CELEX: C1998/041/45
Language: en
Date: 1998-02-07 00:00:00
Title: Action brought on 26 November 1997 by Alitalia against the Commission of the European Communities (Case T-296/97)

7.2.98                EN                  Official Journal of the European Communities                                     C 41/21
of First Instance (First Chamber), composed of A. Saggio,            2. The Commission is ordered to pay to the applicant the
President, V. Tiili and R. M. Moura Ramos, Judges; H.                    amount of the allowance provided for by Article 5(3)
Jung, Registrar, gave a judgment on 18 December 1997,                    of Annex VII to the Staff Regulations, together with
the operative part of which is as follows:                               interest at the rate of 8 % per annum as from the date
                                                                         of the application.
1. The decision of the Commission, communicated by
     note of 17 May 1995, denying payment to the                     3. The remainder of the application is dismissed.
     applicant of the installation allowance is annulled.
2. The Commission is ordered to pay to the applicant the             4. The Commission shall bear its own costs and one half
     amount of the allowance provided for in Article 5(3)                of the costs of the applicant. The applicant shall bear
     of Annex VII to the Staff Regulations, together with                one half of his own costs.
     interest at the rate of 8 % per annum as from the date
     of the application.                                             (1) OJ C 180, 22.6.1996.
3. The Commission shall bear its own expenses.
(1) OJ C 64, 2.3.1996.
                                                                     Action brought on 26 November 1997 by Alitalia against
                                                                            the Commission of the European Communities
                                                                                            (Case T-296/97)
                                                                                              (98/C 41/45)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                        (First Chamber)
                                                                                     (Language of the case: Italian)
                     of 18 December 1997
in Case T-57/96: Livio Costantini v. Commission of the
                   European Communities (1)                          An action against the Commission of the European
                                                                     Communities was brought before the Court of First
(Officials Ð Change of place of employment Ð Return to               Instance of the European Communities on 26 November
the place of original employment Ð Installation allowance            1997 by Alitalia, represented by Antonio Tizzano and
                Ð Daily subsistence allowance)                       Gian Michele Roberti, of the Naples Bar, Mario Siragusa,
                          (98/C 41/44)                               of the Rome Bar, Giuseppe Scassellati Sforzolini, of the
                                                                     Bologna Bar, Matteo Bay, of the Milan Bar, and Matteo
                                                                     Beretta, of the Bergamo Bar, with an address for service in
                 (Language of the case: Italian)                     Luxembourg at the Chambers of Elvinger Hoss &
                                                                     Prussen, 2 Place Winston Churchill.
In Case T-57/96: Livio Costantini, an official of the
Commission of the European Communities, posted to the                The applicant claims that the Court should:
establishment at Ispra of the Joint Research Centre,
represented by Giuseppe Marchesini, Avvocato with the
right of audience before the Court of Cassation of the               Ð annul in its entirety the Commission's decision of
Italian Republic, with an address for service in                         15 July 1997 relating to Alitalia's recapitalisation, or
Luxembourg at the Chambers of Ernest Arendt, 8Ð10
Rue Mathias Hardt, against Commission of the European
Communities (Agent: Gianluigi Valsesia) Ð application
                                                                     In the alternative:
for annulment of the decisions of the Commission refusing
to pay to the applicant an installation allowance and a
daily subsistence allowance upon the latter's return to his
original place of employment after a period of                       Ð annul the conditions for granting the aid referred to in
employment outwith his institution Ð the Court of First                  Article 1(2) to (8) of the Decision,
Instance (First Chamber), composed of A. Saggio,
President, V. Tiili and R. M. Moura Ramos, Judges; A.
Mair, Administrator, for the Registrar, gave a judgment on           Ð annul also the condition requiring Alitalia to bear the
18 December 1997, the operative part of which is as                      costs of the early retirement scheme provided for by
follows:                                                                 Decree Law No 546/1996,
1. The decision of the Commission refusing the applicant             Ð order the Commission to pay the costs incurred by
     payment of the installation allowance is annulled.                  Alitalia in the course of these proceedings.
 ---pagebreak--- 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