CELEX: C2000/006/51
Language: en
Date: 2000-01-08 00:00:00
Title: Case T-228/99: Action brought on 12 October 1999 by Westdeutsche Landesbank Girozentrale against the Commission of the European Communities

C 6/28                 EN                    Official Journal of the European Communities                                       8.1.2000
— Moreover, the Commission made inadequate findings of                  Pleas in law and main arguments
     fact and failed to comply with its obligation to state
     reasons within the meaning of Article 253 EC.
                                                                        The application is based on the following grounds:
     Infringement of substantive law
— The Commission applied the concept of reduction of                    The Commission, after its resignation, no longer had jurisdic-
     capacity within the meaning of Article 10a(2)(c) of Direc-         tion to adopt the decision, since its powers were limited to
     tive 90/684/EEC(1) wrongly in law and contrary to its own          current and urgent business.
     previous decision-making practice as meaning a restriction
     of production. The provision is correctly to be understood,
     however, as meaning that only the technical installations
     of a shipyard are to be restricted, regardless of actual           On 8 July 1999, the date when the decision was discussed and
     production. Moreover, by the departure from previous               voted on, the Commission was irregularly composed, since
     practice the principles of protection of legitimate expec-         Commission President Santer and Commissioner Bonino
     tations, equal treatment and proportionality were                  should no longer have been allowed to take part in the
     infringed.                                                         session, following their election to the European Parliament.
                                                                        In addition, Commissioner Bangemann had been wrongly
                                                                        ‘suspended’ by the Commission and excluded from the session.
— In addition, the Commission unlawfully based its decision
     on the total amount of aid approved, without ascertaining
     the amount of aid actually granted.
                                                                        The Commission infringed the applicant’s right to a fair
                                                                        hearing by failing to give it an opportunity to comment either
(1) Council Directive 90/684/EEC of 21 December 1990 on aid to          on the report of the Commission’s advisers, first consulting
    shipbuilding (OJ L 380 of 31.12.1990, p. 27), as amended by         limited, London, which was an essential basis of the reasons
    Council Directive 92/68/EEC of 20 July 1992 (OJ L 219 of            for the decision, or on the comments made by Bundesverband
    4.8.1992, p. 54).                                                   deutscher Banken.
                                                                        The Commission infringed its obligation to state reasons under
                                                                        Article 253 EC, since it did not explain the calculation it used
                                                                        of the return on the Wohnungsbauförderungsanstalt (‘Wfa’)
                                                                        assets, nor showed that the other elements of Article 87(1) EC
                                                                        were present.
Action brought on 12 October 1999 by Westdeutsche
Landesbank Girozentrale against the Commission of the
                    European Communities                                The decision infringes Article 87(1) EC because it extends the
                                                                        concept of aid too far, by applying the principle of the capital
                        (Case T-228/99)                                 investor acting in market-economy conditions, developed for
                                                                        cases of restructuring, without differentiation to the applicant,
                                                                        which is a profitable undertaking. In the decision the Com-
                          (2000/C 6/51)                                 mission moreover requires for the first time that the undertak-
                                                                        ing must achieve an average return for the sector rather than
                                                                        merely a reasonable return.
                  (Language of the case: German)
An action against the Commission of the European Communi-               The Commission overlooks, contrary to its previous decision-
ties was brought before the Court of First Instance of the              making practice and to the case-law of the Court of Justice, the
European Communities on 12 October 1999 by Westdeutsche                 fact that private investors too are not focused exclusively on
Landesbank Girozentrale, of Düsseldorf, Germany, represented            achieving returns. The requirement of an at least average return
by Dr Frank Montag, of Freshfields Deringer, Cologne, with an           discriminates against public undertakings and infringes the
address for service in Luxembourg at the Chambers of Aloyse             guarantee of the right to property in Article 295 EC.
May, 31 Grand’Rue.
The applicant claims that the Court should:                             The Commission applies the principle — which it misunder-
                                                                        stands — of the capital investor acting in market-economy
1. Annul Commission Decision C(1999) 2265 fin. of 8 July                conditions incorrectly and arrives at illusory figures for returns
     1999 concerning a measure taken by the Federal Republic            for the Wfa assets.
     of Germany in favour of Westdeutsche Landesbank Giro-
     zentrale;
                                                                        The Commission wrongly assumes that the risk profile of the
2. Order the Commission to pay the costs.                               Wfa assets is comparable economically with share capital.
 ---pagebreak--- 8.1.2000              EN                      Official Journal of the European Communities                                     C 6/29
The Commission states, as sole reason for the rate of return it          — annul the decisions appointing two other persons to the
regards as usual in the market on the part of the Wfa assets                 posts of Head of the English Language Division and Legal
which is economically usable for the applicant, that in its                  Adviser;
Crédit Lyonnais decision of 1995 it likewise regarded a return
of 12 % after tax as reasonable. The Crédit Lyonnais decision            — order the Council to pay the costs.
is not applicable to the present case, however, because Crédit
Lyonnais was a case of restructuring.
                                                                         Pleas in law and main arguments
The Commission confuses return on equity from the point of
view of the undertaking with return on investment from the
point of view of the capital investor, and wrongly assumes               The applicant contests the appointing authority’s refusal to
that expectations as to returns are in principle to be understood        accept his applications for two grade LA 3 posts.
as net return.
                                                                         In support of his claims, he pleads infringement of:
The rate of return of 12 % after tax for capital investments
used by the Commission is not tenable. The Commission has
confused pre-tax and after-tax figures.                                  — Articles 29 and 45 of the Staff Regulations;
The transfer of Wfa to Westdeutsche Landesbank Girozentrale              — the promotions procedure;
does not have any special features which could justify an
additional 1.5 % on top of the 12 % after tax.                           — the principles of equal treatment and career progression.
The Commission wrongly assumes that the applicant also has               Lastly, the applicant pleads misuse of powers in the present
to pay a consideration for the part of the Wfa assets which is           case.
not usable for it.
Finally, the Commission wrongly fails to take account of the
synergy effects created by the merger of the two credit
institutions in calculating the amount of the consideration to
be paid.
                                                                         Action brought on 12 October 1999 by Colin Joynson
                                                                           against the Commission of the European Communities
                                                                                                 (Case T-231/99)
Action brought on 13 October 1999 by Hans Mc Auley
         against the Council of the European Union
                                                                                                  (2000/C 6/53)
                        (Case T-230/99)
                                                                                           (Language of the case: English)
                          (2000/C 6/52)
                                                                         An action against the Commission of the European Communi-
                   (Language of the case: French)                        ties was brought before the Court of First Instance of the
                                                                         European Communities on 12 October 1999 by Colin Joyn-
                                                                         son, represented by Beeket Bedford, of the Middle Temple
An action against the Council of the European Union was                  and by Messrs Ferdinand Kelly, Solicitors, 21 Bennetts Hill,
brought before the Court of First Instance of the European               Birmingham, B2 5QP, United Kingdom.
Communities on 13 October 1999 by Hans Mc Auley, residing
at Wezembeek-Oppem (Belgium), represented by Jean-Noël
Louis, Greta-Françoise Parmentier and Véronique Peere, of the            The applicant claims that the Court should:
Brussels Bar, with an address for service in Luxembourg at the
offices of Fiduciaire Myson SARL, 30 Rue de Cessange.                    — annul the decision of the Commission in Case
                                                                             IV/36.081/F3 — Bass dated 16 June 1999;
The applicant claims that the Court should:
                                                                         — declare that the Commission is required under Article 233
— annul the Council’s decisions rejecting his applications for               of the Treaty establishing the European Community to
    the grade LA 3 posts of Head of the English Language                     take the necessary measures to comply with the judgment
    Division and Legal Adviser in that division;                             to be delivered;