CELEX: C1998/340/49
Language: en
Date: 1998-11-07 00:00:00
Title: Action brought on 31 August 1998 by Armement Coopératif Artisanal Vendéen (ACAV) and Others against Council of the European Union (Case T-138/98)

7.11.98               EN                 Official Journal of the European Communities                                     C 340/25
Finally the applicant claims that its right to a fair hearing       On 19 December 1997 the Commission sent a letter
has been disregarded, given that, at no time during the             pursuant to Article 6 of Commission Regulation No 99/
pre-litigation procedure did the Commission respect its             63/EEC in which it stated that it had concluded that there
fundamental right to be heard.                                      were no grounds for granting the application in so far as
                                                                    Article 86 of the EC Treaty was concerned. In its letter of
                                                                    2 February 1998 the applicant submitted its observations
(1) OJ L 364 of 12.12.1992, p. 7.
(2) OJ C 205 of 5.7.1997, p. 5.                                     to this Article 6 letter' by reiterating its objections to the
                                                                    intention of the Commission to reject its complaint. It
                                                                    asked the Commission to reject the complaint by formal
                                                                    decision within a reasonable time and in any event before
                                                                    15 March 1998.
                                                                    On 2 June 1998 the applicant formally invited the
Action brought on 7 August 1998 by UPS Europe NV/SA                 Commission to make a final decision with regard to its
   against the Commission of the European Communities               complaint under Article 86 of the EC Treaty and
                       (Case T-127/98)                              announced that it would initiate an action for failure to
                                                                    act under Article 175 of the EC Treaty if the Commission
                        (98/C 340/48)                               did not inform the applicant of its decision within two
                                                                    months from the date of that letter. As the Commission
                                                                    has not delivered the requested final decision, the present
               (Language of the case: English)                      application has been submitted to the Court.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 7 August 1998
by UPS Europe SA/NV, represented by Tom R.
Ottervanger and Dirk Arts, with an address for service in           Action brought on 31 August 1998 by Armement
Luxembourg at the offices of Loeff Claeys Verbeke, 5 rue            CoopeÂratif Artisanal VendeÂen (ACAV) and Others against
Charles Martel.                                                                    Council of the European Union
                                                                                           (Case T-138/98)
The applicant claims that the Court should:                                                  (98/C 340/49)
Ð declare in accordance with Article 175           of the EC                       (Language of the case: French)
     Treaty that the Commission has failed to      act by not
     having delivered a decision on the            applicant's      An action against the Council of the European Union was
     complaint lodged with the Commission          on 7 July        brought before the Court of First Instance of the European
     1994;                                                          Communities on 31 August 1998 by Armement
                                                                    CoopeÂratif Artisanal VendeÂen (ACAV) and Others,
                                                                    established in Ile d'Yeu (France), represented by Lise
Ð order the Commission to pay the costs incurred by the             Funck-Bretano and SteÂphanie Ponsot, of the Paris Bar,
     applicant in the present proceedings; and                      with an Address for service in Luxembourg at the
                                                                    Chambers of Jacques Neuer, 9 Avenue Guillaume.
Ð take such further action as the Court may deem
     appropriate.                                                   The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                 Ð annul Council Regulation (EC) No 1239/98;
                                                                    Ð order the Council to pay all the costs.
On 7 July 1994, the applicant, part of the United Parcel
Service' (UPS) group of companies, which is active
worldwide in the business of parcel delivery, lodged a              Pleas in law and main arguments adduced in support:
complaint with the Commission asking it to initiate
proceedings against Deutsche Bundespostdienst (now                  On 8 June 1998 the Council adopted the contested
Deutsche Post AG). In its complaint, the applicant, apart           regulation prohibiting, with effect from 1 January 2002,
from alleging unlawful State aid by the Member State                the use of drift-nets for the capture of certain species of
Germany, identified conduct of Deutsche Post AG which,              fish, including white tuna, by vessels flying the flag of a
in its opinion, infringes Article 86 of the EC Treaty. The          Member State, in particular in the North-East Atlantic.
