CELEX: C2003/184/101
Language: en
Date: 2003-08-02 00:00:00
Title: Case T-189/03: Action brought on 2 June 2003 by ASM Brescia S.p.A. against Commission of the European Communities

C 184/46               EN                         Official Journal of the European Union                                           2.8.2003
—     annul the decision of the appointing authority of                   Action brought on 2 June 2003 by ASM Brescia S.p.A.
      17 February 2003, notified on 24 February 2003,                          against Commission of the European Communities
      dismissing the applicant's complaint of 9 October 2002;
                                                                                                   (Case T-189/03)
—     restore all the applicant's pecuniary rights;
                                                                                                  (2003/C 184/101)
—     order the defendant to pay default interest on sums owed
      to the applicant as education allowance for the school
      years 1999-2000 and 2000-2001 and 2001-2002, that                                      (Language of the case: Italian)
      interest to run for the first two school years from 17 June
      2002 until the sums are paid in full; for the school year
      2001-2002 interest to run from 17 June 2002 to
      13 August 2002 for the first and second terms and                   An action against the Commission of the European Commu-
      from 8 March 2002 to 7 May 2002 for the third term.                 nities was brought before the Court of First Instance of the
      The rate of default interest to apply must be calculated on         European Communities on 2 June 2003 by ASM Brescia S.p.
      the basis of the rate set by the European Central Bank for          A., represented by Fausto Capelli, Francesca Vitale and Massi-
      capital refinancing operations in force during the period           miliano Valcada, lawyers.
      concerned, increased by two percentage points;
                                                                          The applicant claims that the Court should:
—     order the defendant to pay one euro as compensation for
      the non-material damage suffered by the applicant;                  —     in substance, annul Article 2 of Commission Decision
                                                                                2003/193/EC of 5 June 2002, published in OJ 2003
                                                                                L 77, by which the European Commission declared
—     order the defendant to pay all the costs.
                                                                                incompatible with the common market the measures
                                                                                adopted by the Italian Republic under Article 2(70) of
                                                                                Law No 549 of 28 December 1995 and Article 66(14) of
                                                                                Decree Law No 331 of 30 August 1993, converted into
                                                                                Law No 427 of 29 October 1993 granting exemption
                                                                                from income tax to joint stock companies with majority
                                                                                public shareholdings set up in accordance with Law
Pleas in law and main arguments                                                 No 142 of 8 June 1990;
                                                                          —     in substance, in the alternative, annul Article 3 of
The applicant's daughter was born in 1996 and began to                          Commission Decision 2003/193/EC of 5 June 2002,
attend the French Lycée in Brussels in September 1999.                          published in OJ 2003 L 11, by which the European
                                                                                Commission ordered the Italian Republic to recover
                                                                                granted to, inter alios, the applicant;
In support of her application the applicant relies, first, on
breach of Article 3 of Annex VII to the Staff Regulations,                —     order the European Commission to pay the costs.
breach of Article 15 of Annex X to the Staff Regulations and
the Council Decision of 19 December 1998 laying down
general implementing provisions in respect of Annex X to the
Staff Regulations. She also complains that the Council took a
decision on grounds that are wrong in fact and law. The
applicant claims that despite the clear terms of the national             Pleas in law and main arguments
rules applicable to schooling and the replies given by the
French Government on those rules, the Council considered
that her daughter's schooling was not primary education.                  The applicant in the present action, the former azienda muni-
                                                                          cipalizzata (municipal undertaking) of Brescia is contesting the
                                                                          decision of the Commission of 5 June 2002 (1), in which it
The applicant further alleges that the principle of non-discri-           considered State aid the three-year exemption (1997 to 1999)
mination was infringed in that children registered at a French            from income tax, provided for by Italian legislation for former
educational establishment are not treated in the same way as              municipal undertakings which became companies with a
children registered in a Luxembourg, British or Dutch educa-              majority public shareholding and accordingly ordered recovery
tional establishment.                                                     of the appropriate amounts.
