CELEX: C2004/071/60
Language: en
Date: 2004-03-20 00:00:00
Title: Case T-2/04: Action brought on 2 January 2004 by Cemender Korkmaz, The Corner House and the Kurdish Human Rights Project against the Commission of the European Communities

C 71/32                 EN                         Official Journal of the European Union                                           20.3.2004
European Communities on 31 December 2003 by SIC-                           into account, as investment costs, sums relating to the
Sociedade Independente de Comunicação, S.A, established in                 acquisition of assets when the auditors confirmed that there
Carnaxide (Portugal), represented by Carlos Botelho Moniz,                 was not even any evidence that the assets actually existed.
Eduardo Maia Cadete and Margarida Rosado da Fonseca,
lawyers, with an address for service at Rua Castilho, 75, 1o,
1250-068, Lisbon (Portugal).                                               The applicant argues that the fact that certain measures were
                                                                           found not to constitute State aid within the meaning of
                                                                           Article 87(1) EC amounted to an error of law. Those measures
The applicant claims that the Court should:                                included the exemption from paying fees and emoluments,
                                                                           postponement of the payment of fees for the use of the
annul the decision of the European Communities C(2003)                     television broadcasting network and a bond issue.
3526 (final) of 15 October 2003 on ad-hoc measures applied
to RTP by Portugal.
                                                                           The applicant also claims that the decision errs in law as
                                                                           regards the application of Article 86(2) EC, given that the
                                                                           Portuguese Government did not award public service television
Pleas in law and main arguments                                            broadcasting to RTP on the basis of a transparent and non-
                                                                           discriminatory procedure.
1.    Breach of the duty to act diligently and impartially;
                                                                           Furthermore, the Commission did not observe the criteria for
2.    Errors of fact;                                                      applying Article 86(2), which it laid down itself in the
                                                                           ‘Communication on the application of State aid rules to public
3.    No basis for the finding in the contested decision on                service broadcasting’. The applicant also maintains that, as
      ‘investment costs’;                                                  regards the supply by RTP of a public service, the Commission’s
                                                                           decision is not founded on any documentary evidence as to
4.    Error of law concerning the failure to classify certain              whether RTP actually fulfilled the public-service obligations
      measures as State aid;                                               laid upon it by the State, since, in practice, the facts of the case
                                                                           suggest that, as regards the relevant period, the service which
5.    Error of law as to the conditions for the application of             RTP was contractually bound to provide was not properly
      Article 86(2) EC.                                                    supplied.
As regards the breach of the duty of diligence, the applicant
maintains that the contested decision represented the final
stage in the Commission’s failure to act transparently, impar-
tially and diligently in the way it conducted the procedure
culminating in the adoption of the decision, which was
conducted throughout with a view to justifying the unjustifia-
ble and omitting facts essential for the purpose of an accurate            Action brought on 2 January 2004 by Cemender Kork-
analysis of the way in which RTP ‘fulfilled’ its public service            maz, The Corner House and the Kurdish Human Rights
obligations. It submits that the Commission did not act                    Project against the Commission of the European Com-
neutrally and failed to maintain an equal distance between the                                          munities
interests in play, since it did not thoroughly weigh up the
legally protected interests prior to taking action.
                                                                                                    (Case T-2/04)
In relation to the errors of fact, the applicant maintains, in
particular, that no regard was had to the additional assistance                                    (2004/C 71/60)
granted by the State to the public operator in 1998, whilst
sums which had not been verified by independent auditors
were taken into account as ‘investment costs’. In the applicant’s                            (Language of the case: English)
submission, the Commission also failed to check that RTP had
actually fulfilled its public service obligations.
The applicant claims that there is no basis for taking the                 An action against the Commission of the European Communi-
‘investment costs’ into account in the contested decision, since           ties was brought before the Court of First Instance of the
the Commission fails to state the reasons why it took the                  European Communities on 2 January 2004 by Cemender
relevant sums into account in its final decision and why it,               Korkmaz, Flers, (France), The Corner House, Newton, (United
inconsistently, did not take into account the sums in RTP’s                Kingdom), and the Kurdish Human Rights Project, London,
‘Reports on the Public Service’ but those in RTP’s financial               (United Kingdom), represented by P. Moser, Barrister, and
accounts. It also fails to explain why it was possible to take             A. Stock, lawyer, with an address for service in Luxembourg.
