CELEX: C1998/340/46
Language: en
Date: 1998-11-07 00:00:00
Title: Action brought on 23 July 1998 by José Ma Olivares Ramos, Angel Viñas Martín, Paloma Díez Pardo, Carlos Gil Renaux, José Luis Roselló López, Rosario Doménech Cobo, Miguel Lobato González, Eduardo Peña Abizanda, Manuel de Lucas Casas, Eduardo Sorribes Manzana, Ricardo Puente Sala, José Ma Plaza Sánchez, José Ramón Borrell Nivera, Francisco Fernández Ruiz, Rafael García Palencia, Antonio Espino Morcillo, Bonifacio Marín Pérez, Teresa de la Mora, Pablo Amor Echeverri, Luis Montoya Morón, Amador Rodríguez Prieto, Marco Marcos Rodríguez, Emilio López Menchero, Leopoldo Fabra Utray, Gonzalo Molina Igartua, Gonzalo Giménez Andrés, Pedro Tarno Fernández, Manuel Rodríguez Alonso, Ana María Cobos Aguirre, Fernando Truyols Zaforteza, Isabel de Eguía Antolín, Victor Pou Serradell, Lucía Ramón Amat, Joaquín Ferrán Pérez-Portabella, Jesús Suárez Avila, Pablo Jiménez Fernández, Rosa Quevedo Díez, Angeles Santos Asenjo, Francisco de Vicente, Carlos Arroyos, Antonio Lopez Peña, Valeriano Díaz García, Alfonso González Finat, Antonio Fernández Avilés, Miguel Abellán López, Angel González Leiro, Fernando Aragón Morales, Rafael Valls i Pursals, Jesús Garijo, Alexandre Checchi Lang, Rafael Cepas Palanca, Eduardo de la Peña Vega, Antonio Alonso Madero, Jaime Díez-Canseco, Enrique Juaristi Martínez and Pablo Benavides against the Commission of the European Communities (Case T-115/98)

7.11.98              EN                  Official Journal of the European Communities                                C 340/23
Antonio Oliva EspanÄol, Miguel Alay Marcos, Geraldine               twelve years of negotiation, no agreement has yet been
O'Shea, Ana Luisa Muller, Alfonso Novoa Diz, Ernesto                reached on the content of the said Royal Decree.
PeÂrez Carbonell, Alfredo Escribano Martínez, Soledad
Blanco Mangudo, Enrique Rojas de Montis, Joan Antoni                The applicants also submit that the defendant has
Salmurri Trintxet, Federica Burel Louberry, Elena Frutos            gone too far in withdrawing the technical assistance
Zamarrón, Rafael Aguirre Unceta, Manuel Parejo                      accorded, knowing that they are engaged in proceedings
Pagador, Pablo Pardo Ortiz, Santiago Vazquez Souto,                 before the Spanish courts. Despite the appointing
Concepción Sanmartín Quintela, Saturnino DuraÂn Vidal,              authority's assertion in its decision that the withdrawal
Luis Guembe Casi and Alfonso Ruiz de AzuÂa CastanÄo,                of technical assistance does not imply discontinuance
residing in Brussels and Luxembourg, represented by                 of the proceedings brought, in practice it does entail
Antonio Creus and BegonÄa Uriarte Valiente, of the                  discontinuance as the applicants are deprived of the
Barcelona and Madrid Bar, with an address for service in            technical assistance of their institution.
Brussels at 78 Avenue d'Auderghem.
                                                                    Finally, the applicants plead breach of the duty to state
                                                                    reasons in this case.
