CELEX: C1996/145/24
Language: en
Date: 1996-05-18 00:00:00
Title: Action brought on 21 March 1996 by Armel de Kerros against the Commission of the European Communities (Case T-40/96)

No C 145/ 12           EN                   Official Journal of the European Communities                                   18 . 5 . 96
Action brought on 15 March 1996 by Société Guérin                      Instance of the European Communities on 15 March 1996
Automobiles against the Commission of the European                     by Service pour le Groupement d'Acquisitions ( SGA ),
                             Communities                               established at Istres ( France ), represented by Jean Claude
                          ( Case T-38/96 )                             Fourgoux, of the Paris Bar, with an address for service in
                                                                       Luxembourg at the Chambers of Pierrot Schiltz, 4 , rue
                            ( 96/C 145/22 )                            Béatrix de Bourbon .
                  (Language of the case: French)
                                                                       The applicant claims that the Court should :
An action against the Commission of the European
Communities was brought before the Court of First                      — declare that the Commission has failed to take steps in
Instance of the European Communities on 15 March 1996                      the matter since 6 November 1995 and, in so far as the
by Société Guérin Automobiles, established at Alençon                       Court interprets the silence of the Commission in
 ( France ), represented by Jean Claude Fourgoux, of the Paris              response to the request for interim measures as
Bar, with an address for service in Luxembourg at the                      tantamount to a refusal, annul that decision,
Chambers of Pierrot Schiltz, 4 , rue Béatrix de Bourbon .
The applicant claims that the Court should :                           — award SGA in any event the sum of ECU 150 000 as
                                                                           damages in addition to those applied for,
— declare that the Commission has wrongfully failed to
     act ,                                                            — order the Commission to pay the costs.
— declare         that   the      Commission     has    incurred
     non-contractual liability towards Guérin Automobiles,             Pleas in law and main arguments
     and order it to pay the applicant compensation for the
     damage, assessed at FF 1 660 912, equivalent to ECU              The applicant, an undertaking carrying on business as an
     237 273 ,                                                         intermediary in the distribution of all makes of motor
                                                                       vehicle, contests the Commission's refusal to act on the
— order the Commission to pay the costs .
                                                                      complaint lodged by it against the pressure applied by PSA
Pleas in law and main arguments                                        on Peugeot and Citroën concessionaires situated in other
                                                                      Member States in order to prevent supplies from reaching
The applicant company, which has already brought an                   agents and to partition the market.
action for a declaration that the Commission unlawfully
refrained from taking a decision in response to its complaint         The pleas in law and main arguments are the same as those
concerning the imposition by Nissan France of a dealership             in Case T- 1 89/95 SGA v . Commission .
scheme incompatible with Commission Regulation ( EEC )
No 123/85 ('), has now brought fresh proceedings for a
declaration of failure to act, which also concern the
non-adoption by the Commission of a position on the
complaint, but which are based this time on a second formal
notice sent to the Commission on 2 January 1996 in
consequence of the objection of inadmissibility on the
ground of lateness raised by the Commission in the first              Action brought on 21 March 1996 by Armel de Kerros
action . As regards the application in respect of liability, in          against the Commission of the European Communities
which the applicant seeks compensation for the damage                                          Case T-40/96 )
caused by the Commission's conduct, the applicant merely                                       ( 96/C 145/24 )
claims once again the compensation applied for in the first
action, adding the amount of interest which has accrued to
date since the initiation of that action .                                           (Language of tbe case: French)
(M Case T-195/95 , OJ 1995 C 333 , p . 21 .
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of First
                                                                      Instance of the European Communities on 21 March 1996
                                                                      by Armel de Kerros, residing in Grez-Doiceau ( Belgium ),
Action brought on 15 March 1996 by Service pour le                    represented by Jean-Noël Louis, Thierry Demaseure and
Groupement d'Acquisitions ( SGA) against the Commission               Ariane Tornel, of the Brussels Bar, with an address for
                 of the European Communities                          service in Luxembourg at the offices of Fiduciaire Myson
                                                                      SARL, 1 , rue Glesener.
                         ( Case T-39/96 )
                           ( 96/C 145/23 )
                                                                      The applicant claims that the Court should :
                 (Language of the case: French)
                                                                      — annul the decision of the Selection Board in competition
An action against the Commission of the European                           COM/T/B/96 not to admit the applicant to the tests in
Communities was brought before the Court of First                          the competition,
 ---pagebreak--- 18 . 5 . 96            EN                 Official Journal of the European Communities                                 No C 145/ 13
— order the defendant to pay the costs .                             — order the defendant to pay the costs .
