CELEX: C2002/233/62
Language: en
Date: 2002-09-28 00:00:00
Title: Case T-238/02: Action brought on 9 August 2002 by José Barbosa Gonçalves against Commission of the European Communities

28.9.2002              EN                     Official Journal of the European Communities                                       C 233/35
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant in the present case is contesting the decision to          By application of 15 April 2002 the applicant, a manufacturer
transfer him from the Commission’s delegation in Luanda to               of special glass, requested, pursuant to Article 6(1) of Regu-
the Directorate-General for Development in Brussels. That                lation (EC) No 1049/2001 of the European Parliament and of
decision is allegedly connected with illness caused by personal          the Council (1), access to documents relating to various State
conflicts in which he was involved within the said delegation            aid procedures. Two of those procedures concerned the
in Luanda.                                                               applicant itself as a presumed recipient of State aid; the others
                                                                         concerned one of its competitors on the special glass markets,
In support of his claims, the applicant pleads:                          the firm Schott Glass. The applicant’s action is directed at the
                                                                         Commission’s decision of 28 May 2002 in so far as it refuses
—     failure to provide a statement of reasons, inasmuch as the         to grant access to the documents in the aid procedures
      mere reference to the interests of the service cannot be           concerning the applicant itself and in procedures concerning
      regarded as satisfactory in that respect;                          Schott Glass and are already completed.
—     infringement of the principle of proper administration,            The applicant submits that the Commission’s refusal manifestly
      alternatively failure to discharge the duty to have regard         infringes Article 2(1) and (4) of Regulation (EC) No 1049/
      for the welfare and interests of officials;                        2001. The applicant had a right to access which was not
                                                                         restricted by Article 4 of the regulation. In particular, the
—     non-compliance with the principle that the interested
                                                                         Commission had not proved the existence of any specific
      party should be heard in advance of the adoption of a
                                                                         impairment of the protected interests set out in Article 4(2) of
      decision, inasmuch as the contested decision was taken
                                                                         the regulation.
      without any prior notice to the person concerned;
—     the decision at issue is indicative in several respects of a       Furthermore, the applicant submits that the Commission
      misuse of powers, since it is apparent from the overall            wrongly relied on the exception relating to the protection of
      circumstances of the case that the objective actually              the purpose of inspections, investigations and audits. Referring
      pursued was not of a merely organisational nature but              to Article 4(7) of the regulation, the applicant submits that it
      was to distance the applicant from Angola and from the             has at the very least the right to access to documents in
      functions which he was responsible for performing there.           examination procedures which have already been completed.
                                                                         Moreover, it ought to have been possible for the Commission
                                                                         to grant the applicant access to a document in which business
                                                                         secrets had been obscured and thus to grant partial access in
                                                                         accordance with Article 4(6) of the regulation.
Action brought on 8 August 2002 by Technische Glaswer-                   Finally, the Commission infringed its obligation to state
ke Ilmenau GmbH against the Commission of the Euro-                      reasons in accordance with Article 253 EC, since it had merely
                        pean Communities                                 given a general statement of reasons.
                         (Case T-237/02)
                                                                         (1 ) Regulation (EC) No 1049/2001 of the European Parliament and
                                                                              of the Council of 30 May 2001 regarding public access to
                         (2002/C 233/61)                                      European Parliament, Council and Commission documents (OJ
                                                                              2001 L 145 p. 43).
                   (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 August 2002 by Technische                      Action brought on 9 August 2002 by José Barbosa
Glaswerke Ilmenau GmbH, whose registered office is at                    Gonçalves against Commission of the European Com-
Ilmenau (Germany), represented by G. Schohe and Ch. Arhold,                                           munities
lawyers, acting as agents, with an address for service in
Luxembourg.                                                                                       (Case T-238/02)
The applicant claims that the Court should                                                        (2002/C 233/62)
—     annul the Commission’s decision of 28 May 2002
                                                                                           (Language of the case: Portuguese)
      concerning the applicant’s application for access to
      documents — D(2002) 330168 — except for the part in
      which access is refused to documents directly connected
      with the pending aid procedure concerning Schott;                  An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 9 August 2002 by José Barbosa
 ---pagebreak--- C 233/36               EN                       Official Journal of the European Communities                                      28.9.2002
Gonçalves, residing in Viana do Castelo, represented by João               The applicant claims that the Court should:
Dias Gonçalves, lawyer.
