CELEX: C1999/246/73
Language: en
Date: 1999-08-28 00:00:00
Title: Case T-131/99: Action brought on 27 May 1999 by Michael Hamilton Shaw, Timothy John Falla and WPP Luxembourg Appeal Group Limited against the Commission of the European Communities

C 246/36               EN                     Official Journal of the European Communities                                      28.8.1999
In support of his claims, the applicant alleges:                         (a) L a c k o f c o m p e t e n c e
— breach of Articles 24 and 29 of the Staff Regulations;
                                                                             The Commission has no competence to grant an individual
— breach of Article 233 of the EC Treaty (ex Article 176)                    exemption pursuant to Article 81(3) E C with retroactive
     through failure to comply with the above judgments;                     effect unless the conditions set out therein are fulfilled ‘at
                                                                             all times’. It is apparent from the contested decision that
— misuse of powers by the defendant and breach of the                        the countervailing benefits necessary to satisfy Article 81
     principle of proportionality.                                           (3) were not present from 1990/91 to 1993/94, namely
                                                                             four years out of the seven-year review period adopted by
                                                                             the Commission
Finally, the applicant alleges breach of the requirement that
reasons must be stated for acts.
                                                                             Any analysis of an agreement within the meaning of
(1) Case T-140/94 Gutiérrez de Quijano v European Parliament                 Article 81 (1) with a view to the grant of a retroactive
    (1996) ECR-SC II-689).                                                   individual exemption under Article 81 (3) can only be
(2) Case C-252/96 European Parliament v Gutiérrez de Quijano                 undertaken by the Commission by reference to the date of
    (1998) ECR I-7421).                                                      the agreement or to the date to which retroactivity is
                                                                             sought. The Commission has no power to grant an
                                                                             exemption in respect of an agreement which now qualifies
                                                                             for exemption under Article 81(3) but did not do so at any
                                                                             time prior to the Commission’s assessment.
                                                                         (b) M a n i f e s t e r r o r i n m a k i n g t h e c o n t e s t e d
Action brought on 27 May 1999 by Michael Hamilton                            decision
Shaw, Timothy John Falla and WPP Luxembourg Appeal
Group Limited against the Commission of the European
                          Communities                                        In concluding that Whitbread should be granted an
                                                                             individual exemption under Article 81(3), the Commission
                                                                             made a manifest error:
                        (Case T-131/99)
                        (1999/C 246/73)                                      — in relying upon evidence produced by Whitbread
                                                                                  which was partisan, inaccurate and unrepresentative;
                   (Language of the case: English)
                                                                             — in failing to accept and/or admit contrary evidence of
                                                                                  Whitbread tenants as to the true facts;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 May 1999 by Michael Hamilton                      — in failing, after having been put on notice as to the
Shaw, Timothy John Falla and WPP Luxembourg Appeal                                inaccuracy and unrepresentative nature of the evidence
Group Limited, represented by Julian Henry Maitland-Walker,                       upon with it sought to rely, to carry out a further
with an address for service in Luxembourg at the Chambers of
                                                                                  investigation to determine the true facts;
Loeff Claeys Verbeke, 58 rue Charles Martel.
The applicant claims that the Court should:                                  — in concluding that the evidence upon which the
                                                                                  contested decision was based was sufficient to justify
1. annul the whole or in part the Commission Decision of 24                       the conclusion that an individual exemption should be
     February 1999 granting to Whitbread Plc an individual                        granted.
     exemption under Article 85(3) of the EC Treaty (now
     Article 81(3) EC) in respect of certain individual lease
     agreements in standard form operated by Whitbread since             (c) I n a d e q u a t e
     1 January 1990 (OJ L 1999 88 p.16);
2. order the Commission to pay the costs of the action,                      The contested decision fails to provide adequate reasoning
     including those of the applicants.                                      for the grant of an individual exemption having regard to
                                                                             the fact that the contested decision itself shows that there
                                                                             were no countervailing benefits present in four out of the
Pleas in law and main arguments                                              seven years covered by the Commission’s analysis.
The applicants submit that the contested decision granting an
individual exemption under Article 85(3) of the EC Treaty
(now Article 81(3) EC), should be declared void in whole or in
part for the reasons set out below: