CELEX: C1999/226/65
Language: en
Date: 1999-08-07 00:00:00
Title: Case T-118/99: Action brought on 17 May 1999 by Beatrice Bonaiti Brighina against the Commission of the European Communities

C 226/36              EN                     Official Journal of the European Communities                                     7.8.1999
The applicant claims that the Court should:                             European Communities on 10 May 1999 by the Ilmailulaitos,
                                                                        established in Vantaa, Finland, represented by Tuomas Saraste,
— annul the decision of the Commission of 8 March 1999                  lawyer, and Jouni Alanen, oikeustieteen lisensiaatti, with an
    (SG - 99 D/1697);                                                   address for service at Asianajotoimisto Asianajotalo ANPR Oy,
                                                                        Stenbäckinkatu 26, FIN-00250 Helsinki.
— order the Commission to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         — Annul the Commission’s decision finding that the system
                                                                             of landing charges applied by the Ilmailulaitos infringes
The applicant company contests the decision rejecting both                   Article 86 of the EC Treaty, and
the complaint lodged against Renault France, Renault Nether-
lands and Renault Autocenter concerning the barriers to                 — Order the Commission to pay the Ilmailulaitos’s costs
parallel imports by agents as well as a request for withdrawal               together with any interest for fate payment.
of the exemption by category under Regulation (EC) No
1475/95 for Renault’s distribution contracts.
                                                                        Pleas in law and main arguments
In support of its claims the applicant makes the following
submissions:
                                                                        The Commission in its decision infringed essential procedural
                                                                        requirements contained in Community law, in particular in
— The defendant misapplied the principle of Community
                                                                        Article 19(1) of Regulation No 17 of the Council of 6 February
    interest.
                                                                        1962 and Article 4 of Regulation 99/63, by basing its decision
                                                                        on an infringement which was not in the statement of
— The Commission purportedly did not examine thoroughly                 objections it made to the Ilmailulaitos in the case.
    all the matters of fact and law brought to its attention.
    More specifically, the defendant cannot rely on the mere
    fact that the practices which are claimed to he contrary to         In assessing the Commission’s error, regard must be had to the
    the Treaty ceased in order to decide not to take any further        purpose of the statement of objections of providing an
    action, in the absence of any Community interest, on a              undertaking suspected of infringing the rules on competition
    complaint denouncing such practices.                                with all the information which it needs in order to be able to
                                                                        defend itself effectively before the adoption of the Com-
— The applicant claims that in the present case there has               mission’s final decision in the matter. An effective right of
    been misuse of powers. It states in this respect that the           defence, which is a fundamental principle of Community law,
    institutions are bound to observe competition law without           also requires that the Commission formulate its statement of
    taking into account political exigencies.                           objections clearly and unambiguously.
As for delivery deadlines, which according to the Commission            The Commission also infringed essential procedural require-
are technically justified because of the popularity of the              ments by basing — with respect to airports other than
Renault Scenic, the applicant claims that 45 % of the orders it         Helsinki-Vantaa — the assessment of the trace criterion in its
handles are for models other than the Scenic. In any event, the         decision on different facts from those on which it had based
defendant failed to ascertain whether the deadlines in question         its assessment in its statement of objections. The Ilmailulaitos
are discriminatory. There is a rebuttable presumption that              thus had no adequate opportunity to defend itself in this
there is compartmentalisation of the market by the systematic           respect either.
use of deadline extensions as a deterrent against parallel
imports.
