CELEX: C1998/041/46
Language: en
Date: 1998-02-07 00:00:00
Title: Action brought on 2 December 1997 by Vicente Alonso Morales against the Commission of the European Communities (Case T-299/97)

C 41/22               EN                  Official Journal of the European Communities                                     7.2.98
Pleas in law and main arguments adduced in support:                      proposed for Air France, not taking into account the
                                                                         importance of the objective of privatisation,
                                                                         prohibition on further State aid, prohibition of
The applicant, a limited private law company operating in                acquiring new shares in other air carriers, abolition of
the air transport industry, contests the Commission's                    all forms of preferential treatment, imposition of an
decision which considered the investment provided for in                 analytical accounting system, prohibition on price
the restructuring plan submitted to the defendant by the                 leadership, requirement to dispose of the share held in
Italian authority to be State aid within the meaning of                  MaleÂv).
Article 92 of the EC Treaty.
In support of its claims, the applicant relies on the                Finally, the applicant considers that the defendant did not
following pleas in law:                                              provide a proper statement of reasons for the contested
                                                                     decision or examined carefully and impartially all the
                                                                     factors relevant to the case. The applicant also claims that
Ð Infringement         and     erroneous     application     of      it breached the rights of the defence.
     Articles 92(1), 90(1) and 222 of the EC Treaty,
     inasmuch as the Commission considered that the
     criterion of the investor operating in a market
     economy is not fulfilled so far as concerns the
     investment made by Istituto per la Ricostruzione
     Industriale (IRI) of Lit 2 750 billion. Alitalia maintains
     in that regard that the capital injection in question did
                                                                     Action brought on 2 December 1997 by Vicente Alonso
     not preclude the right of option of third parties who
                                                                          Morales against the Commission of the European
     were thus free to subscribe to the various tranches of
                                                                                             Communities
     the capital increase in proportion to their shares.
     Moreover, the Italian Government had clearly stated                                   (Case T-299/97)
     its firm determination to privatise Alitalia as soon as
     possible once authorization had been obtained for the                                   (98/C 41/46)
     capital increase. Finally, its employees agreed to
     subscribe to a capital increase reserved to them which
     would give them a 20 % share of the company's                                 (Language of the case: Spanish)
     capital. The defendant ignored those factors and did
     not take account of the wide margin of discretion of
     IRI as an investor, but rather substituted its own              An action against the Commission of the European
     assessment for that of IRI and found unsatisfactory the         Communities was brought before the Court of First
     profit rate which the Commission itself had set at a            Instance of the European Communities on 2 December
     level (20 %) five points higher than that considered            1997 by Vicente Alonso Morales, residing in Madrid,
     normal in the air transport industry (15 %).                    represented by Ramón MareÂs Salvador, of the Madrid Bar,
     Furthermore, the Commission did not restrict itself to          with an address for service in Luxembourg at the
     requiring a normal' profitability of 20 %, but instead         Chambers of Carlos Amo QuinÄones, 2 Rue Gabriel
     set an annual rate of return (hurdle rate) which, in its        Lippman.
     opinion, an investor would require in view of the
     continuing large risks of the operation. In this regard,
     the applicant adds that the calculation of profitability        The applicant claims that the Court should:
     is erroneous and the statement of grounds is defective
     inasmuch as insolvency costs are not included.
     Moreover, to require Alitalia to bear all the costs of          Ð annul the decision of 1 October 1997 of the selection
     the early retirement programme for employees also                   board in competition COM/A/1047 to reject the
     entailed a reduction of the internal rate of return                 applicant's candidature to that competition and
     (IRR),                                                              acknowledge the applicant's right to be included in the
                                                                         list of eligible candidates for competition COM/A/
                                                                         1047,
Ð Infringement and erroneous application of the third
     paragraph of Article 92 and misuse of powers. Alitalia
     finds it inexplicable that, having decided that the
     investment was State aid', the Commission should               Ð order the Commission of the European Communities
     have failed to take into account the results which the              to pay the costs.
     plan was expected to achieve, above all with regard to
     deciding whether or not to impose conditions to
     render the plan compatible with the common market',            Pleas in law and main arguments adduced in support:
     and, secondly with regard to the gradual introduction
     of such conditions. That led to the placing on the
     applicant of conditions which are disproportionate,             The applicant, who is an ingeniero teÂcnico en industrias
     discriminatory, unlawful and unjustified (limitation on         agrícolas' (agricultural industry expert), challenges the
     capacity and growth, requirement to dispose of more             decision of the selection board for general competition
     of its non-core business, different solution to that            COM/A/1047 to reject his candidature to that
 ---pagebreak--- 7.2.98                  EN                  Official Journal of the European Communities                                   C 41/23
competition. According to that decision, the applicant's               Action brought on 2 December 1997 by Benito Latino
certificates and diplomas did not fulfil the conditions laid             against the Commission of the European Communities
down in point III.B.2 of the competition notice, according                                   (Case T-300/97)
to which candidates were required to have completed full
university studies certified by a diploma (degree or                                           (98/C 41/47)
equivalent).
