CELEX: C2001/134/12
Language: en
Date: 2001-05-05 00:00:00
Title: Case C-96/01 P: Appeal brought on 27 February 2001 by Galileo Company and Galileo International, LLC against the order dated 15 December 2000 of the Second Chamber of the Court of First Instance of the European Communities in case T-113/99 between Galileo Company and Galileo International, LLC, supported by Amadeus Global Travel Distribution SA, and Council of the European Union, supported by Commission of the European Communities

C 134/8                EN                   Official Journal of the European Communities                                        5.5.2001
      account the impact of the reserved sector when setting its       Galileo International, LLC, established in Rosemount, Illinois,
      charges for services in the competitive sector. It would         United States of America, represented by Mr Richard Plender
      merely be required to comply with Akzo (2), that is to say,      QC, instructed by Ms Katherine Holmes and Mr Daniel Austin,
      to cover at least its variable costs.                            solicitors, of Richards Butler, with an address for service in
                                                                       Luxembourg.
      The judgment does not explain how reserved rights
      affected costs; nor does it indicate how that should have
      been determined.
                                                                       The Appellants seek the following orders from the Court of
—     Infringement of Article 88 EC                                    Justice:
      The judgment disregards the broad discretion attributed
      to the Commission in relation to complex appraisals of           1.    That the Contested Order be set aside.
      an economic nature. However, it is clear from Article 88
      EC that the Commission must enjoy a broad discretion,
      not only in order to assess whether State aid is compatible      2.    That the plea of admissibility raised by the Council
      with the common market, but also to classify a measure                 and supported by the Commission as interveners be
      as State aid when the form of State intervention under                 dismissed.
      investigation is complex.
—     Infringement of Article 87 EC                                    3.    That the Application be declared admissible.
      The judgment errs in holding that all advantages con-
      ferred by the State constitute aid; on the contrary, only        4.    That the case be referred back to the CFI so that the CFI
      the transfer of financial resources may be so classified.              may determine the Application on the merits.
      The judgment has distorted the notion of normal market
      conditions.                                                      5.    That the Council do pay the costs of this appeal and the
                                                                             costs of determining the Council’s plea of admissibility,
                                                                             including the costs of responding to the Commission’s
(1) OJ L 164 of 9.6.1998, p. 37.                                             Statement of Intervention.
(2) Case C-62/86 (1991) ECR I-3359.
                                                                       Pleas in law and main arguments
                                                                       a)    In finding that the contested measure concerns the
Appeal brought on 27 February 2001 by Galileo Company                        applicants in their objective capacity as ‘system’ vendor,
and Galileo International, LLC against the order dated                       in the same way as any other system vendor, the CFI
15 December 2000 of the Second Chamber of the Court                          erred in law in the following material respects:
of First Instance of the European Communities in case
T-113/99 (1) between Galileo Company and Galileo Inter-
national, LLC, supported by Amadeus Global Travel
                                                                             i)    By failing to take into account and apply the
Distribution SA, and Council of the European Union,
                                                                                   consistent case law of the Court of Justice that an
supported by Commission of the European Communities
                                                                                   individual trader, that forms part of a group of
                                                                                   traders that are fixed and identifiable when the
                         (Case C-96/01 P)                                          contested measure is made, may nevertheless be
                                                                                   individually concerned by that measure. Such a
                                                                                   trader may be individually concerned to the extent
                         (2001/C 134/12)                                           that the measure applies to undertakings engaged in
                                                                                   the relevant trade at the time when it was adopted,
An appeal against the order dated 15 December 2000 of the                          and the measure fails to make transitional arrange-
Second Chamber of the Court of First Instance of the European                      ments to protect them against substantial detriment.
Communities in case T-113/99 between Galileo Company and
Galileo International, LLC, supported by Amadeus Global
Travel Distribution SA, and Council of the European Union,                   ii)   By failing to appreciate that the fact that a measure
supported by Commission of the European Communities,                               may be of legislative nature applying to a category
was brought before the Court of Justice of the European                            of traders in general does not prevent it in certain
Communities on 27 February 2001 by Galileo Company,                                circumstances from affecting some of the market
established in Windsor, Berkshire, United Kingdom, and                             participants concerned individualy.
