CELEX: C2001/134/60
Language: en
Date: 2001-05-05 00:00:00
Title: Case T-53/01: Action brought on 6 March 2001 by Poste Italiane S.p.A. against Commission of the European Communities

C 134/28               EN                     Official Journal of the European Communities                                       5.5.2001
The pleas in law and main arguments are similar to those relied          The applicant submits that the Commission justifies that
on in Case T-93/00 Alessandrini and Others v Commission (2).             decision by alleging that the Paraguayan authorities have
                                                                         expressed reservations about him but that it fails to mention
                                                                         the factual and legal matters of which the applicant should be
                                                                         aware in order, if necessary, to be able to defend his own
(1) OJ 1998 L 293, p. 32.                                                professional conduct.
(2) OJ 2000 C 176, p. 25.
                                                                         The applicant considers that the decision at issue infringes
                                                                         Article 7 of the Staff Regulations since it is contrary to the
                                                                         interest of the service. In his view, the interest of the service
                                                                         specifically requires him to remain in his current post and
                                                                         continue the complex work which has been assigned to him
                                                                         and of which he has already gained sound experience.
                                                                         The applicant further submits that the decision is vitiated by a
Action brought on 6 March 2001 by Juergen Schaefer                       complete failure to state the grounds and has been adopted
  against the Commission of the European Communities                     without the Commission at any time taking account of the
                                                                         views of the party concerned, contrary to the requirements of
                                                                         case-law.
                          (Case T-52/01)
                        (2001/C 134/59)
                   (Language of the case: Spanish)
                                                                         Action brought on 6 March 2001 by Poste Italiane S.p.A.
                                                                             against Commission of the European Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 March 2001 by Juergen Schaefer,                                         (Case T-53/01)
represented by Juan Ramón Iturriagagoitia, lawyer.
                                                                                                 (2001/C 134/60)
The applicant claims that the Court should:
                                                                                            (Language of the case: Italian)
—     annul the Commission’s decision of 12 February 2001
      relating to the applicant’s transfer back from Montevideo          An action against the Commission of the European Communi-
      (Uruguay) to Brussels;                                             ties was brought before the Court of First Instance of the
                                                                         European Communities on 6 March 2001 by Poste Italiane
                                                                         S.p.A., represented by Gian Michele Roberti, Petrus Mathijsen,
—     annul, if appropriate, the Commission’s note of 30 No-             Alessandra Perrazzelli, Elisabetta Rubini and Andrea Sandulli,
      vember 2000 informing the applicant of the decision to             avvocati.
      transfer him back from Montevideo (Uruguay) to Brussels;
                                                                         The applicant claims that the Court should:
—     order the immediate suspension and, if appropriate, the
      subsequent annulment of any procedure initiated with a             —     annul the contested decision
      view to filling the vacancy arising from the order
      transferring the applicant;                                        —     order the Commission to pay the costs.
—     order, if appropriate, the annulment of the corresponding
      appointment of an official to fill the post;                       Pleas in law and main arguments
                                                                         By this action, Poste Italiane SpA is seeking the annulment of
—     order the Commission to pay the costs.
                                                                         the decision of the Commission of 21 December 2000,
                                                                         adopted on the basis of Article 86(3) of the Treaty, in relation
                                                                         to the provision of certain new postal services with a
Pleas in law and main arguments                                          guaranteed day- or time-certain delivery. That decision declares
                                                                         incompatible with Article 4(4) of the Treaty Legislative Decree
                                                                         No 261/99 of 22 July 1999 implementing Directive 97/67/EC
The applicant, who is based in the European Commission’s                 of the European Parliament and of the Council of 15 December
Delegation in Montevideo (Uruguay), was notified of a decision           1997 on common rules for the development of the internal
dated 12 February 2001 posting him back to Brussels with                 market of Community postal services and the improvement of
effect from 12 March 2001.                                               quality of service.(1);
 ---pagebreak--- 5.5.2001               EN                    Official Journal of the European Communities                                        C 134/29
The Commission objects, in particular, to the inclusion in the          —     the principles and rules have not be observed regarding
area reserved to the incumbent operator of a guaranteed day-                  protection of services of general economic interest and in
or time-certain delivery service for time-sensitive electronic                particular of universal services. The applicant points out,
correspondence.                                                               in that respect, the particularly high costs of the universal
                                                                              postal system in Italy as well as the destabilising effect of
                                                                              the decision in question on the financial equilibrium of
                                                                              the provider of the universal service.
