CELEX: C1999/188/67
Language: en
Date: 1999-07-03 00:00:00
Title: Case T-102/99: Action brought on 26 April 1999 by 'L' against the Commission of the European Communities

3.7.1999              EN                     Official Journal of the European Communities                                      C 188/29
Pleas in law and main arguments                                         — infringement of Article 86 of the EC Treaty
                                                                            In the relationship between the satellite broadcaster and
                                                                            the cable operator, the one payment reasonably to be
The applicant, a public interest broadcaster, having its head-              expected is by the cable operator to the broadcaster as
quarters in France, whose shareholders are all the French-                  financial compensation for the authorisation. When the
speaking public service broadcasters of France, Belgium,                    opposite situation is found to exist, as in the case of the
Switzerland and Canada, challenges the decision, contained in               tariffs charged by Deutsche Telekom, this can only be due
the Commission’s letter of 15 February 1999, rejecting a                    to the abuse by the cable operator of the dominant position
complaint concerning Deutsche Telekom’s pricing policy in                   he occupies.
that, with regard to its cable television network, Deutsche
Telekom applies a system of dual levies, requiring payment              — infringement of the general principles of sound adminis-
from broadcasters such as the applicant as well as from the                 tration, of Article 86 and 155 of the EC Treaty and of
final consumers (the cable-connected households).                           Article 3(1) of Council Regulation No 17/62
                                                                            In rejecting the applicant’s complaint, the Commission has
                                                                            merely followed the precedent which it created for itself in
The applicant submits that the Commission’s letter of 15 Feb-               its Interim Report of 22 October 1993 in Case IV/34.463
ruary 1999 is to be regarded as containing a final decision                 -VPRT/Deutsche Telekom, in which the Commission
rejecting the complaint                                                     undertook a task that was not its own and acted outside
                                                                            the scope of its obligations under Article 155 and under
                                                                            Regulation No 17/62. The Commission has thus, without
— because it is exclusively based upon a definition of cable                there being any necessity or justification by virtue of the
    distribution as comprising two different services, one                  VPRT case, and without consulting third parties, implicitly,
    rendered to the satellite broadcaster and the other to the              but already definitively, granted its authorisation to Deuts-
    cable-connected household, which leads automatically to                 che Telekom to levy the contested tariff against satellite
    the conclusion that a commercial provider of these two                  broadcasters.
    services may request separate remuneration from their
    respective beneficiaries;
— because the Commission’s definition of cable distribution
    is not limited to Deutsche Telekom but covers all cable
    operators wherever they may be established in the Com-
    munity;
                                                                        Action brought on 26 April 1999 by ‘L’ against the
                                                                                 Commission of the European Communities
— because the Commission had already arrived at its defi-
    nition of cable distribution as comprising two separate                                     (Case T-102/99)
    services and at the principle of the tariff against satellite
    broadcasters in a so-called Interim Report of 22nd October
    1993 in Case No IV/34.463 VPRT/Deutsche Telekom.                                            (1999/C 188/67)
                                                                                           (Language of the case: French)
The applicant’s pleas are:
                                                                        An action was brought on 26 April 1999 before the Court of
— infringement of Articles 60 and 86 of the EC Treaty                   First Instance of the European Communities by ‘L’, represented
                                                                        by Jean-Noël Louis, Greta-Françoise Parmentier and Véronique
                                                                        Peere, of the Brussels Bar, with an address for service in
    The Commission perpetrates a confusion between the                  Luxembourg at the office of Fiduciaire Myson SARL, 30 Rue
    economic advantage that the authorised use by one                   de Cessange.
    undertaking of the product of another undertaking may
    generate for the latter and the notion of a ‘service’. In the
    case of cable distribution no service is being offered by the       The applicant claims that the Court should:
    cable operator to the broadcaster. On the contrary, the
    cable operator himself chooses, from among the pro-                 — annul the decisions rejecting the applicant’s requests of
    grammes already present on the radio and satellite waves,               25 February 1998 for recognition of his status as a
    those signals with which he wishes to compose his cable                 ‘registered partner’ and of 11 May 1998 for the extension
    offerings to the cable-connected households, if and when                to himself and his partner of all the rights, privileges and
    he obtains the corresponding broadcasters’ authorisations               benefits conferred on married officials and their spouses,
    to have their signals so retransmitted via cable. The sole
    service offered and supplied against remuneration is the
    cable offering to the cable-connected household.                    — order the defendant to pay the costs.
