CELEX: C2004/035/23
Language: en
Date: 2004-02-07 00:00:00
Title: Case T-392/03: Action brought on 4 December 2003 by Regione Siciliana against the Commission of the European Communities

C 35/14               EN                         Official Journal of the European Union                                          7.2.2004
Action brought on 27 November 2003 by Deutsche                           The Commission failed, in its decision, to take account of the
Post AG and DHL International N.V. /S.A. against the                     fact that, despite the cancellation of a provision created to
         Commission of the European Communities                          cover its obligations to pay pensions to persons employed as
                                                                         postal workers from 1972 to 1992, La Poste continues to
                                                                         be permitted to retain, without consideration, the business
                         (Case T-388/03)                                 premises initially transferred to it by way of compensation for
                                                                         creation of the provision.
                          (2004/C 35/22)
                                                                         The Commission was wrong to take the view that the
                  (Language of the case: German)                         possibility, laid down in statute, of obtaining State guarantees
                                                                         for certain loans does not constitute aid granted to La Poste
                                                                         provided that it has made no use of that facility.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               The contested decision is unlawful because, when offsetting
European Communities on 27 November 2003 by Deutsche                     the financial advantages granted to La Poste against the net
Post AG, Bonn (Germany), and DHL International N.V./S.A.,                additional costs of the universal postal service, the Commission
Diegem (Belgium), represented by J. Sedemund and T. Lübbig,              failed to take account of the abovementioned measures.
lawyers.
                                                                         The Commission offset the net additional costs of performing
The applicants claim that the Court should:                              services in the public interest against the corresponding
                                                                         compensation as a whole, without examining whether the
                                                                         compensation was actually paid in respect of the period in
—     annul the decision of the European Commission of                   which the net additional costs in question were incurred.
      23 July 2003 (Aid No N 763/02) and
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Action brought on 4 December 2003 by Regione Siciliana
                                                                           against the Commission of the European Communities
The action is directed against the decision of the European
Commission, adopted in a procedure pursuant to Article 88(3)
EC, not to raise any objection to the compatibility of a capital                                 (Case T-392/03)
injection of EUR 297,5 million into the Belgian postal
company La Poste, to the exemption of La Poste from
corporation tax and from property tax on real-estate trans-                                       (2004/C 35/23)
actions effected by it in connection with the public supply
mandate, to La Poste’s ability to obtain State guarantees for                               (Language of the case: Italian)
loans taken out by it, to the cancellation of provision made for
pensions, to the overcompensation from which La Poste
benefited in respect of its public service tasks and to two
capital injections amounting to EUR 62 million in total which
were not notified to the Commission.                                     An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities by Regione Siciliana, represented by
The applicants submit that the contested decision is incompat-           Giacomo Aiello, Avvocato dello Stato.
ible with Article 87(1) EC and Article 253 EC.
                                                                         The applicant claims that the Court should:
The Commission did not treat the exemption of La Poste from
corporation tax as State aid only because, from 1992 to 2002,            —     annul Order BUDG/C5/ME/jlsD(2003)358046 of 6 Octo-
La Poste made net losses and thus would not have been                          ber 2003 of the Commission of the European Communi-
required to pay corporation tax even if no tax exemption had                   ties on the detailed rules for the recovery of the contri-
been granted. The Commission thus failed to take account of                    bution of the European Regional Development Fund
the fact that, as an abstract rule, the tax exemption automati-                (ERDF), ERDF ‘Gibbesi Dam’ cancelled by Commission
cally grants La Poste a financial advantage over other undertak-               Decision C(2002)4905 of 11 December 2002, and in
ings at least where it makes taxable profits, thereby enabling                 consequence order the Commission of the European
the declaration requirement to be avoided.                                     Communities to pay the costs.