The applicants claim that the Court should:
Ð annul the Commission Decision of 10 November
     1997, refusing to provide the applicants with financial
     and technical assistance in their action concerning the
     transfer of pension rights acquired under the Spanish          Action brought on 23 July 1998 by JoseÂ Ma Olivares
     pension scheme, and the Decision of 19 June 1998               Ramos, Angel VinÄas Martín, Paloma Díez Pardo, Carlos
     rejecting the complaint made by the applicants;                Gil Renaux, JoseÂ Luis Roselló López, Rosario DomeÂnech
                                                                    Cobo, Miguel Lobato GonzaÂlez, Eduardo PenÄa Abizanda,
                                                                    Manuel de Lucas Casas, Eduardo Sorribes Manzana,
Ð order the Commission to pay the costs of these                    Ricardo Puente Sala, JoseÂ Ma Plaza SaÂnchez, JoseÂ Ramón
     proceedings.                                                   Borrell Nivera, Francisco FernaÂndez Ruiz, Rafael García
                                                                    Palencia, Antonio Espino Morcillo, Bonifacio Marín
Pleas in law and main arguments adduced in support:                 PeÂrez, Teresa de la Mora, Pablo Amor Echeverri, Luis
                                                                    Montoya Morón, Amador Rodríguez Prieto, Marco
                                                                    Marcos Rodríguez, Emilio López Menchero, Leopoldo
The applicants, who are Commission officials, take issue
                                                                    Fabra Utray, Gonzalo Molina Igartua, Gonzalo GimeÂnez
with the refusal of the appointing authority to provide
                                                                    AndreÂs, Pedro Tarno FernaÂndez, Manuel Rodríguez
them with financial and technical assistance in the
                                                                    Alonso, Ana María Cobos Aguirre, Fernando Truyols
proceedings brought before the national courts regarding
                                                                    Zaforteza, Isabel de Eguía Antolín, Victor Pou Serradell,
the absence under Spanish law of any means of
                                                                    Lucía Ramón Amat, Joaquín FerraÂn PeÂrez-Portabella,
transferring pension rights acquired under the Spanish
                                                                    JesuÂs SuaÂrez Avila, Pablo JimeÂnez FernaÂndez, Rosa
pension scheme to the Community scheme. In the
                                                                    Quevedo Díez, Angeles Santos Asenjo, Francisco de
abovementioned decision of 10 November 1997, the
                                                                    Vicente, Carlos Arroyos, Antonio Lopez PenÄa, Valeriano
Commission justified its refusal by reference to the
                                                                    Díaz García, Alfonso GonzaÂlez Finat, Antonio FernaÂndez
advanced stage reached in the negotiations with the
                                                                    AvileÂs, Miguel AbellaÂn López, Angel GonzaÂlez Leiro,
Spanish State regarding the adoption of a Royal Decree to
                                                                    Fernando Aragón Morales, Rafael Valls i Pursals, JesuÂs
fill the legal vacuum, and to the fact that the Kingdom of
                                                                    Garijo, Alexandre Checchi Lang, Rafael Cepas Palanca,
Spain had already been explicitly condemned by the Court
                                                                    Eduardo de la PenÄa Vega, Antonio Alonso Madero, Jaime
of Justice over the same matter.
                                                                    Díez-Canseco, Enrique Juaristi Martínez and Pablo
                                                                    Benavides against the Commission of the European
This action is based on the breach of the principle of                                       Communities
equal treatment, in that the applicants suffered                                          (Case T-115/98)
discrimination in comparison with other Spanish officials
who, in an identical case a few months previously,                                          (98/C 340/46)
received financial assistance from the institution, and in
                                                                                   (Language of the case: Spanish)
comparison with other officials who, in similar cases, were
also assisted by their institution.                                 An action against the Commission of the European
                                                                    Communities was brought before the Court of First
The applicants, for their part, submit that in this case the        Instance of the European Communities on 23 July 1998
Commission has confused technical assistance' with the             by JoseÂ Ma Olivares Ramos, Angel VinÄas Martín, Paloma
pursuit of negotiations with the Spanish State. However,            Díez Pardo, Carlos Gil Renaux, JoseÂ Luis Roselló López,
in their opinion, the negotiation with the national                 Rosario DomeÂnech Cobo, Miguel Lobato GonzaÂlez,
authorities of a legal provision which will allow pension           Eduardo PenÄa Abizanda, Manuel de Lucas Casas,
rights to be transferred cannot be considered to be                 Eduardo Sorribes Manzana, Ricardo Puente Sala, Jose Ma
technical assistance' within the meaning of Article 24 of          Plaza SaÂnchez, JoseÂ Ramón Borrell Nivera, Francisco
the Staff Regulations since such negotiations fall within           FernaÂndez Ruiz, Rafael García Palencia, Antonio Espino
the obligations incumbent upon the Commission under                 Morcillo, Bonifacio Marín PeÂrez, Teresa de la Mora,
Article 155 of the Treaty and, even if their pursuit could          Pablo Amor Echeverri, Luis Montoya Morón, Amador
be considered to be technical assistance', quod non, it            Rodríguez Prieto, Marco Marcos Rodríguez, Emilio López
could not be considered genuine or effective, since, after          Menchero, Leopoldo Fabra Utray, Gonzalo Molina
 ---pagebreak--- C 340/24             EN                   Official Journal of the European Communities                                    7.11.98
Igartua, Gonzalo GimeÂnez AndreÂs, Pedro Tarno                       Pleas in law and main arguments adduced in support:
FernaÂndez, Manuel Rodríquez Alonso, Ana María Cobos
Aguirre, Fernando Truyols Zaforteza, Isabel de Eguía
Antolín, Victor Pou Serradell, Lucía Ramón Amat,
Joaquín FerraÂn PeÂrez-Portabella, JesuÂs SuaÂrez Avila, Pablo       The applicant company, which was awarded a contract
JimeÂnez FernaÂndez, Rosa Quevedo Díez, Angeles Santos               pursuant to the invitation to tender for the provision of a
Asenjo, Francisco de Vicente, Carlos Arroyos, Antonio                maritime public service between Spanish mainland ports
Lopez PenÄa, Valeriano Díaz García, Alfonso GonzaÂlez                and the ports of the Balearic and Canary Islands, Ceuta
Finat, Antonio FernaÂndez AvileÂs, Miguel AbellaÂn López,            and Melilla, takes issue with the Commission's decision to
Angel GonzaÂlez Leiro, Fernando Aragón Morales, Rafael               initiate the procedure provided for by Article 93(2) of the
Valls i Pursals, JesuÂs Garijo, Alexandre Checchi Lang,              EC Treaty, in so far as it claims that the compensation
Rafael Cepas Palanca, Eduardo de la PenÄa Vega, Antonio              received from the State for provision of the services put
Alonso Madero, Jaime Díez-Canseco, Enrique Juaristi                  out to tender might constitute State aid within the
Martínez and Pablo Benavides, residing in Brussels and               meaning of Article 92 of that Treaty.