applicant is of the opinion that the Deutsche Post AG is
engaged both in predatory pricing practices and in using
cross-subsidies to extend a dominant position from the              The applicants, all fishermen from the Ile d'Yeu, who fish
letter market to the related parcel market.                         for those species, in particular using that type of net,
 ---pagebreak--- C 340/26              EN                 Official Journal of the European Communities                                   7.11.98
claim, first, that the Council failed to consult the                for service in Luxembourg at Fiduciaire Myson SARL, 30
European Parliament for a second time on the                        rue de Cessange.
modifications made by the Council to the Commission's
proposal for a regulation dated 8 April 1994 and that the           The applicant claims that the Court should:
European Community has no jurisdiction to legislate in
the North-East Atlantic.                                            Ð annul the decision of 29 October 1997 of the Brussels
                                                                        office responsible for settling claims refusing prior
Second, the contested regulation is contrary to the aims of             authorisation for reimbursement of subsistence
the common fisheries policy and the regulations                         expenses in connection with treatment at the Quiberon
implementing it.                                                        thalassotherapy centre;
                                                                    Ð order the defendant to pay the costs.
Third, the contested regulation should be annulled in so
far as it infringes the following higher principles of law:
                                                                    Pleas in law and main arguments adduced in support:
Ð the right to freedom to carry on a commercial activity            By the contested decision a request for prior authorisation
    in so far as the prohibition set out in the regulation at       to undergo treatment at a spa from 25 October to
    issue prevents the applicants from carrying on their            3 November 1997 was refused on the ground that the
    activity of fishing for white tuna using drift-nets;            treatment centre chosen did not provide treatment for the
                                                                    medical condition in question.
Ð the principle of proportionality set out in Article 3b of
    the Treaty, in view of the disproportionate and                 The applicant submits that this decision is vitiated by an
    manifestly inappropriate nature of the contested                abuse of rights and breaches the fundamental principle of
    measure in the light of the aim pursued, namely the             freedom to choose a doctor and place of treatment. The
    conservation of fishing resources;                              defendant cannot refuse on the basis of exclusively
                                                                    budgetary considerations to recognise the quality of the
                                                                    treatment given in a medical establishment.
Ð the principle of non-discrimination set out in
    Article 40(3) of the Treaty, in so far as the provisions
    of the new Articles 11, 11a, 11b and 11c of Council             Moreover, the decision is vitiated by a manifest error of
    Regulation (EC) No 894/97 do not apply to fishing in            assessment since the treatment centre chosen is recognised,
    the Baltic Sea, the Belts and the éresund, nor to               both by the competent national authorities and by doctors
    salmon fishing using drift-nets.                                specialising in the field of the particular complaint from
                                                                    which the applicant suffers, as competent to provide the
                                                                    appropriate treatment.
Finally, the applicants submit that the contested regulation
is vitiated by manifest error and is of an arbitrary nature         Finally, the defendant has failed to fulfil the legitimate
in so far as it was not adopted in order to ensure a                expectation the applicant was entitled to have as a result
rational and responsible use of available fishing resources,        of the information provided by the department responsible
but responds to the pressure from certain Member States             and has disregarded the obligation to provide the
and international public opinion to prohibit certain                applicant with a relevant statement of reasons establishing
Member States from fishing for certain species, in the              a cogent link between the findings of its medical officer
present case tuna and sword fish, using drift-nets and by a         and the conclusion it reached.
misuse of powers, in so far as it was adopted with the aim
of putting an end to Community controls on compliance
with the rules.
                                                                    Action brought on 10 September 1998 by SA Image
                                                                    CreÂation against Commission of the European
                                                                                             Communities
Action brought on 7 September 1998 by H' against the                                     (Case T-142/98)
         Commission of the European Communities
                                                                                            (98/C 340/51)
                        (Case T-140/98)
                         (98/C 340/50)                                             (Language of the case: French)
                                                                    An action against the Commission of the European
                (Language of the case: French)
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 10 September
An action against the Commission of the European                    1998 by SA Image CreÂation, established in Brussels,
Communities was brought before the Court of First                   represented by Georges Vandersanden, Eric Gillet and
Instance of the European Communities on 7 September                 Laure Levi, of the Brussels Bar, with an address for service
1998 by H', represented by Jean-NoeÈl Louis and                    in Luxembourg at the premises of Fiduciaire Myson
FrancËoise Parmentier, of the Brussels Bar, with an address         SARL, 30 rue de Cessange.