 ---pagebreak--- C 188/30               EN                       Official Journal of the European Communities                                      3.7.1999
Pleas in law and main arguments                                            Pleas in law and main arguments
The applicant claims that the Commission is under a duty to                The applicant contests, as he does in Cases T-7/98 (1) and
recognise his personal status under the partnership contract               T-208/98, (2) the defendant’s decision to accept his resignation
lawfully entered into by him in the Netherlands. To the extent             and to bring to an end the employment relationship.
that, under the law of the Netherlands, the institution of
‘registered partnership’ gives rise, for him and his partner, to
rights and obligations which are broadly similar to those                  In support of his application, the applicant claims:
arising under a marriage contract, he submits that his rights
under the Staff Regulations and those of his partner should be             — his resignation is null and void on grounds of mental
determined so as to accord with those conferred on his married                 incapacity. In his view, the resignation was tendered when
colleagues under the Community rules.                                          he was in a state of depression, brought on by, among
                                                                               other factors, the psychological pressures he was under;
In the applicant’s submission, the Commission’s refusal to
recognise his status as a registered partner:                              — that, when an employee who tenders his resignation offers
                                                                               to continue working also during the period of notice, the
— infringes the principle enshrined in Article 4 of the EC                     employment relationship continues to produce its full legal
     Treaty that the institutions are to exercise the powers                   and economic effects until the end of such period.
     conferred on them;
— infringes the principle of the uniform nature of the                     On the latter point, the applicant explains that he was ill from
     personal status of Community nationals;                               28 September 1998 to 6 December 1998, from 8 January
                                                                           1999 to 7 February 1999 and since 15 February 1999, and
— infringes the principles of equal treatment and freedom of               that the period of notice ran from 7 December 1998 (when he
     movement for workers;                                                 returned to work after the first period of sick leave), and that,
                                                                           of the three months to which he was entitled, he had worked
— infringes the right to respect for private life and thus                 for only 38 days, including part of ordinary annual leave.
     Article 8 of the European Convention for the Protection of            Therefore, the applicant was entitled to work for a further
     Human Rights and Fundamental Freedoms; and                            63 days. Accordingly, the letter of 25 February 1999 and the
                                                                           subsequent conduct of the EIB could only be described as
— infringes Articles 27, 62, 71, 72 et seq. and 77 et seq. of              unfair dismissal.
     the Staff Regulations.
                                                                           (1) De Nicola v EIB (OJ 1998 C 94, p. 30).
                                                                           (2) De Nicola v EIB (OJ 1999 C 71, p. 31).
Action brought on 2 May 1999 by Carlo De Nicola against
                   European Investment Bank
                         (Case T-109/99)
                         (1999/C 188/68)                                           Removal from the register of Case T-46/96 (1)
                                                                                                    (1999/C 188/69)
                    (Language of the case: Italian)
An action against the European Investment Bank was brought                                    (Language of the case: English)
before the Court of First Instance of the European Communities
on 2 May 1999 by Carlo De Nicola, represented by Luigi Isola
of the Rome Bar, with an address for service in Luxembourg at              By order of 8 February 1999 the President of the Fifth
the address of Cesare Berloni, 59 Route de Longwy.                         Chamber, Extended composition, of the Court of First Instance
                                                                           of the European Communities has ordered the removal from
The applicant claims that the Court should:                                the register of Case T-46/96 Whirlpool Sweden AB and
                                                                           Whirlpool SMC Microwave Products Development Ltd v
— annul the letter of 25 February 1999 whereby the EIB                     Council of the European Union.
     dismissed the applicant, together with all connected,
     preceding and subsequent acts;
— order the defendant EIB to pay the costs.                                (1) OJ No C 180 of 22.6.1996.