CELEX: C2000/006/56
Language: en
Date: 2000-01-08 00:00:00
Title: Case T-239/99: Action brought on 18 October 1999 by J.J.L. Alofs, trading as Auto Service Center Alofs, against the Commission of the European Communities

8.1.2000              EN                      Official Journal of the European Communities                                        C 6/31
The Commission further infringed its duty to clarify the facts           Action brought on 15 October 1999 by P.C.P. van Oppen-
in a neutral and unprejudiced manner, by giving preference to            Veger, trading as Service Station formerly operating as
Bundesverband deutscher Banken over other parties concerned              J.P. Veger, against the Commission of the European
and presenting the facts in a biased way. The Decision infringes                                   Communities
the obligation to state reasons under Article 253 EC. A
central part of the Decision, the determination of ‘reasonable
                                                                                                  (Case T-238/99)
remuneration’ at 12 % after tax, is not comprehensible and
the bases of the calculation are not evident. The Commission
also fails to distinguish between the indicative figures for                                       (2000/C 6/55)
return on equity (RoE) and return on investment (RoI) and
confuses rates of return before tax with rates after tax. The
reference to the Crédit Lyonnais decision as a starting-point                               (Language of the Case: Dutch)
for the rate of return used does not satisfy the requirement to
state reasons. Finally, the Commission in the Decision fails
to address essential arguments of the Federal Republic of                An action against the Commission of the European Communi-
Germany.                                                                 ties was brought before the Court of First Instance of the
                                                                         European Communities on 15 October 1999 by P.C.P. van
                                                                         Oppen-Veger, trading as Service Station formerly operating
                                                                         as J.P. Veger, of Maria Hoop (Netherlands), represented by
                                                                         P.J.M. Brouwers, of the Meerssen Bar.
The Commission based the Decision on a fundamentally                     The applicant claims that the Court should:
incorrect approach by applying for the first time the criterion
of an ’average return’ as the minimum expected return to a               (a) annul, at least in part, the Commission’s decision (C(1999)
capital injection from public funds in a profitably operating                2539 final) (1) of 20 July 1999 concerning State aid granted
public undertaking. It thus exceeded its powers to control aid.              by the Netherlands to 633 service stations in the region
Article 295 EC protects the business activity of the public                  bordering Germany;
sector and thus restricts inter alia the Commission’s jurisdiction
with respect to the application of Article 87(1) EC. Business            (b) order the Commission to pay the costs.
activity of the State excludes the presence of ’aid granted
through State resources’ within the meaning of Article 87(1)
EC in the case of profitable undertakings. The Commission,               Pleas in law and main arguments
extending the concept of aid too far, wrongly applies the
criterion of the capital investor acting in market-economy
conditions to capital injections in profitably operating under-          The pleas in law and main arguments are the same as in Case
takings. The public sector as investor is allowed a broad margin         T-210/99.
of discretion for capital injections in profitably operating
undertakings.
                                                                         (1) OJ L 280 of 30.10.1999, p. 87.
The Commission impermissibly requires an average return as
a minimum expected return for capital injections from public
funds. In so doing the Commission disregards the particular
structure and business activity of WestLB and the particular             Action brought on 18 October 1999 by J.J.L. Alofs, trading
objectives and legal form of the Wfa assets. The Wfa assets              as Auto Service Center Alofs, against the Commission of
absorbed are not comparable with capital which may be freely                              the European Communities
invested but are earmarked for public house-building support
and are directed to the public good rather than to making a
profit. By integrating the Wfa into WestLB, considerable                                          (Case T-239/99)
synergy effects have been achieved.
                                                                                                   (2000/C 6/56)
                                                                                            (Language of the Case: Dutch)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 18 October 1999 by J.J.L. Alofs,
                                                                         trading as Auto Service Center Alofs, of Arnhem (Netherlands),
                                                                         represented by S.C. Struycken-Veenhoff, of the Nijmegen Bar.
 ---pagebreak--- C 6/32                EN                     Official Journal of the European Communities                                        8.1.2000
The applicant claims that the Court should:                             Pleas in law and main arguments
(a) annul Articles 2 and 3 of the Commission’s decision
    (C(1999) 2539 final) (1) of 20 July 1999 concerning State           The applicant pleads, first of all, that he was denied his right
    aid granted by the Netherlands to 633 service stations in           to a fair hearing, submitting:
    the region bordering Germany.
                                                                        (a) that the third paragraph of Article 7 of Annex IX to the
Pleas in law and main arguments                                              Staff Regulations has been infringed, in that the authority
                                                                             empowered to conclude contracts (‘the Authority’) failed
                                                                             to meet the time-limit laid down by that provision, without
The pleas in law and main arguments are the same as in Case                  furnishing any explanation to justify that failure;
T-210/99.
                                                                        (b) that the rules of sound administration with regard to
                                                                             personnel management have been infringed, inasmuch as:
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                             — one of the three members called on to exercise jointly,
                                                                                 by delegation, the powers of the Authority had also
                                                                                 acted when the Authority, exercising its powers by
                                                                                 delegation, adopted an initial disciplinary measure
                                                                                 which was subsequently withdrawn, so that his objec-
                                                                                 tivity and impartiality was not beyond doubt;
Action brought on 19 October 1999 by Antonio Pernice                         — the contested decision was adopted without the Auth-
  against the Commission of the European Communities                             ority having studied either the applicant’s comments
                                                                                 on the draft minutes of the hearing held pursuant to
                                                                                 the third paragraph of Article 7 of Annex IX to the
                        (Case T-241/99)                                          Staff Regulations or the pleas and arguments in defence
                                                                                 put forward both before the Disciplinary Board and in
                         (2000/C 6/57)                                           the course of the abovementioned hearing; and
                                                                        (c) that Article 2 of Annex IX to the Staff Regulations and
                  (Language of the Case: French)
                                                                             Article 25 of the Staff Regulations have been infringed, in
                                                                             that the alleged failures by the applicant to comply with
An action against the Commission of the European Communi-                    his obligations under the first paragraph of Article 11 and
ties was brought before the Court of First Instance of the                   the first paragraph of Article 12 of the Staff Regulations
European Communities on 19 October 1999 by Antonio                           were not disclosed to him in due time, a fact which
Pernice, resident in Torre d’Isola, Italy, represented by Jean-              prevented him from putting forward his grounds of
Noël Louis, Greta-Françoise Parmentier and Véronique Peere,                  defence.
of the Brussels Bar, with an address for service in Luxembourg
at the offices of Société de Gestion Fiduciaire, ‘Um Piquet’,
2-4 Rue Beck.
                                                                        The applicant also submits that the contested decision is
                                                                        vitiated by a manifest error of assessment, inasmuch as the
The applicant claims that the Court should:                             truth of the evidence against him was not established or, at the
                                                                        very least, the view taken as to the facts was manifestly
                                                                        exaggerated having regard to the circumstances. Furthermore,
— annul the Commission decision of 22 December 1998                     the Authority offended against the principle of proportionality
    imposing upon him the disciplinary measure of termin-               by imposing a disciplinary measure on him which was out of
    ation without notice of his contract as a temporary                 proportion to the degree of seriousness of his alleged failures to
    member of staff, with effect from 1 January 1999;                   comply with his obligations, failures which, in the unanimous
                                                                        opinion of the members of the Disciplinary Board, justify only
— order the Commission to pay him compensation assessed                 a mild penalty, namely a reprimand.
    on an equitable basis at EUR 250 000 for the material and
    non-pecuniary damage suffered following a series of faults
    on the part of the institution;
— order the Commission to pay the costs.