 ---pagebreak--- 7.2.2004                EN                            Official Journal of the European Union                                           C 35/15
Pleas in law and main arguments                                               Action brought on 12 December 2003 by Jean-Pierre
                                                                              Castets against the Commission of the European Com-
                                                                                                           munities
Regione Siciliana has brought an action before the Court of
First Instance of the European Communities challenging Order                                           (Case T-398/03)
BUDG/C5/ME/jlsD(2003)358046 of 6 October 2003 of the
Commission of the European Communities on the detailed
rules for the recovery of the contribution of the European                                              (2004/C 35/24)
Regional Development Fund (ERDF), ERDF ‘Gibbesi Dam’
cancelled by Commission Decision C(2002)4905 of
11 December 2002 and of the acts resulting from it (1).                                          (Language of the case: French)
In support of its application Regione Siciliana alleges:
                                                                              An action against the Commission of the European Communi-
1.    infringement and/or misapplication of Articles 73 and                   ties was brought before the Court of First Instance of the
      186 of Council Regulation No 1605/2002 of 25 June                       European Communities on 12 December 2003 by Jean-Pierre
      2002 (2) and of Article 83 of the implementing Com-                     Castets, residing in Saint Victor Des Oules (France), represented
      mission Regulation No 2342/2002 of 23 December                          by Grégory Crétin, lawyer.
      2002 (3), in that the contested order provided for the
      recovery of the Community contribution which had been
      revoked, and refused to allow Regione Siciliana to offset               The applicant claims that the Court should:
      the contribution against claims that it itself has on the
      Commission, and therefore applied default interest to it;
                                                                              —     Annul the decision of 4 September 2003 by which the
                                                                                    appointing authority rejected complaint R/311/03 made
2.    infringement and misapplication of Article 24 of Council                      by the applicant on 16 June 2003;
      Regulation No 4253/88 as amended by Council Regu-
      lation (EEC) No 2083/93 of 20 July 1993 (4) in that the
      contested order did not find that the principle of offsetting           —     Order the Office for administration and payment of
      was immediately applicable to the circumstances of this                       individual entitlements to recalculate the amount of the
      case;                                                                         invalidity pension to be paid to the applicant on the basis
                                                                                    of the old-age pension which would have been paid to
                                                                                    him at the age of 65 if he had remained in service until
3.    misuse of powers because of inconsistency between                             that age, and to apply that calculation retroactively from
      various acts and infringement of the principle of the                         1 May 2003;
      protection of legitimate expectations, in that the Com-
      mission has contradicted its own earlier decisions which
                                                                              —     Order the Commission to pay the costs.
      were also adopted in respect of Regione Siciliana, in
      relation to the admissibility of the action seeking offset-
      ting through discharge of the pecuniary obligations in
      this case.
                                                                              Pleas in law and main arguments
(1) Decision already contested in Case T-60/03 Regione Siciliana v
    Commission (OJ 2003 C 101, p. 50).
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June
                                                                              The applicant was retired and granted an invalidity pension
    2002 on the Financial Regulation applicable to the general budget         with effect from 1 May 2003.
    of the European Communities (OJ 2002 L 248, p. 1).
(3) Commission Regulation (EC, Euratom) No 2342/2002 of
    23 December 2002 laying down detailed rules for the implemen-             According to the applicant, when the Commission calculated
    tation of Council Regulation (EC, Euratom) No 1605/2002 on the
    Financial Regulation applicable to the general budget of the
                                                                              his invalidity pension, it manifestly misinterpreted Article 78
    European Communities (OJ 2002 L 357, p. 1).                               of the Staff Regulations in taking as the rate of the invalidity
(4) Council Regulation (EEC) No 2082/93 of 20 July 1993 amending              pension the rate of the old-age pension to which the applicant
    Regulation (EEC) No 4253/88 laying down provisions for                    would have been entitled at the age of 65 if he had remained
    implementing Regulation (EEC) No 2052/88 as regards coordi-               in service until that age and, as his basic salary, the salary he
    nation of the activities of the different Structural Funds between        would receive if he were still in service. The applicant claims
    themselves and with the operations of the European Investment             that the pension should, rather, be calculated on the basis of
    Bank and the other existing financial instruments (OJ 1993 L 193,         the old-age pension which would have been paid to him if he
    p. 20).                                                                   had remained in service until the age of 65.