 ---pagebreak--- 20.3.2004              EN                       Official Journal of the European Union                                                  C 71/33
The applicant claims that the Court should:                             Turkey, while on the other hand, the applicants claim that the
                                                                        Commission failed to act by not defining its position and not
                                                                        making a recommendation to the Council regarding the pre-
—     grant an order to declare void the relevant finding in the        accession funding for Turkey. According to the applicants, the
      said Commission Report of 5 November 2003;                        Commission has failed in its duty to make a proposal to the
                                                                        Council under Article 4 of Regulation 390/2001 (1). According
                                                                        to the applicants, the Commission should have made such a
—     grant a declaration that the Commission has failed to act,        proposal because Turkey failed to make the requisite progress
      contrary to the EC Treaty;                                        towards fulfilment of the Copenhagen criteria and failed to
                                                                        move towards the acquis, which, under Article 5 of Regulation
                                                                        2500/2001 (2), are essential preconditions for continuing to
—     grant an order that the Commission do propose to the              grant pre-accession funding.
      Council the freezing of pre-accession assistance pending
      a resolution of Turkey’s failures to comply with the EU
      accession criteria identified by the Commission;
—     grant an order that the Commission do act to address the          The applicants also claim in this respect that Turkey failed to
      Turkish breaches of accession conditions trough the               move towards the entire framework of Community secondary
      institutions of the EU-Turkey Association Agreement;              legislation and in particular the reinforcement of administrative
                                                                        and judicial capacity and the Environmental Impact Assess-
                                                                        ment Directive (3), which are also essential preconditions for
—     grant an order that the Commission recommend to the               continuing to grant pre-accession funding under annex 4 of
      Council the declaration of a moratorium on further                decision 2001/235 (4).
      accession negotiations with Turkey pending the resol-
      ution of the breaches of accession conditions by Turkey;
—     order the Commission to bear the applicants’ costs of this
      application.                                                      The applicants furthermore claim that the Commission, by
                                                                        failing to make the requested proposal, has failed in its duty to
                                                                        interpret the Community legislation consistently with the rules
                                                                        of international law and in particular in relation to the
                                                                        European Union’s obligation under Article 8 of the UN
                                                                        Convention on Biological Diversity of 1992.
Pleas in law and main arguments
The background to the case is the Baku-Tbilisi-Ceyhan Pipeline          Finally, the applicants claim that the Commission has failed to
Project Agreements entered into between Turkey and the                  give reasons for its action and its inaction.
Pipeline project companies. The applicants state that under
these agreements the Turkish Parliament has created a ‘prevail-
ing legal regime’ governing the territory and implementation
of the Pipeline project and abrogating national laws to the
benefit of the oil companies concerned. According to the                (1) Council Regulation (EC) No 390/2001 of 26 February 2001 on
applicants, this has caused access to justice and the right to              assistance to Turkey in the framework of the pre-accession
land to be limited, the Copenhagen criteria of human rights,                strategy, and in particular on the establishment of an Accession
                                                                            Partnership (OJ L 58, p. 1).
the rule of law and the protection of minorities to be weakened
                                                                        (2) Council Regulation (EC) No 2500/2001 of 17 December 2001
and Turkey to move away from the acquis communautaire,                      concerning pre-accession financial assistance for Turkey and
including the impossibility of adopting the principle of                    amending Regulations (EEC) No 3906/89, (EC) No 1267/1999,
supremacy of EC Law and a breach of the environmental                       (EC) No 1268/1999 and (EC) No 555/2000 (OJ L 342, p. 1).
impact assessment criteria.                                             (3) Council Directive 85/337/EEC of 27 June 1985 on the assessment
                                                                            of the effects of certain public and private projects on the
                                                                            environment (OJ L 175, p. 40).
                                                                        (4) 2001/235/EC: Council Decision of 8 March 2001 on the prin-
                                                                            ciples, priorities, intermediate objectives and conditions contained
Therefore, the applicants have requested the Commission take                in the Accession Partnership with the Republic of Turkey (OJ
action to freeze the pre-accession assistance to Turkey and to              L 85, p. 13).
act through the mechanisms of the EU-Turkey Association
agreement. In the present action, the applicants ask on the one
hand for the annulment of the Commission’s ‘2003 Regular
Report on Turkey’s progress towards accession’ insofar as it
includes a negative decision refusing to make a recommen-
dation to the Council regarding the pre-accession funding for