                                                                        Action brought on 17 May 1999 by Beatrice Bonaiti
                                                                        Brighina against the Commission of the European Com-
Action brought on 10 May 1999 by the Ilmailulaitos
                                                                                                    munities
  against the Commission of the European Communities
                        (Case T-116/99)                                                         (Case T-118/99)
                        (1999/C 226/64)                                                         (1999/C 226/65)
                  (Language of the case: Finnish)                                          (Language of the case: Italian)
An action against the Commission of the European Communi-               An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              ties was brought before the Court of First Instance of the
 ---pagebreak--- 7.8.1999                EN                    Official Journal of the European Communities                                      C 226/37
European Communities on 17 May 1999 by Beatrice Bonaiti                  Action brought on 18 May 1999 by P.E. Hoyer against the
Brighina, represented by Mirco Rizzoglio and Franco Colussi                       Commission of the European Communities
of the Milan and Luxembourg Bar, with an address for service
ir Luxembourg at the Chambers of Franco Colussi, 36, Rue de                                       (Case T-119/99)
Wiltz.
                                                                                                  (1999/C 226/66)
The applicant claims that the Court should:
                                                                                            (Language of the case: Dutch)
— Annul the decision not to admit Beatrice Bonaiti Brighina
     to the oral tests in Competition COM/B/18/96.                       An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
— Order the Commission to pay the costs.                                 European Communities on 18 May 1999 by P.E. Hoyer
                                                                         residing in Hoeilaart (Belgium), represented by G. van der Wal,
                                                                         of the Bar of The Hague, having an address for service in
                                                                         Luxembourg at the Chambers of A. May.
Pleas in law and main arguments
                                                                         The applicant claims that the Court should:
                                                                         — declare internal competition COM/LA/2/89 void, or in any
The applicant contests her exclusion from the list of candidates             event annul the decision of the selection board, as notified
admitted to the oral test in Competition COM/B/18/96 for                     to the applicant by letter of 15 February 1999. not to
transfer from Category C to Category B, grades 5 and 4.                      include the applicant on the list of suitable candidates;
According to the Notice of Competition, the 120 candidates
achieving the highest marks in the written test would be
invited to take the oral test, provided that they achieved the           — order the defendant to pay the costs of the proceedings.
pass mark required in the written test.
                                                                         Pleas in law and main arguments
The applicant stases that the representative of the Chairman of
the Selection Board informed her that she had been awarded a             The applicant, who was at the time a temporary Commission
mark of 26 out of 50 but that candidates had to have a                   official (interpreter), was unsuccessful in the above internal
minimum mark of 33 to be included amongst the 120 best                   competition and was dismissed.
candidates. Consequently, although she had been awarded the
pass mark, she was told that her marks were not sufficient for           His action against the decision of the selection board was
her to be admitted to the oral tests.                                    upheld (Case T-43/91). The decision dismissing him was
                                                                         set aside on the ground that it was based on an invalid
                                                                         selection-board decision (Case T-51/91).
The applicant lodged a complaint, seeking annulment of the
decision not to admit her to the oral test, of the list drawn up         The Court of First Instance did not annul the internal
on the basis of the written tests, of Section VI, paragraph (C),         competition as such, but stated in paragraph 65 of its judgment
of the Notice of Competition and of the final list of successful         in Case T-43/91 that Mr Hoyer’s rights would be properly
candidates in the competition.                                           safeguarded ‘if the appointing authority were to seek an
                                                                         equitable solution for him’.
In support of her claims, the applicant pleads:
                                                                         The applicant objected to the re-opening and/or continuation
                                                                         of the internal competition.
— breach of Article 28(d) of the Staff Regulations applicable
     to officials and of Article 5(2) and (5) of Annex III thereto       Contrary to its undertakings, however, the Commission did
     (Competitions) by Section VI, paragraph (C), of Notice of           re-open and continue the internal competition. In protest, the
     Competition COM/B/18/96; and                                        applicant participated in the tests, but was unsuccessful.
— breach and misapplication of Section VI, paragraph (A),                The grounds of his application for a declaration annulling the
     final subparagraph, of the Notice of Internal Competition           internal competition are as follows:
     relating to the said competition.
                                                                         — infringement of the principle of equality and breach of
                                                                             essential procedural requirements;
The applicant also pleads a manifest error of assessment,
failure to state reasons and misuse of powers.                           — breach of Article 233 EC (ex Article 176);
                                                                         — breach of express agreements.