CELEX: C2000/006/53
Language: en
Date: 2000-01-08 00:00:00
Title: Case T-231/99: Action brought on 12 October 1999 by Colin Joynson against the Commission of the European Communities

8.1.2000              EN                      Official Journal of the European Communities                                     C 6/29
The Commission states, as sole reason for the rate of return it          — annul the decisions appointing two other persons to the
regards as usual in the market on the part of the Wfa assets                 posts of Head of the English Language Division and Legal
which is economically usable for the applicant, that in its                  Adviser;
Crédit Lyonnais decision of 1995 it likewise regarded a return
of 12 % after tax as reasonable. The Crédit Lyonnais decision            — order the Council to pay the costs.
is not applicable to the present case, however, because Crédit
Lyonnais was a case of restructuring.
                                                                         Pleas in law and main arguments
The Commission confuses return on equity from the point of
view of the undertaking with return on investment from the
point of view of the capital investor, and wrongly assumes               The applicant contests the appointing authority’s refusal to
that expectations as to returns are in principle to be understood        accept his applications for two grade LA 3 posts.
as net return.
                                                                         In support of his claims, he pleads infringement of:
The rate of return of 12 % after tax for capital investments
used by the Commission is not tenable. The Commission has
confused pre-tax and after-tax figures.                                  — Articles 29 and 45 of the Staff Regulations;
The transfer of Wfa to Westdeutsche Landesbank Girozentrale              — the promotions procedure;
does not have any special features which could justify an
additional 1.5 % on top of the 12 % after tax.                           — the principles of equal treatment and career progression.
The Commission wrongly assumes that the applicant also has               Lastly, the applicant pleads misuse of powers in the present
to pay a consideration for the part of the Wfa assets which is           case.
not usable for it.
Finally, the Commission wrongly fails to take account of the
synergy effects created by the merger of the two credit
institutions in calculating the amount of the consideration to
be paid.
                                                                         Action brought on 12 October 1999 by Colin Joynson
                                                                           against the Commission of the European Communities
                                                                                                 (Case T-231/99)
Action brought on 13 October 1999 by Hans Mc Auley
         against the Council of the European Union
                                                                                                  (2000/C 6/53)
                        (Case T-230/99)
                                                                                           (Language of the case: English)
                          (2000/C 6/52)
                                                                         An action against the Commission of the European Communi-
                   (Language of the case: French)                        ties was brought before the Court of First Instance of the
                                                                         European Communities on 12 October 1999 by Colin Joyn-
                                                                         son, represented by Beeket Bedford, of the Middle Temple
An action against the Council of the European Union was                  and by Messrs Ferdinand Kelly, Solicitors, 21 Bennetts Hill,
brought before the Court of First Instance of the European               Birmingham, B2 5QP, United Kingdom.
Communities on 13 October 1999 by Hans Mc Auley, residing
at Wezembeek-Oppem (Belgium), represented by Jean-Noël
Louis, Greta-Françoise Parmentier and Véronique Peere, of the            The applicant claims that the Court should:
Brussels Bar, with an address for service in Luxembourg at the
offices of Fiduciaire Myson SARL, 30 Rue de Cessange.                    — annul the decision of the Commission in Case
                                                                             IV/36.081/F3 — Bass dated 16 June 1999;
The applicant claims that the Court should:
                                                                         — declare that the Commission is required under Article 233
— annul the Council’s decisions rejecting his applications for               of the Treaty establishing the European Community to
    the grade LA 3 posts of Head of the English Language                     take the necessary measures to comply with the judgment
    Division and Legal Adviser in that division;                             to be delivered;
 ---pagebreak--- C 6/30                 EN                    Official Journal of the European Communities                                      8.1.2000
— order the Commission to pay the costs of this application.            Action brought on 12 October 1999 by Land Nordrhein-
                                                                        Westfalen against the Commission of the European Com-
                                                                                                    munities
                                                                                                (Case T-233/99)
Pleas in law and main arguments
                                                                                                  (2000/C 6/54)
The applicant states that on 3 February 1998, pursuant to
Article 19(3) of Regulation No 17/62 the Commission gave                                  (Language of the case: German)
notice (1) that it intended to take a favourable position in
respect of certain agreements notified to it by Bass, by granting
retroactive exemption pursuant to Article 81(3) EC. The                 An action against the Commission of the European Communi-
agreements in question were a standard form of lease, the               ties was brought before the Court of First Instance of the
subject of which is a fully fitted-out, on-licensed public house        European Communities on 12 October 1999 by Land Nor-
in England and Wales with a tie for beer, together with certain         drhein-Westfalen, represented by Dr Michael Schütte, of
related agreements, and the standard agreements for Scotland.           Bruckhaus Westrick Heller Löber, Berlin, with an address for
Before taking a final decision on this matter, the Commission           service in Luxembourg at the Chambers of Bonn & Schmitt,
invited all interested parties to submit their observations.            7 Val Ste Croix.
                                                                        The applicant claims that the Court should:
On 31 March 1999, the applicant submitted observations
together with an expert’s report to the Commission. In those            1. Annul Commission Decision C(1999) 2265 fin. of 8 July
observations objection was made to the proposal to grant Bass                1999;
an exemption.
                                                                        2. Order the Commission to pay the costs.
On 16 June 1999, the Commission took a Decision relating to
a proceeding pursuant to Article 81 EC (Case IV/36.081/F3 —             Pleas in law and main arguments
Bass) (the contested decision) (2). In its decision the Com-
mission, overriding the objections made in the said obser-
vations, it granted Bass retroactive exemption in respect               The subject-matter of the application is Commission Decision
the notified agreements with effect from 1 March 1991 to                C(1999) 2265 fin. (‘the Decision’) of 8 July 1999 concerning
31 December 2002.                                                       a measure taken by the Federal Republic of Germany in favour
                                                                        of Westdeutsche Landesbank Girozentrale (‘WestLB’), notified
                                                                        to the Federal Republic of Germany on 4 August 1999 by
                                                                        letter of the Commission SG (99) D/6112 of 4 August 1999.
The applicant seeks relief from the Court of First Instance on
the grounds that in granting exemption to the notified                  The acting Commission had no jurisdiction to make the
agreements the Commission:
                                                                        Decision, since because of its extent and importance it was
                                                                        not current business of the Commission, nor would the
                                                                        non-adoption of the Decision have run counter to the interests
(a) failed properly to evaluate the facts and law which establish       of the Community or of individuals.
    that the notified agreements do not fulfil the conditions
    set out in Article 81(3);
                                                                        The Commission was irregularly composed as a result of the
                                                                        ’suspension’ of acting Commissioner Bangemann.
(b) failed to give adequate reasons for its decision that
    the notified agreements fulfil the conditions set out in
                                                                        The Commission omitted to make available to the applicant
    Article 81(3).                                                      essential documents which were material to the defence, in
                                                                        particular a report by consultants First Consulting, and thereby
                                                                        restricted the applicant’s ability to defend itself.
(1) OJ 1999 C 36, p. 5.
(2) OJ 1999 L 186, p. 1.                                                The facts were stated incompletely and manifestly incorrectly
                                                                        on essential points, such as the structure of WestLB’s business
                                                                        activity and its performance of public duties. WestLB is not a
                                                                        ’restructuring’ case but a profitably operating undertaking. For
                                                                        that reason the Commission wrongly applied to WestLB the
                                                                        criteria of assessment developed for capital injections in
                                                                        undertakings in economic difficulties.