brought on 22 October 2002 by Monika Esch-Leonhardt, Tillmann Frommhold and Emmanuel Larue against the European Central Bank

C 323/38                EN                        Official Journal of the European Communities                                     21.12.2002
In support of their application, the applicants allege infringe-             on 22 October 2002 by Monika Esch-Leonhardt, Frankfurt
ment of Article 3(2) of Regulation No 3286/94 (EC). According                (Germany), Tillmann Frommhold, Karben (Germany), and
to the applicants, the Commission misassessed the definition                 Emmanuel Larue, Frankfurt (Germany), represented by B. Kart-
of ‘obstacle to trade’.                                                      haus, C. Roth and T. Raab-Rhein (lawyers), with an address for
                                                                             service in Luxembourg.
The applicants claim, next, that that misassessment necessarily
implies infringement of Article 2(4) of Regulation No 3286/
94 (EC) as regards assessment of the adverse trade effects                   The applicants claims that the Court should:
arising from the United States measures.
                                                                             1.    declare the inclusion of the Director of Personnel’s letter
The applicants take the view, moreover, that the Commission                        of 4 December 2001 in the applicants’ personal files to
infringed, in its examination of the adverse trade effects, the                    be of no legal effect;
obligation to have regard to the provisions, principles or
practice which govern the right of action under relevant
international rules, contained in Article 10(5) of Regulation                2.    in the alternative, declare void the defendant’s refusal to
                                                                                   remove the Director of Personnel’s letter of 4 December
No 3286/94 (EC).
                                                                                   2001 from the applicants’ personal files;
The applicants further claim that the Commission, when                       3.    declare void the defendant’s refusal to number the pages
deciding to terminate the procedure, restricted the concept of                     of the personal files in sequence;
interests of the Community to the interests of the complainant
alone, contrary to Article 10 of Regulation No 3286/94 (EC).
                                                                             4.    order the defendant to pay the applicants damages of
                                                                                   EUR 1 by way of compensation for non-pecuniary loss;
The applicants also allege breach of the obligation to provide
a statement of reasons, both as regards the analysis of the
obstacles to trade and the interests of the Community,                       5.    as an alternative to claims 1 to 3, order the defendant to
infringement of Article 2(4) and Article 11(1) of Regulation                       remove the Director of Personnel’s letter of 4 December
No 3286/94 (EC) and a manifest error of assessment of                              2001 from the personal files;
the facts. Finally, the applicants allege infringement by the
Commission of the rights of the defence and breach of the
duty to exercise due care.                                                   6.    order the defendant to pay the costs of the proceedings.
( 1) Council Regulation (EC) No 3286/94 of 22 December 1994
     laying down Community procedures in the field of the common
     commercial policy in order to ensure the exercise of the Com-
     munity’s rights under international trade rules.                        Pleas in law and main arguments
                                                                             The applicants, employees of the European Central Bank,
                                                                             complain that a document sent to them by the defendant
                                                                             warning them to refrain in the future from circulating infor-
                                                                             mation about the union via the defendant’s internal e-mail
                                                                             system was included in their respective personal files.
Action brought on 22 October 2002 by Monika Esch-
Leonhardt, Tillmann Frommhold and Emmanuel Larue
               against the European Central Bank
                                                                             The applicants regard the warning itself, and in particular the
                          (Case T-320/02)                                    storage thereof, as a breach of their right to determine what
                                                                             information is placed on the file and an infringement of their
                                                                             right to carry out activities connected with the union. In
                          (2002/C 323/63)                                    addition, the measure amounts to discrimination on account
                                                                             of their union activities.
                    (Language of the case: German)
                                                                             The applicants also submit that their rights have been infringed
                                                                             in that the pages of their personal files have not been numbered
An action against the European Central Bank was brought                      in sequence, with the result that it is not possible to check
before the Court of First Instance of the European Communities               which documents are placed on, or removed from, those files.