                                                                                      (Language of the case: French)
The applicant considers that possession of the diploma in              An action against the Commission of the European
ingeniería teÂcnica' presupposes full university studies              Communities was brought before the Court of First
certified by a diploma and that the selection board is                 Instance of the European Communities on 2 December
imposing a requirement which does not appear in the                    1997 by Benito Latino, residing in Brussels, represented by
wording of the vacancy notice.                                         Olivier Eben, of the Brussels Bar, 11 Rue Paul Emile
                                                                       Janson, Brussels.
In support of his claims, the applicant puts forward the               The applicant claims that the Court should:
following pleas in law:
                                                                       Ð order the Commission to pay, pursuant to Article 73
                                                                           of the Staff Regulations and Article 14 of the Rules on
Ð Breach of the principle of equal treatment,
                                                                           the insurance of officials of the European
                                                                           Communities against the risk of accident and of
                                                                           occupational disease, a capital sum, based on the rate
Ð Infringement of Directive 89/48/EEC (1), the provisions
                                                                           of permanent partial incapacity determined by the
     of which are considered applicable, by way of analogy,
                                                                           Court, in respect of the asbestosis contracted by the
     to any competition notice,
                                                                           applicant,
Ð Breach of the principle of proportionality, inasmuch                 Ð order the Commission to pay ECU 1 000 000 by way
     as, in the applicant's view, the requirement to hold a                of compensation for the non-material damage suffered
     long cycle diploma is neither necessary nor                           by the applicant,
     appropriate in order to achieve the objective pursued,
     which is simply that of recruiting into the A/LA                  Ð order the Commission to pay interest at the rate of
     category of the Community civil service individuals                   10 % per annum on the capital sum found by the
     who have followed full university degree courses                      Court to be payable in accordance with the rate of
     certified by a diploma,                                               permanent partial incapacity determined pursuant to
                                                                           Articles 73 and 14 of the Staff Regulations, and on the
                                                                           capital sum of ECU 1 000 000, such interest to be
Ð Breach of the principle of legal certainty and of                        calculated from 1 August 1997 until payment in full of
     legitimate expectations,                                              that capital sum,
                                                                       Ð annul, in so far as may be necessary, the decision of
Ð Breach of the right of access to the Community public                    the Commission of 1 August 1997 refusing the
     service.                                                              applicant's request of 11 May 1997,
                                                                       Ð order the Commission to pay all the costs.
The applicant further affirms that, in its judgment in Case
T-82/92 Manuel CorteÂs JimeÂnez v. Commission [1994] (2),
                                                                       Pleas in law and main arguments adduced in support:
the Court of First Instance simply rejected the higher'
nature of the ingeniero teÂcnico' diploma without,
however, thereby expressly rejecting the full' nature of              The applicant, a former official who worked in the
that diploma.                                                          Berlaymont building in Brussels as an archivist from 1969
                                                                       to 1991, has contracted an occupational disease,
                                                                       asbestosis. On 11 February 1997 the appointing authority
The applicant also claims that the defendant has misused               decided to recognize the applicant as having a permanent
its power inasmuch as, in his view, the contested act forms            partial incapacity (PPI) rate of 5 %, equivalent to a capital
part of a staff selection policy intended to prevent access            sum of Bfrs 639 114.
by ingenieros teÂcnicos' to the A/LA category.
                                                                       The applicant maintains that, in view of the seriousness of
                                                                       that mortal illness and the physical consequences resulting
(1) Council Directive of 21 December 1988 on a general system
                                                                       from it, which will totally reduce his quality of life, he
    for the recognition of higher-education diplomas awarded on
    completion of professional education and training of at least      should be awarded a PPI percentage reflecting with the
    three years' duration (OJ L 19, 24.1.1989, p. 16).                 seriousness of his illness. According to the applicant, the
(2) ECR II-237.                                                        Commission is guilty of having required him to work in a
                                                                       building in which, between 1967 and 1969, the workers
                                                                       were exposed to the flaking' of 4 000 tonnes of asbestos
                                                                       on the south and west walls, despite the fact that: