CELEX: C2000/079/70
Language: en
Date: 2000-03-18 00:00:00
Title: Case T-343/99: Action brought on 1 December 1999 by Hans-Werner Schmidt against the Commission of the European Communities

C 79/32                 EN                  Official Journal of the European Communities                                     18.3.2000
The applicant claims that the Court should annul the contested         (c) Defects of reasoning
decision on the following grounds:
                                                                           The Commission has infringed Article 253 EC by giving in
                                                                           the Decision inadequate reasons in two principal areas:
(a) Misapplication of Council Regulation (EEC) No 4064/89 (the
    ‘ECMR’), in particular in respect of the finding of collective         — There are certain important elements of argument and
    dominance                                                                   evidence adduced by the applicant which have been
                                                                                ignored by the Commission in its Decision. By ignoring
    It is common ground between the applicant and the                           them, the Commission fails to give adequate reasons
    Commission that the ECMR prohibits the creation or                          for its Decision.
    strengthening of a collective dominant position within
    a relevant product and geographic market within the                    — In certain key areas of the Decision, the reasoning of
    Community. The relevant test is whether as a result of the                  the Commission is logically defective.
    creation or strengthening of a dominant position effective
    competition would be significantly impeded.                        (d) Breach of the principle of legal certainty
                                                                           The Commission has infringed the principle of legal
    In the application of that test the overriding principle is to         certainly in that it has departed from its own previous
    establish, using a prospective analysis of the relevant                decisional case-law and the case-law of the European Court
    market, whether effective competition would be signifi-                of Justice and the Court of First Instance, particularly in its
    cantly impeded by the undertakings involved in the                     approach in establishing and applying a test for collective
    concentration and one or more other undertakings which                 dominance which rests on ‘incentives’ and ‘rational’
    together, in particular because of factors giving rise to a            actions, but without the need for tacit collusion.
    connection between them, are able to adopt a common
    policy on the market and act to a considerable extent
    independently of their competitors, their customers and
    ultimately of consumers.
    The ability to adopt a common policy involves tacit
    collusion between the undertakings concerned. Tacit col-
    lusion means some form of coordination to identify,                Action brought on 1 December 1999 by Hans-Werner
    achieve and sustain such a common policy. Coordination             Schmidt against the Commission of the European Com-
    itself involves what is known as a punishment mechanism                                          munities
    to deter any deviation from the common policy.
                                                                                                (Case T-343/99)
    In carrying out its prospective analysis of the conduct
    of the three alleged oligopolists the Commission has                                         (2000/C 79/70)
    misapplied the ECMR in the following ways:
                                                                                          (Language of the case: French)
    — It has not based its case on tacit collusion; it has
         replaced that essential and stringent requirement with
                                                                       An action against the Commission of the European Communi-
         a lesser test founded on ‘unilateral’ effects, consisting
                                                                       ties was brought before the Court of First Instance of the
         of what are described as incentives and rational
                                                                       European Communities on 1 December 1999 by Hans-Werner
         behaviour to achieve, in the present case, a reduction
                                                                       Schmidt, residing at Konz (Federal Republic of Germany),
         in capacity and prices above competitive levels. That
                                                                       represented by Georges Vandersanden and Laure Levi, of the
         falls short of the necessary test which requires the
                                                                       Brussels Bar, with an address for service in Luxembourg at the
         Commission to establish more, namely the coordi-
                                                                       offices of the Société de la Gestion Fiduciaire, 2-4 Rue Beck.
         nation and the common policy referred above.
                                                                       The applicant claims that the Court should:
    — Tacit collusion, just as active collusion, requires a
         punishment mechanism to be effective. The Com-                — annul the implicit decision rejecting the application made
         mission wrongly claims that this essential requirement            by the applicant on 5 October 1998 by which he sought
         is not necessary.                                                 (i) the confirmation of the appointing authority that it
                                                                           would close the disciplinary proceedings brought against
(b) Manifest errors of appreciation                                        him by adopting the decision referred to in the third
                                                                           paragraph of Article 7 of Annex IX to the Staff Regulations
                                                                           of officials of the EC on the basis of the reasoned opinion
    The Commission has committed manifest errors of                        of the Disciplinary Board dated 16 July 1997, (ii) an award
    appreciation of the facts relating to the market and the               of damages provisionally fixed, on an equitable basis, in
    conduct of undertakings within this market, resulting in a             the sum of LFR 500 000 and (iii) the immediate and
    failure to comply with the requisite legal standard and thus           definitive cessation of any investigation carried out by the
    in an error of law.                                                    appointing authority without the applicant’s knowledge;
 ---pagebreak--- 18.3.2000               EN                    Official Journal of the European Communities                                       C 79/33
— award damages provisionally estimated, on an equitable                 Action brought on 1 December 1999 by Lucı́a Recalde
     basis, as amounting to LFR 600 000;                                 Langarica against Commission of the European Communi-
                                                                                                         ties
— order the defendant to pay the costs.
                                                                                                  (Case T-344/99)
Pleas in law and main arguments
                                                                                                   (2000/C 79/71)
In June 1996 the appointing authority notified the applicant
of its decision to open disciplinary proceedings against him on
account of alleged tampering with the computer program                                      (Language of the case: Spanish)
relating to the remuneration of officials. The Disciplinary
Board delivered its reasoned opinion in July 1997, in which it
proposed imposition of the disciplinary measure of a written             An action against the Commission of the European Communi-
warning. Ultimately, in the context of the discussion provided           ties was brought before the Court of First Instance of the
for in the third paragraph of Article 7 of Annex IX to the Staff         European Communities on 1 December 1999 by Lucı́a
Regulations, the appointing authority expressed its wish to              Recalde Langarica, residing in Brussels, represented by Ramon
make further inquiries. In March 1998 the applicant’s advisers           Garcı́a-Gallardo and Gerard Pérez Olmo, of the Madrid and
were informed that the appointing authority had decided to               Barcelona Bars respectively, of S.J. Berwin & Co, 19 Square de
refer the matter once again to the Disciplinary Board. The               Meeûs, Brussels.
applicant was subsequently informed that his personal file was
being examined by DG IX.
                                                                         The applicant claims that the Court should:
Against that background, the applicant, in bringing the present
action, contests in particular the rejection by the appointing           — annul the measure adopted by the Commission by means
authority of his application for the closure of the disciplinary              of its letter of 26 February 1999, and subsequently
proceedings brought against him.                                              implemented by means of acts communicated by letter
                                                                              of 5 May 1999, whereby the applicant’s entitlement to
                                                                              expatriation allowance was retrospectively withdrawn.
In support of his claims, the applicant pleads:
                                                                         — order the defendant to pay the costs.
— infringement of the third paragraph of Article 7 of
     Annex IX to the Staff Regulations, failure to comply with
     the duty to have regard for the welfare and interests of
     officials and failure to comply with the principles of good         Pleas in law and main arguments
     management and sound administration. He maintains in
     that regard that the appointing authority has known since
     September 1997 that he did not wish to add anything to              The applicant in the present case contests the appointing
     the statements made in the context of the investigation of          authority’s refusal to recognise her claim to expatriation
     the file in issue. Moreover, whilst the appointing authority        allowance as from her entry into the service of the Com-
     is not bound by strict or mandatory time-limits for the             mission. She observes in that regard that the refusal was
     purposes of adopting the decision referred to in the third          adopted retroactively, after the defendant administration itself
     paragraph of Article 7 of Annex IX to the Staff Regulations,        had, in mid-1996, provisionally granted her the aforemen-
     such a decision must nevertheless be taken within a                 tioned allowance. Following that provisional allocation, the
     reasonable time;                                                    applicant did not receive any notification whatsoever that her
                                                                         file was under review, which, together with the fact that she
— infringement of the rights of the defence, of Article 87 of            continued to receive the allowance in question, led her to
     the Staff Regulations and of Articles 1, 7 and 11 of                believe her situation with the Commission to be definitive.
     Annex IX to the Staff Regulations. In that regard, he
     maintains, inter alia, that disciplinary proceedings, as
     organised by the Staff Regulations, do not authorise the            The applicant categorically denies having worked and pursued
     appointing authority, in the context of one and the same            a professional activity in Belgium during the five years
     set of proceedings, to proceed to make further inquiries            preceding the six months prior to her entering the Community
     after the Disciplinary Board has delivered its reasoned             civil service. In support of her arguments, she claims that:
     opinion. Moreover, the hearing referred to in the third
     paragraph of Article 7 of Annex IX to the Staff Regulations         — her fundamental rights of defence were infringed with
     cannot be used by the appointing authority in order to                   regard to the obligation to state reasons for the adoption
     pursue an inquiry. By the same token, the Disciplinary                   of Community administrative acts;
     Board’s opinion of 25 November 1999 stated in clear
     terms that no new facts existed which might warrant the
                                                                         — the principle of legitimate expectations was infringed;
     matter being referred a second time to that Board.
                                                                         — the contested decision was unlawfully implemented with
                                                                              retroactive effect;