Pleas in law and main arguments                                      Pleas in law and main arguments
The applicant, a grade B 5 member of the temporary staff,            The contested decision states that the prohibition
contests the decision of the selection board in internal             precluding the export to other Member States of the
competition COM/T/B/96 refusing to admit the applicant to            products known as 'Andalate' and 'Andalate 20 mg LP',
the tests in the said competition on the ground that he did          alternatively 'Andalat' and 'Andalat-Retard ', agreed in the
not meet the condition of the completion of a minimum of             context of the continuing dealings between the applicant
three years ' uninterrupted service with the European                and its wholesalers in France or Spain, constitutes an
Communities as a member of the temporary staff.                      infringement by the applicant of Article 85 ( 1 ) of the EC
                                                                     Treaty; it enjoins the applicant to cease the infringement and
He points out in that regard that his application was rejected       imposes on it a fine of ECU 3 000 000 .
on account of an interruption of 15 days in the contractual
relations between him and the Commission .                           The applicant contends that its commercial practices are
                                                                     limited to a unilateral fixing of quotas by means of purely
He advances the following pleas in support of his action :           internal measures, without any agreement with the
                                                                     wholesalers . It submits that, in practical terms, the contested
— breach of the right of members of temporary staff to take          decision subjects it, as an undertaking not occupying a
     part in internal competitions and infringement of the           dominant position in the market, to an obligation to
     first paragraph of Article 21 and the first paragraph of        contract. A refusal to supply would in itself be pertinent
     Article 29 of the Staff Regulations, inasmuch as the            from the standpoint of cartel law, in accordance with
     criterion requiring candidates to have completed a              Article 86 , only if the undertaking refusing to supply
     period of uninterrupted service may result in the               dominated the market. The lengthy interpretation by the
     elimination of candidates possessing the same or better         Commission of the sanctions provided for by Article 85
     qualifications than those of other candidates admitted to       ignores the essential element of ' agreement', namely
    the competition,                                                 consensus ad idem, and goes beyond the limits laid down by
                                                                     constitutional and basic law, as well as contravening the
— a manifest error of assessment in the present case, in that        principle of the rule of law and the principle of certainty. In
     it appears that the applicant was in fact in the service of     view of the fact that this was clearly a 'test case ' for the
    the Commission from 16 March 1992 to 31 March                    Commission, in which the Commission was breaking
     1996 .                                                          new legal ground, the imposition of the fine was
                                                                     disproportionate .
                                                                     The applicant further relies, in the alternative, on the fact
                                                                     that the unilateral cutbacks in supplies are justified to a
                                                                     substantial extent by the patent protection existing in the
                                                                     United Kingdom in respect of ' Andalat-Retard'.
Action brought on 21 March 1996 by Bayer AG against the
          Commission of the European Communities
                        ( Case T-41/96 )
                          ( 96/C 145/25 )
                                                                     Action brought on 27 March 1996 by Société de
               (Language of the case: German)                        Distribution de Mécaniques et d'Automobiles against the
                                                                             Commission of the European Communities
An action against the Commission of the European                                             ( Case T-45/96 )
Communities was brought before the Court of First
Instance of the European Communities on 21 March 1996                                          ( 96/C 145/26 )
by Bayer AG, Leverkusen ( Federal Republic of Germany ),
represented by Joachim Sedemund, Rechtsanwalt, Cologne,                              (Language of the case: trench)
with an address for service in Luxembourg at the Chambers
of Aloyse May, 31 , Grand-Rue .                                      An action against the Commission of the European
                                                                     Communities was brought before the Court of First
The applicant claims that the Court should:                          Instance of the European Communities on 27 March 1996
                                                                     by Société de Distribution de Mécaniques et d'Automobiles,
— annul the defendant's decision ( Case IV/34.279/F3 ) of            established at Istres ( France ), represented by Jean Claude
     10 January 1 996 , which was notified to the applicant on       Fourgoux, of the Paris Bar, with an address for service in
     22 January 1996 ,                                               Luxembourg at the Chambers of Pierrot Schiltz, 4, rue
                                                                     Béatrix de Bourbon .
— in the alternative, set aside the fine of ECU 3 million
     imposed on the applicant,                                       The applicant claims that the Court should :
— in the further alternative, reduce the fine,                       — declare that the Commission has failed to act,