Luxembourg, represented by Antonio Creus and BegonÄa
Uriarte Valiente, of the Barcelona and Madrid Bar, with
an address for service in Brussels at 78 Avenue
d'Auderghem.                                                         The applicant claims, first, that the defendant has
                                                                     misinterpreted the Community definition of State aid. In
The applicants claim that the Court should:                          its opinion, in the present case, the required effect on
Ð annul the Commission Decisions of 13 and                           trade between Member States is absent, given that, under
    19 November 1997, withdrawing from the applicants                Article 6 of Council Regulation (EEC) No 3577/92 of
    its financial and technical assistance in their action           7 December 1992 applying the principle of freedom to
    concerning the transfer of pension rights acquired               provide services to maritime transport within Member
    under the Spanish pension scheme, and the Decision of            States (1), island cabotage is a sector which, in Spain's
    the appointing authority of 19 June 1998 rejecting the           case, will not be opened up to competition until 1 January
    complaint made by the applicants;                                1999. The applicant therefore questions how a State can
                                                                     be in breach of a regulation which does not apply to it.
Ð order the Commission to pay the costs of these
    proceedings.
Pleas in law and main arguments adduced in support:                  Second, the applicant claims that the Commission has
The pleas in law and main arguments are the same as                  misinterpreted the Community guidelines on State aid to
those relied on in Case T-114/95 Rodríguez PeÂrez and                maritime transport (2), in classifying the contract in
Others v. Commission.                                                question as State aid on the basis of its allegedly excessive
                                                                     duration and the failure to publicise adequately the
                                                                     invitation to tender. The applicant takes the view that the
                                                                     guidelines do not even envisage a strict obligation to put
                                                                     out an invitation to tender for a public service contract in
Action brought on 23 July 1998 by CompanÄía                          the field of maritime transport and that it therefore falls
TrasmediterraÂnea SA against the Commission of the                   exclusively to the State to choose the method of awarding
                   European Communities                              the contract to a company. In its view the publicity given
                       (Case T-116/98)                               to the contract in question must be considered adequate,
                                                                     in that it was arranged according to generally applicable
                        (98/C 340/47)                                rules under Spanish legislation conforming to Community
               (Language of the case: Spanish)                       principles established by the Community directives on
                                                                     public procurement. For the rest, the applicant considers
An action against the Commission of the European                     that the Spanish authorities have limited the duration of
Communities was brought before the Court of First                    the contract to five years Ð a period given purely as
Instance of the European Communities on 23 July 1998                 normal target in the guidelines Ð since it will not be
by CompanÄía TrasmediterraÂnea SA, a company having its              subject to Regulation (EEC) No 3577/92 in its first year,
registered office in Madrid, represented by Antonio Creus            so that its six year term is made up in practice of one year
and BegonÄa Uriarte Valiente, of the Barcelona and Madrid            followed by five.
Bar, with an address for service in Brussels at 78 Avenue
d'Auderghem.
The applicant claims that the Court should:                          A further ground for annulment cited is breach of
Ð annul the Commission Decision of 18 February 1998                  Article 90(2) of the Treaty in that the alleged State aid
    to initiate the procedure for review of State aid under          must be considered to be compensation for provision of a
    Article 93(2), published in Official Journal of the              public service by the applicant in its capacity as the
    European Communities C 147 of 13 May 1998 in the                 company responsible for running a service in the general
    form of a Communication to the Member States and                 economic interest, namely maritime passenger transport to
    interested parties;                                              the Spanish mainland from other Spanish ports in
                                                                     compliance with standards of regularity, continuity,
Ð order the Commission to pay all the costs incurred by              capacity and quality established by the Spanish
    CompanÄía TrasmediterraÂnea SA in these proceedings.             administration.