In support of its arguments, the applicant claims that:
                                                                        (1) OJ 1998 L 15, p. 14.
—    in the final decision the Commission altered substantially
     essential elements of the infringement complained of
     originally consisting in particular in: the definition of the
     relevant market and the legal classification and assessment
     of the infringement at issue. In this regard, the applicant
     takes the view that, in the final decision the Commission
     does not further identify the relevant market on the basis         Action brought on 16 March 2001 by The Procter &
     of a number of bundled services which, taken as a                  Gamble Company against the Office for Harmonization
     whole, confer on the service significant added-value by                                 in the Internal Market
     comparison with basic postal services. Rather, on the
     contrary, the Commission merely points to a single
     additional service (the date- and time-certain delivery of                                   (Case T-63/01)
     time-sensitive electronic mail) as a factor capable by itself
     of characterising a discrete relevant market.                                               (2001/C 134/61)
—    the Commission has not allowed either the applicant or                                (Language of the case: French)
     the Italian authorities to make their own points of view
     effectively known. Furthermore, despite a finding by               An action against the Office for Harmonization in the Internal
     the Commission originally that Directive 97/67/EC was              Market was brought before the Court of First Instance on
     essential for the legal assessment of the facts, that directive    16 March 2001 by The Procter & Gamble Company, estab-
     is not even cited in the final decision. In that respect, the      lished in Cincinnati (United States of America), represented by
     applicant affirms that the interpretation of the directive is      Thierry van Innis, lawyer, with an address for service in
     essential in order to decide whether the decree in issue is        Luxembourg.
     compatible. Indeed, if the Commission had assessed
     properly the decree in issue in the light of Directive
     97/67/EC, it would have concluded that the disputed                The applicant claims that the Court should:
     national provisions were fully consistent with the content
     and purpose of the directive itself.                               —     annul the Board of Appeal’s decision of 14 December
                                                                              2001;
                                                                        —     order the Office to pay all the costs.
—    the definition of the relevant market is vague and general
     inasmuch as it merely describes the service involved
     in general terms such as, basically, the time-certainty
     (date/time) of the service and the fact that the deadline          Pleas in law and main arguments
     for each delivery is subject to a contractual relationship
     with the user. The definition of the relevant market is not
                                                                        The action is directed against the decision of the Office’s Third
     even founded in the light of the relevant economic
                                                                        Board of Appeal, dated 14 December 2000 (Case R 74/1998-
     circumstances and practice of the Commission. Moreover,
                                                                        3), rejecting the applicant’s appeal against the decision of
     it has omitted to take into consideration the prices
                                                                        18 March 1998 whereby the examiner refused registration of
     charged to customers.
                                                                        the Community trade mark applied for under number 230680
                                                                        on the absolute ground referred to in Article 7(1)(e)(i) of
                                                                        Regulation No 40/94 on the Community trade mark.
—    there is no abuse of a dominant position, so that the
     Commission is mistaken in its hypothesis that Poste                Attention is drawn in this regard to the fact that, by decision
     Italiane has extended its position in the market with              of 15 March 1998, the same Board of Appeal rejected an
     respect to conventional deliveries into the neighbouring           application for registration in respect of the same mark. That
     but distinct market for day- or time-certain deliveries of         decision was annulled by the judgment delivered by the Court
     time-sensitive items.                                              of First Instance on 16 February 2000 in Case T-122/99