CELEX: C1995/189/35
Language: en
Date: 1995-07-22 00:00:00
Title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 12 May 1995 in Cases T-79/95 R and T-80/95 R, Société Nationale des Chemins de Fer Français and British Railways Board v. Commission of the European Communities

No C 189/16         HEN                    Official Journal of the European Communities                                   22 . 7. 95
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                  ORDER OF THE COURT OF FIRST INSTANCE
                          of 8 June 1995                                                       of 11 May 1995
in Case T-583/93 : P v. Commission of the European                    in Case T-5 69/93 ; Andrew Macrae Moat v. Commission of
                         Communities i 1 )                                            the European Communities C )
(Officials — Decision compulsorily reassigning the                                             (Inadmissibility)
applicant to a post entailing, in particular, loss of the                                        ( 95/C 189/34
allowance provided for by Article 56a of the Staff
  Regulations — Duty to provide a statement of reasons)                              (Language of the case: English)
                           ( 95/C 189/33 )
                                                                      In Case T-569/93 , Andrew Macrae Moat, official of the
                                                                      Commission of the European Communities, represented by
                                                                      Luc Govaert, of the Brussels Bar, with an address for service
                (Language of the case: French)                        in Luxembourg at the Chambers of Lucy Dupong, 14a Rue
                                                                      des Bains v. Commission of the European Communities
                                                                      ( Agent: Thomas F. Cusak ) — application for the annulment
In Case T-583/93 : P, an official of the Commission, residing         of various appointments and promotions which occurred
in Barasso ( Italy ), represented by Eric Boigelot, of the            before 1991 and for compensation for the harm allegedly
Brussels Bar, with an address for service in Luxembourg at            suffered by the applicant — the Court of First Instance
the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim v.            ( Fourth Chamber ), composed of: K. Lenaerts, President, R.
Commission of the European Communities (Agents : Ana                  Schintgen and R. Garci'a-Valdecasas, Judges; Registrar: H.
Maria Alves Vieira and Alberto Dal Ferro ) — application              Jung; made an order on 11 May 1995 the operative part of
                                                                      which is as follows :
for the annulment of a decision compulsorily reassigning the
applicant to a post and for compensation for the financial
loss which that decision would have caused — the Court of             1 , the application is dismissed as inadmissible;
First Instance ( Second Chamber), composed of B.
Vesterdorf, President, and D. P. M. Barrington and A.                 2 , the parties are to bear their own costs.
Saggio, Judges; J. Palacio Gonzalez, Administrator, for the
Registrar, has given a judgment on 8 June 1995 , in which             (') OJ No C 18 , 21 . 1 . 1994 .
it:
1 , annuls the decision contained in the memorandum sent
     to the applicant on 22 February 1 993 by Mr A;                                 ORDER OF THE PRESIDENT
                                                                               OF THE COURT OF FIRST INSTANCE
                                                                                               of 12 May 1995
                                                                      in Cases T-79/95 R and T-80/95 R, Société Nationale des
2 , orders the Commission to pay to the applicant the sum
                                                                      Chemins de Fer Français and British Railways Board v.
     of Lit 2 000 000 by way of damages for the loss of the
                                                                               Commission of the European Communities
     right to use a free transport facility;
                                                                                                 ( 95/C 189/35 )
                                                                              (Languages of the case: French and English)
3 , orders the Commission to pay to the applicant the sums
     which he would have received as shiftwork allowances             In Cases T-79/95 R and T-80/95 R, Société Nationale des
    from 1 March 1993 until the adoption of a decision                Chemins de Fer Français, whose registered office is in Paris,
     regularizing his position, together with default interest        represented by Barbara Rapp-Jung and Nathalie Flandin, of
     thereon at the annual rate of 8 % from 1 8 May 1 993 . In        the Brussels Bar, with an address for service in Luxembourg
     the event that the parties are unable to agree the amount        at the Chambers of Victor Elvinger, 31 Rue d'Eich, and
     of that loss within three months, they are to send to the        British Railways Board, whose registered office is in
     Court the figures they propose;                                  London, represented by Thomas Sharpe QC of the Bar of
                                                                      England and Wales, instructed by Alexandre Nourry,
                                                                      Solicitor, with an address for service in Luxembourg at the
                                                                      Chambers of Jean Hoss, 15 Côte d'Eich v. Commission of
4 , orders the Commission to pay its own costs.                       the European Communities (Agents : Francisco Gonzalez
                                                                      Diaz and Géraud de Bergues in Case T-79/95 R and Carmel
                                                                      O'Reilly, Francisco Gonzalez Diaz and Géraud de Bergues
(') OJ No C 43 , 12 . 2 . 1994 .                                      in Case T-80/95 R ) — applications for the suspension of
                                                                      operation of Article 2A of Commission Decision 94/894/EC
                                                                      of 13 December 1994 relating to a proceeding under
                                                                      Article 85 of the EC Treaty and Article 53 of the EEA
                                                                      Agreement ( IV/32.490 — Eurotunnel ) i 1 ) in so far as it
                                                                      attaches certain conditions to the exemption provided for in
 ---pagebreak---  22 . 7. 95            EN                     Official Journal of the European Communities                                  No C 189/17
Article 1 of the Decision — the President of the Court of                On 23 November 1994, after a protracted procedure, the
First Instance made an order on 12 May 1995 the operative                applicant, pursuant to Article 175 of the EC Treaty, called
part of which is as follows :                                            on the Commission to act, and to adopt a definitive position
                                                                         on the complaint as far as Article 85 was concerned . On
                                                                         15 February 1 995 , not having received any decision from
 1 , the applications for interim measures are dismissed;                the Commission, the applicant brought before the Court of
                                                                         First Instance an action pursuant to Article 175 of the Treaty
2,    the costs are reserved.                                            against the Commission for failure to act ( Case T-28/95 ).