 ---pagebreak--- 21.12.2002               EN                      Official Journal of the European Communities                                       C 323/39
That, like the storage of data giving information about                     Pleas and main arguments
membership of the union, infringes the provisions of Regu-
lation (EC) No 45/2001 ( 1).
                                                                            The applicants benefit from fiscal arrangements and the
( 1) Regulation (EC) No 45/2001 of the European Parliament and of           tonnage charge introduced by the Netherlands in favour of,
     the Council of 18 December 2000 on the protection of individuals
                                                                            inter alia, vessels intended for towing and assistance at sea. In
     with regard to the processing of personal data by the Community
     institutions and bodies and on the free movement of such data
                                                                            the contested decision the Commission considers that these
     (OJ 2001 L 8, p. 1).                                                   matters constitute new State aid for tugboat activities princi-
                                                                            pally carried on in and around the harbours of the Community
                                                                            and on inland waterways within the Community and not
                                                                            principally at sea. The Commission is at the same time seeking
                                                                            recovery by the Netherlands authority of that aid.
                                                                            The applicants submit that the Commission is in breach of the
                                                                            EC Treaty and Regulation No 659/1999 ( 1) by classifying the
                                                                            matters concerned as new State aid. According to the appli-
Action brought on 24 October 2002 by Kotug Inter-                           cants the provision made in regard to those matters constitutes
national BV, Sleepdienst Adriaan Kooren BV and K&K                          existing State aid authorised by the Commission.
International BV against the Commission of the European
                            Communities
                           (Case T-326/02)                                  Thus, there is no question of a change in the existing aid.
                                                                            According to the Commission, the interpretation of the
                                                                            Netherlands law has changed over the years. Under it tugboats
                          (2002/C 323/64)                                   were eligible for aid on the basis of technical criteria relating
                                                                            to the vessels rather than on the basis of the place where the
                                                                            activities are carried on. According to the applicants, that was
                                                                            however clear from the legislation notified by the Netherlands
                     (Language of the case: Dutch)
                                                                            authorities under which a technical and qualitative criterion is
                                                                            applied rather than a geographical one. That interpretation of
                                                                            the provision made in regard to the grant of the aid have
                                                                            accordingly not changed.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 October 2002 by Kotug International BV,
Sleepdienst Adriaan Kooren BV and K&K International BV,                     The applicants further allege that the Commission did not
established in Rotterdam, represented by T.R. Ottervanger,                  follow the correct procedure. According to the applicants, the
with an address for service in Luxembourg.                                  Commission, upon receipt of supplementary information, did
                                                                            not issue a recommendation for the adoption of appropriate
                                                                            measures. Nor did the Commission review the aid under
                                                                            Article 9 of Regulation No 659/1999. Nor, the applicants
The applicants claim that the Court of First Instance should:               submit, are the requirements of that article satisfied since there
                                                                            is no question of incorrect information. Moreover, according
                                                                            to the applicants, the Commission failed to demonstrate that
1.     Primarily, annul Commission Decision C(2002) 2158 of
                                                                            the provision made for the matters concerned is not covered
       19 June 2002 concerning State aid by the Netherlands in
                                                                            by the aid measures approved by it previously.
       favour of the activities of Netherlands tugboats in sea
       harbours and on inland waterways of the Community;
2.     In the alternative, annul Articles 2 and 3 of the Com-
       mission’s contested decision in which the Commission                 Accordingly, the applicants submit that the contested decision
       requires the Netherlands Government to adopt all necess-             infringes Article 87(3) of the EC Treaty. According to the
       ary measures in order to recover aid from the recipients             applicants the Commission is acting incorrectly in declaring
       — with the exception of aid paid before 12 September                 the matters concerned incompatible with the common market.
       1990;                                                                The applicants allege that towing services provided by sea
                                                                            tugboats to sea-going vessels, irrespective of where those
                                                                            activities are carried on, come within the scope of the
3.     Order the Commission to pay the costs.                               Community guidelines on State aid for maritime transport ( 2).