CELEX: C1995/137/68
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 9 March 1995 by Interhotel, Sociedade Internacional de Hotéis, SARL, against the Commission of the European Communities (Case T-81/95)

3 . 6 . 95             EN                 Official Journal of the European Communities                                    No C 137/29
Action brought on 6 March 1995 by Syndicat Fran^ais de               certain activities to which objection was taken in the
L'Express International ( SFEI ), DHL International,                 complaint.
SERCIVE CRIE and MAY COURIER against the
          Commission of the European Communities                     The applicants maintain that, by rejecting their complaint,
                        ( Case T-77/95 )                             the Commission infringed Articles 86 and 190 of the EC
                          ( 95/C 137/67 )
                                                                     Treaty and also the principles of proper administration and
                                                                     non-discrimination. They also consider that the contested
                                                                     decision is vitiated by misuse of powers and manifest errors
                                                                     of assessment of the Community interest.
                 (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 6 March 1995 by
Syndicat Fran^ais de PExpress International ( SFEI ), DHL
International, SERVICE CRIE and MAY COURIER,                         Action brought on 9 March 1995 by Interhotel, Sociedade
established in France, represented by Eric Morgan de                 Internacional de Hoteis, SARL, against the Commission of
Rivery, of the Paris Bar, and Jacques Derenne, of the                                   the European Communities
Brussels and Paris Bars, with an address for service in                                        ( Case T-81/95 )
Luxembourg at the Chambers of Alex Schmitt, 62 Avenue                                            ( 95/C 137/68 )
Guillaume .
                                                                                    (Language of the case: Portuguese)
The applicants claim that the Court should :
                                                                     An action against the Commission of the European
— annul the Commission's decision SG(94)D/19144 of                   Communities was brought before the Court of First
     30 December 1994 , and                                          Instance of the European Communities on 9 March 1995 by
                                                                     Interhotel, Sociedade Internacional de Hoteis, SARL, whose
                                                                     registered office is in Lisbon, Rua Castilho, No 50, 5th floor,
— order the Commission to pay the costs .                            represented by Dr Jose Miguel Alarcao Judice, of the Lisbon
                                                                     Bar, with an address for service in Luxembourg at the office
                                                                     of Dr Victor Gillen, Avocat, 13 Rue Aldringen.
Pleas in law and main arguments adduced in support:
                                                                     The applicant claims that the Court should :
The applicants point out that they lodged with the
Commission a complaint against the French Post Office and            — annul the Commission's decision of 28 December
the French State with a view to obtaining a finding of                     1994,
infringement of Articles 86 and 90 of the EC Treaty in the
context of the market in international rapid delivery
services . In their complaint the applicants maintained that as      — order the Commission to pay the costs .
a result of State measures the French Post Office was
supplying the Societe Frangaise de Messagerie                        Pleas in law and main arguments adduced in support:
Internationale ( SFMI ), a company dependent on the Post
Office, with logistical and commercial assistance which had          The action challenging the legality of the Commission's
enabled it immediately to penetrate, from the market in              decision is well founded, first, on the ground of breach of the
basic postal services in which the Post Office holds a               general principles of law, such as stability, legal certainty
statutory monopoly, the related market in international              and the protection of legitimate expectations and, secondly,
rapid delivery services and, in some three years, to acquire         on the ground of the inadequate statement of the reasons on
the first place in that market at the expense of private             which it is based, entailing a breach of the applicant's
undertakings which were there before it.                             acquired rights .
The applicants state that the Commission decided to reject           ( a ) The applicant points out in the first place that, in the
their complaint on the grounds, first, that the taking into                 factual and legal context which must be considered for
account of the Community interest justified not initiating an               the purposes of a correct appraisal of its action and of
investigation under Article 86 into the facts alleged and,                  the responsibilities demanded of it, its conduct of the
secondly, that the decision not to oppose a concentration                   operation and the Commission's own assessment show
between certain postal authorities and the undertaking TNT                  that the irreproachable way in which the rules in force
had shown that the operation envisaged, in the postal sector                and , as soon as they were known, the applicable
and with at least one of the participants against whom the                  instructions were at all times complied with is not open
complaint was directed , would have made it possible to                     to question . This is true of all the alterations alleged by
mitigate or indeed eliminate some of the anti-competitive                   the Commission and of all the expenditure it regards as
conduct for which the French Post Office and the SFMI                       ineligible, which means that that expenditure will have
could have been responsible, precisely in the context of                    to be regarded as properly effected and accepted . A
 ---pagebreak--- No C 137/30             EN                   Official Journal of the European Communities                                    3 . 6 . 95
      different construction entails a breach of the principles         The applicant claims that the Court should :
      of legal certainty and of the protection of legitimate
      expectations.