 ---pagebreak--- 5.5.2001               EN                    Official Journal of the European Communities                                           C 134/9
     iii)  By assimilating the position of the existing four            Pleas in law and main arguments
           global CRS operators with all other operators active
           on the relevant market such as system vendors,               Article 40 of BAA’s Articles, which prevents any person from
           airlines or subscribers and in so doing failed to apply      controlling more than 15 % of the company, restricts portfolio
           the case law of the Court of Justice and, in particular
                                                                        investment, and restricts direct investment and, by the same
           the Court’s decision in Bock and Piraiki-Patraiki.           token, establishment: such restrictions fall under Articles 56
                                                                        and 43 of the EC Treaty. While the restriction is not explicitly
b)   In finding that exceptional economic circumstances do              of a discriminatory nature, such a restriction, liable to hinder
     not mean that the Appellants are individually concerned            the exercise of these freedoms, must be justified by ‘imperative
     by the contested measure the Court of First Instance erred         requirements in the general interest’ and be necessary and
     as a matter of law:                                                appropriate for these requirements.
     i)    By failing to apply the principles laid down in the          The UK authorities have failed to demonstrate the imperative
           judgments of the Court of First Instance in Codorniu         requirements of general interest which are to be protected by
           v. Council and Extrament Industrie v. Council and            the rights attached to the Special share and by the 15 % equity
           subsequently applied by the Court of First Instance          limit and, thus, a fortiori, their proportionality, and it therefore
           and the Court of Justice and/or failing to distinguish       must be concluded that the restrictions on the free movement
           those cases adequately or at all.                            of capital and on establishment created thereby are in violation
                                                                        of the obligations of the Member State under Articles 43 and
     ii)   By failing to take account of the decision of the            56 of the Treaty.
           Court of First Instance in Case T-60/96, Merck and
           others.                                                      A breach of the Treaty may occur upon the introduction by a
                                                                        Member State of restrictions on establishment or capital
                                                                        movements, by whatever means. In relation to BAA the
(1) OJ C 226, 7.8.1999, p. 34.                                          measures introduced by mechanisms of company law were
                                                                        introduced by the State in its capacity as public authority and
                                                                        are clearly intended to remain thus since Article 10(1) of BAA’s
                                                                        Articles only allows the Special share to be transferred to ‘one
                                                                        of Her Majesty’s Secretaries of State, another Minister of the
                                                                        Crown or any other person acting on behalf of the Crown’.
                                                                        Consequently, and in order in particular to uphold the
                                                                        uniformity and supremacy of Community law, the adoption
                                                                        by a Member State of the mechanisms of private company law
                                                                        to introduce restrictions on Treaty freedoms can in no way
Action brought on 27 February 2001 by the Commission                    avoid the examination of the compatibility of such restrictions
of the European Communities against the United                          with the Treaty.
      Kingdom of Great Britain and Northern Ireland
                                                                        After such examination the Commission has reached the
                          (Case C-98/01)                                conclusion that the restrictions contained in Articles 10 and
                                                                        40 of the Articles of Association of BAA are incompatible
                                                                        with the provisions of Articles 43 and 56 of the Treaty on the
                         (2001/C 134/13)                                freedoms of establishment and capital movements.
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 27 February 2001 by the
Commission of the European Communities, represented by
Mr Frank Benyon and Ms Maria Patakia, acting as agents, with
an address for service in Luxembourg.
                                                                        Reference for a preliminary ruling made by the House of
                                                                        Lords by order of that court of 8 February 2001, in the
The Applicant claims that the Court should:                             case of 1) Consorzio del Prosciutto Di Parma 2) Salumi-
                                                                        ficio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hy-
a)   declare that the provisions setting a limitation on interests                            grade Foods Limited
     in voting shares in the BAA plc company (Article 40 of
     the Articles of Association), as well as the authorisation                                  (Case C-108/01)
     procedure on the disposal of assets of the company or
     control in subsidiaries and winding-up (Article 10 of the
     Articles of Association) are incompatible with Articles 43                                  (2001/C 134/14)
     and 56 of the EC Treaty;
                                                                        Reference has been made to the Court of Justice of the
b)   order the United Kingdom to pay the costs.                         European Communities by an order of the House of Lords, of