                                                                           —     annul the contested decision;
The applicant claims that the Court should:                                —     in the alternative, declare, under Article 241 of the
                                                                                 Treaty, unlawful and inapplicable Article 22 of Regulation
—     order the Commission of the European Communities to                        No 4253/88 in conjunction with Articles 3 and 4 of
      compensate him at a rate to be set by the Court but at no                  Regulation No 1866/90;
      less than EUR 1 016 200;
                                                                           —     order the Commission to pay the costs.
—     order the Commission to pay all the costs;
—     order the Commission to publish the order against it in
      the European daily and weekly newspapers with the                    Pleas in law and main arguments
      greatest circulation.
                                                                           The present action has been brought against Commission
                                                                           Decision of 31 March 2000, 004484, fixing the final amount
Pleas in law and main arguments                                            in respect of the files ‘Public Bodies’ — P.O. 901010 I1,
                                                                           906022 I1, 906030 I6 and 936030 I6, concerning contri-
                                                                           butions by the European Social Fund. That decision reduced
                                                                           the ESF assistance initially granted to Italy by Decisions of
In support of his claims, the applicant alleges errors in the
                                                                           12 December 1990, C(90) 3017 and of 17 December 1990,
tests in General Competition COM/A/6/01, irregularities in
                                                                           C(90) 2682 and C(90) 2746, adopted pursuant to Article 14(3)
the marking of the tests, infringement of the rules of the
                                                                           of Council Regulation (EEC) No 4253/88 of 19 December
competition, of the general principles of transparency, neu-
                                                                           1988, laying down provisions for implementing Regulation
trality and impartiality, and failure to treat the candidates
equally.                                                                   (EEC) No 2052/88 as regards coordination of the activities of
                                                                           the different Structural Funds between themselves and with
                                                                           the operations of the European Investment Bank and the other
                                                                           existing financial instruments (OJ 1988 L 374, p. 1), in
In the applicant’s view, his legitimate professional expectations          respect of the financing of operational programmes concerning
were thus prejudiced, so that annulment of the competition
                                                                           Objectives 3 and 4, actions of the Economic Public Bodies to
would not suffice to make good the damage suffered. He                     be undertaken in the southern-central and southern regions,
therefore asks for the material and non-material damage                    and relating to structural action by the Bodies themselves in
suffered by him as a result of its conduct to be compensated,              the regions covered by Objective 1.
in particular loss of earnings, including the benefits which the
applicant should have obtained in all likelihood or probability.
                                                                           In support of its claims, the applicant alleges:
                                                                           —     infringement of the rights of the defence, since at no time
                                                                                 during the administrative procedure was it given an
                                                                                 opportunity to make its views known either to the
                                                                                 national authorities or to the Commission itself.
Action brought on 14 August 2002 by Ricostruzione                          —     misapplication of the relevant legislation, in particular of
Industriale (IRI) SpA against Commission of the European                         the provisions on ECU/national currency exchange rates
                           Communities                                           to be applied for the purpose of determining the avail-
                                                                                 ability of financing for individual operational pro-
                                                                                 grammes within the framework of the ESF, the initial
                         (Case T-249/02)
                                                                                 request having been submitted in the national currency,
                                                                                 which led to a reduction by comparison with the
                         (2002/C 233/63)                                         maximum payable amount under the original decision
                                                                                 granting the funds.
                   (Language of the case: Italian)                         —     the existence of manifest errors of assessment in
                                                                                 implementing a number of deductions on final settlement
                                                                                 of the operational programme which is covered by the
                                                                                 contested decision. In particular, it contains a number of
An action against the Commission of the European Communi-                        computational errors committed by the national auth-
ties was brought before the Court of First Instance of the                       ority, when it drew up the request for the balance, which
European Communities on 14 August 2002 by Ricostruzione                          did not carry out the checks which it was required to do
Industriale (IRI) SpA, represented by Gian Michele Roberti,                      under the relevant Community legislation regarding ESF
Alessandra Franchi and Roberto De Lisa, lawyers.                                 assistance.