CELEX: C2002/044/45
Language: en
Date: 2002-02-16 00:00:00
Title: Case T-302/01: Action brought on 10 December 2001 by Gerhard Birkhoff against Commission of the European Communities

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.
 ---pagebreak--- C 44/26                EN                     Official Journal of the European Communities                                     16.2.2002
—     order the Commission to compensate the applicant for               The applicant claims that the Court should:
      the ensuing damage, in particular those arising from the
      loss of Sickness Insurance cover and other non-material
      damage;                                                            —     annul the decision of the Commission not to take action
                                                                               on complaint No 1999/5330;
—     order the Commission to pay the costs.
                                                                         —     order the European Commission to take the following
                                                                               measures:
Pleas in law and main arguments
                                                                               1.    require the Government of the Kingdom of Spain
                                                                                     not to implement the decision to alter the route
                                                                                     followed by Subsection II (Ebro river crossing) of the
The applicant, a former official of the defendant institution, at                    Zaragoza-Lleida section of the Madrid-Barcelona-
present retired, contests the withdrawal, with retrospective                         French border high speed line, known as Solución
effect, of family allowance in respect of a dependent daughter.                      Sur Alternativa B (Southern Solution, Option B),
The contested measure is based on ‘evidence that the income                          declared environmentally viable by the Spanish
from gainful employment of [his] daughter exceeds 40 % of                            Council of Ministers on 25 February 1999 and
the basic salary of an official in Grade D 4/1’.                                     approved by way of resolution by the Secretary of
                                                                                     State for Infrastructure and Transport of 17 March
                                                                                     1999;
In support of his arguments, the applicant claims:
                                                                               2.    further require the Kingdom of Spain to ensure that
—     unlawfulness of the act on the ground of misuse of
                                                                                     those works be carried out using the only properly
      powers (lack and inadequacy of reasons, erroneous
                                                                                     approved route adopted by resolution of the Sec-
      assumptions and distortion of the facts)
                                                                                     retary of State for Town and Country Planning of
                                                                                     24 February 1995 as Alternativa Norte (Northern
—     infringement of Article 2(5) of Annex VII to the Staff                         Option); and
      Regulations
                                                                               3.    any other measure which in consequence of the
—     breach of the principle of non-discrimination                                  preceding orders may be deemed appropriate,
                                                                                     including a warning from the Commission to the
—     breach of the principle of legitimate expectations and                         Spanish authorities that enforcement measures
      failure to protect acquired rights.                                            could be adopted in the absence of adequate com-
                                                                                     pliance, including infringement proceedings and/or
                                                                                     the withdrawal of European funding for the project.
                                                                         Pleas in law and main arguments
Action brought on 30 November 2001 by Ayuntamiento
de Osera de Ebro against Commission of the European
                           Communities                                   The applicant states that it is one of the municipal authorities
                                                                         affected by the route of the High Speed Madrid-Zaragoza-
                         (Case T-303/01)                                 French Border railway line, for which the Spanish Government
                                                                         obtained funding from the Community cohesion fund (Project
                                                                         No 95/11/65/007) (1). Initially, the Spanish administrative
                          (2002/C 44/46)                                 authorities approved the route for Subsection II of the
                                                                         Zaragoza-Lleida section, which opted, from the two possible
                                                                         choices at the Source of the Ebro, for the ‘Northern Option’,
                   (Language of the case: Spanish)                       which did not affect the protected area of the Soto de Aguilar,
                                                                         a riverside wilderness of great ecological and wildlife value
                                                                         within the municipality limits of the applicant. Subsequently,
                                                                         despite the report to the contrary drawn up by the competent
An action against the Commission of the European Communi-                environmental authorities, the Spanish Government decided
ties was brought before the Court of First Instance of the               to alter the route initially planned, opting for Solución Sur
European Communities on 30 November 2001 by Ayuntami-                    Alternativa B (Southern Solution, Option B), which not only
ento de Osera de Ebro (Zaragoza), Osera de Ebro (Zaragoza,               is the less environmentally friendly but is also the more
Spain), represented by Javier Ariño Barcelona, lawyer.                  expensive.