                                                                        — annul the decision of the President of the European
                                                                            Parliament of 19 December 1994 retiring her, pursuant
      The applicant also maintains that there can be no                     to Article 50 of the Staff Regulations, from her post as
      doubts whatever concerning the manner in which,                       Director General of Translation and General Services,
      despite all the legal , economic and social circumstances
      existing at the time and despite its inexperience and the
      almost total lack of instructions and guidelines , the            — annul any previous implied decision retiring the
      training operation fulfilled all the objectives laid down.            applicant pursuant to Article 50 of the Staff
      The applicant finds it unacceptable that in these                     Regulations,
      circumstances it can be penalized for failure, as alleged
      in the contested decision, to deal with certain
                                                                        — annul the implied and/or express decision of the
      procedural matters, which, incidentally, it was not                   appointing authority rejecting the applicant's complaint
      required to do .                                                      submitted on 21 February 1995 ,
      The applicant considers , finally, that in view of the
      period of time that has already elapsed — the contested           — reinstate the applicant in her post or in a similar post
      decision was taken about eight years after the                        corresponding to her grade and duties, with payment of
      procedure was initiated — and above all in view of the                any arrears of salary due on the actual date of the
      manifest impossibility of reconstituting all the facts,               retirement until reinstatement, together with interest at
      testimony and documents relating to the action carried                the rate of 8 % per annum,
      out, and given that the period of time that elapsed
      represented considerable damage to the applicant, the             — order the defendant to pay the costs .
      contested decision should be annulled for breach of the
      principles of legal certainty and of the protection of
      legitimate expectations and for the Commission 's                 Pleas in law and main arguments adduced in support:
      failure to comply with the principle of proper
      administration and the duty of care .
                                                                        The applicant contests the decision of the President of the
( b ) The applicant further considers that the contested                European Parliament retiring her, pursuant to Article 50 of
      decision should be annulled , in so far as it relates to the      the Staff Regulations, from her post as Director General of
      'expenditure not approved in the initial request', on the         Translation and General Services .
      grounds of infringement of acquired rights and of the
      inadequacy of the reasons given for the Commission's              She claims first that Articles 7, 25 , 27 and 60 of the Staff
      decision which approved the initial request submitted .           Regulations, and also the general principles of equality and
      The contested decision should also be annulled, in so             distributive justice, have been infringed, in that the
      far as it relates to the expenditure indicated under the          contested decision was not adopted in the interests of the
      headings ' functioning and management of courses —                service, that concept having been replaced by the alleged
      teaching staff', 'preparation of courses ', 'equipment            expediency involved in having to take account of the
      and non-durable goods ' and ' normal depreciation', for           enlargement of the European Union, and in that it is not
      failure to give any reasons for the reductions decided            apparent from the contested measure that the facts in
      upon .                                                            question were seriously and scrupulously examined .
                                                                        Secondly, the applicant submits that the contested decision
                                                                        does not meet the requirements with regard to stating
                                                                        reasons, laid down in the second paragraph of Article 25 of
                                                                        the Staff Regulations , and that it is also vitiated by a
Action bought on 13 March 1995 by Carmen Gomez de                       manifest error of assessment and by misuse of powers .
     Enterria y Sanchez against the European Parliament
                          ( Case T-82/95 )                              She also considers that the defendant institution has
                            ( 95/C 137/69 )                             infringed Article 50 of the Staff Regulations in that it
                                                                        decided not to assign her to another post corresponding to
                 (Language of the case: French)                         her grade and duties . Such a consequence cannot be the
                                                                        automatic result of that provision. Furthermore, with
                                                                        respect to her career, her merits and her age, the
An action against the European Parliament was brought                   administration has failed in its duty to have regard for her
before the Court of First Instance of the European
                                                                        interests and has failed to respect the expectation she
Communities on 13 March 1995 by Carmen Gomez de                         entertained that the institution would ensure that her career
Enterrfa y Sanchez, residing in Luxembourg ( Grand Duchy                would follow a normal course .
of Luxembourg ), represented by Eric Boigelot, of the
Brussels Bar, with an address for service in Luxembourg at
the    Chambers       of Louis      Schiltz,  2   Rue    du   Fort
Rheinsheim .