                                                                          In support of its claims, the applicant alleges the following:
Lastly the applicant alleges that the requirement to state
reasons and the fundamental right to a hearing have been
infringed. The applicant states that the Council did not take             —     in the contested decision, the defendant appears to have
account of the opinion of the French authorities and did not                    conducted its analysis while completely disregarding the
explain why they did not do so.                                                 special nature of the public utilities sector, namely that it
                                                                                ensures public provision of certain minimum services
                                                                                deemed to be of fundamental importance.
 ---pagebreak--- 2.8.2003                 EN                            Official Journal of the European Union                                         C 184/47
—     The contested decision does not take account of the fact                 Action brought on 21 May 2003 by Sanni Olesen against
      that, in the years concerned, in the public utilities sector                    the Commission of the European Communities
      there were a number of de jure and de facto monopolies
      such as to exclude a market open to competition. The
      Commission merely assumed, without putting forward                                                (Case T-190/03)
      any evidence, the presence of an open competitive
      market. In that regard, the Court should find that the
      Commission has failed to provide adequate reasons inas-                                          (2003/C 184/102)
      much as it has found competition to have been infringed
      on a single ground: the alleged damage suffered by those
      undertakings which are not beneficiaries of the measures                                    (Language of the Case: French)
      provided for by the legislation in question in the event
      that they should compete with the beneficiary undertak-
      ings for the same contracts.
                                                                               An action against the Commission of the European Commu-
                                                                               nities was brought before the Court of First Instance of the
                                                                               European Communities on 21 May 2003 by Sanni Olesen,
                                                                               resident in Brussels, represented by Sébastien Orlandi, Albert
—     Since the inquiry was opened only in so far as concerned                 Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an
      exclusively the local public utilities market where it was               address for service in Luxembourg.
      assumed that there was open competition, the final deci-
      sion could not assess the impact of the measures on
      other markets which were not concerned by the decision
                                                                               The applicant claims that the Court should:
      to initiate the procedure. Finally, the measures in question
      cannot be deemed incompatible with the common market
      in so far as those undertakings could, in theory, have                   —     annul the Commission's decision of 19 April 2002 not to
      operated in a market other than that of local public                           grant her an expatriation allowance from her entry into
      utilities, which is the only one under formal investigation.                   service on 3 March 2002;
                                                                               —     order the Commission to pay the costs.
—     The provision which limits the ‘tax moratorium’ to only
      three years does not introduce any new State aid, rather it
      merely amends a tax regime which has been applicable to
      a defined category of taxpayer since 1925.
                                                                               Pleas in law and main arguments
                                                                               The applicant in this case, a Grade A official with the
—     Should the Court find that this is a case of State aid, it               Commission, opposes the Commission's decision not to grant
      should, pursuant to Article 87(3)(c) of the Treaty, be                   her an expatriation allowance because she worked in Belgium
      declared compatible with the common market inasmuch                      from 15 June 1995. Since that date she has lived in Belgium
      as the measures are inherent in the nature and/or general                and has had her main occupation there, as a freelance lecturer
      structure of the system in question. Indeed, a change in                 for the Commission's Directorate-General for Education and
      the general system of local public utilities could not have              Culture and as representative in Brussels of the town of
      been successfully carried out if the undertakings which                  Odense (ODENSE KOMMUNE — Denmark).
      had to become companies with a majority public share-
      holding had not been afforded the chance to become
      gradually acquainted with the mechanisms which govern
                                                                               In support of her claims, the applicant pleads breach of
      private law.
                                                                               Article 4(1)(a) of Annex VII to the Staff Regulations. She
                                                                               submits in this connection that:
                                                                               —     the status of freelance lecturer, characterised by a direct
In its application, the applicant also alleges infringement of                       legal link between her and the institution, corresponds to
Article 86(2) of the Treaty inasmuch as it was held in the                           a situation arising from work done for an international
decision that that provision did not apply to the measures in                        organisation;
question.
                                                                               —     under their charters of autonomy, Danish towns may
 1
( ) Commission Decision 2003/193/EC of 5 June 2002 on State aid                      open representations abroad and consequently the appli-
    granted by Italy in the form of tax exemptions and subsidised loans              cant's occupation as representative of the town of Odense
    to public utilities with a majority public capital holding (OJ 2003              must be regarded as ‘work done for another State’,
    L 77, p. 21).                                                                    namely the Kingdom of Denmark.