                                                                         On 17 February 1 995 , the Commission adopted Decision
                                                                         SG(95 ) D/1790 rejecting, as regards Article 85 of the EC
 0 ) OJ No L 354 , 31 . 12 . 1994 .                                      Treaty, the complaint submitted by the applicant (the
                                                                         contested decision ).
                                                                         The applicant submits that the contested Decision must be
                                                                         annulled for the following reasons :
Action brought on 28 April 1995 by International Express
Carriers Conference (IECC ) against the Commission of the                — infringement of Article 85 ( 1 ) of the EC Treaty, in that
                    European Communities                                     the Commission exceeded its discretion, committing
                                                                             an error of law in not condemning a blatantly
                        ( Case T-110/95 )                                    anti-competitive agreement,
                          ( 95/C 189/36 )
                                                                         — infringement of Article 4 ( 1 ) of Regulation No 17/62 of
                (Language of the case: English)                              Article 85 ( 3 ) of the EC Treaty, in that the Commission
                                                                             granted a de facto exemption from the competition rules
An action against the Commission of the European                             even though it failed to comply with the conditions
Communities was brought before the Court of First                            relating to form and to substance set out in those
Instance of the European Communities on 28 April 1995 by                     provisions,
International Express Carriers Conference ( IECC ),
represented by Eric Morgan de Rivery and Jacques Derene,                 — breach of certain rules of law relating to the application
with an address for service in Luxembourg at the Chambers                    of the EC Treaty, in that the Commission committed
of Alex Schmitt, Bonn & Schmitt, 62 Avenue Guillaume,                        errors of law and manifest errors of appraisal of the facts
L-1650 Luxembourg.                                                           of the case in implementing the legal principles
                                                                             expounded by the Court of First Instance, inasmuch as,
The applicant claims that the Court should :                                 in the circumstances of this case, the Commission was
                                                                             not entitled to rely upon the Community interest in
— annul Commission Decision SG(95 ) D/1790 of                                order to reject the complaint, or, if it is entitled to do so,
     17 February 1995 ( Case No EV/32.791 — Remail ),                        it exercised that right incorrectly,
— order such further or other relief as the Court considers             — misuse of powers, in that the Commission's main
     appropriate in order for the Commission to comply with                  purpose in rejecting the complaint was in fact to attain
     Article 176 of the EC Treaty,                                           political objectives,
— order the Commission to pay the costs .
                                                                        — infringement of Article 190 of the EC Treaty, in that the
                                                                             Commission failed in its decision to give adequate
Pleas in law and main arguments adduced in support:                          reasons as to the alleged lack of Community interest in
                                                                             the adoption of a decision imposing a prohibition and as
The applicant, a professional organization composed of                       to the proposition that the positive effects of the Reims
certain important private express companies, filed with the                  agreement would be hampered by such a decision,
Commission, on 13 July 1988 , a complaint under
Article 3 ( 2 ) of Regulation No 17/62 concerning the
infringement ( i ) of Article 85 ( 1 ) of the EC Treaty by certain      — breach of certain general principles of Community law,
European public postal operators and ( ii ) of Article 86 of the             in that, in adopting the decision, the Commission
Treaty by two post offices which relied upon a market                        violated the principles of legal certainty and of the
allocation    scheme     set   out     in  the  Universal   Postal           protection of legitimate expectations, the principle of
Convention. The conduct in question of the post offices                      non-discrimination, the principle of proportionality and
named in the complaint was designed to suppress or restrain                  the principle of sound administration.
'remail' competition, a practice whereby a mailer prepares
international mail in one country but posts the mail not with
the post office of that country but with a post office located
in another country.