CELEX: C2003/264/55
Language: en
Date: 2003-11-01 00:00:00
Title: Case T-289/03: Action brought on 19 August 2003 by British United Provident Association Limited, BUPA Insurance Limited and BUPA Ireland Limited against Commission of the European Communities

C 264/32                EN                          Official Journal of the European Union                                          1.11.2003
The applicant further claims that the contested regulation                  Pleas in law and main arguments
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to the
nature of the applicable measure but it went further than that.             The applicant provides private medical insurance in Ireland. In
In addition the amount of the duty was set entirely arbitrarily.            the contested decision, the Commission decided not to raise
Regulation (EC) No 384/96 does not provide for the possibility              any objections to the risk equalisation scheme to be
of using the results of reviews that are over 12 years old. It              implemented by the Irish authorities in the Irish market for
does not allow the results of reviews that are older than five              private medical insurance. According to the applicant, the
years to be used.                                                           effect of this scheme is to grant a subsidy to the dominant
                                                                            provider of medical insurance, the Voluntary Health Insurance
                                                                            Board; the subsidy would be funded by a charge to be imposed
Finally no specific dumping margin was laid down in the final               on the applicant.
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.
                                                                            In support of its application, the applicant invokes, firstly, the
(1) OJ L 143, p. 1.
                                                                            misapplication by the Commission of Article 87(1) EC. The
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on                applicant submits that the Commission considered that the
    protection against dumped imports from countries not members            risk equalisation scheme did, in principle, satisfy the conditions
    of the European Community (OJ L 56, p. 1), most recently                for aid under Article 87(1) EC. However, it decided that the
    amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).               scheme compensated the Voluntary Health Insurance Board
                                                                            for public service obligations.
                                                                            According to the applicant, the Commission misapplied the
                                                                            public service compensation test as set out in the jurisprudence
                                                                            of the Court of Justice (1). The applicant states that the
                                                                            obligations identified by the Commission were the require-
                                                                            ments for private medical insurers in Ireland to follow the
Action brought on 19 August 2003 by British United
                                                                            principles of open enrolment, community rating, minimum
Provident Association Limited, BUPA Insurance Limited
                                                                            benefits and lifetime cover. These are, according to the
and BUPA Ireland Limited against Commission of the
                                                                            applicant, not to be considered as public service obligations or
                     European Communities
                                                                            obligations following the operation of services of general
                                                                            economic interest. These obligations would rather represent
                         (Case T-289/03)                                    general regulation of the private medical insurance market,
                                                                            applicable to all insurers. The applicant furthermore submits
                                                                            that the Commission did not consider whether these obli-
                         (2003/C 264/55)                                    gations imposed a financial burden on the Voluntary Health
                                                                            Insurance Board.
                    (Language of the case: English)
                                                                            The applicant states that the Commission’s alternative basis
                                                                            for the contested decision was that the risk equalisation scheme
                                                                            could be approved under Article 86(2) EC. The applicant
An action against the Commission of the European Communi-                   submits that the Commission failed to ensure that the con-
ties was brought before the Court of First Instance of the                  ditions for approval under that article were satisfied. According
European Communities on 19 August 2003 by British United                    to the applicant, the relevant private medical insurance obli-
Provident Association Limited, London, (United Kingdom) and                 gations were not services of general economic interest. The
BUPA Insurance Limited, London, (United Kingdom) and                        applicant furthermore submits that the Commission’s argu-
BUPA Ireland Limited , Dublin, (Ireland), all represented by                ments on necessity and proportionality were based on both
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer                  errors of reasoning and manifest errors of fact. The applicant
and Mr J. Burke, Barrister.                                                 also claims that the Commission did not consider whether the
                                                                            scheme would affect the development of trade contrary to the
                                                                            interests of the Community.
The applicant claims that the Court should:
—     annul the Commission decision C(2003)1322 fin of                      The applicant also submits that the Commission erred in
      13 May 2003;                                                          failing to consider whether the risk equalisation scheme
                                                                            infringed Article 82 EC taken together with Article 86(1) EC,
—     order that the Commission pays the applicant’s costs.                 Articles 43 and 49 EC and Council Directive 92/49/EEC (2).
 ---pagebreak--- 1.11.2003               EN                           Official Journal of the European Union                                       C 264/33
The applicant finally submits that the Commission should                     —     from the failure to examine an unknown number of
have initiated a formal investigation procedure under                              candidates in the language which they had declared to be
Article 88(2) EC given the complexity of the arguments in fact                     their ‘principal’ language;
and law raised by the applicant and the economic analysis
required.                                                                    —     from the failure to examine the applicant in the third
                                                                                   language declared by him, and also from the (in his
                                                                                   submission) different treatment of the candidates as
(1) Case C-53/00 Ferring [2001] ECR I-9067 and Case C-280/00                       regards examination of the third language and any further
    Altmark Trans GmbH and Regierungspräsidium Magdeburg, not                      languages known by them;
    yet published in the ECR.
(2) Council Directive 92/49/EEC of 18 June 1992 on the coordination
    of laws, regulations and administrative provisions relating to           —     from the appointment of further members of the selection
    direct insurance other than life assurance and amending Directives             board in addition to those initially appointed, after
    73/239/EEC and 88/357/EEC (third non-life insurance Directive)                 notification of the names of the candidates admitted to
    (OJ L 228, p. 1).                                                              the oral examination, from the fact that the selection
                                                                                   board included two members appointed by the Staff
                                                                                   Committee instead of one, and from the alteration in the
                                                                                   composition of the board when the oral examinations
                                                                                   were conducted.
Action brought on 18 August 2003 by Georgios Pantoulis
  against the Commission of the European Communities
                          (Case T-290/03)                                    Action brought on 20 August 2003 by Messe Berlin
                                                                             GmbH against the Office for Harmonisation in the
                                                                                      Internal Market (Trade Marks and Designs)
                          (2003/C 264/56)
                                                                                                       (Case T-292/03)
                     (Language of the case: Greek)
                                                                                                       (2003/C 264/57)
An action against the Commission of the European Communi-                                       (Language of the case: German)
ties was brought before the Court of First Instance of the
European Communities on 18 August 2003 by Georgios
Pantoulis, resident in Brussels (Belgium), represented by Kharis-
sios Tagaras, lawyer.                                                        An action against the Office for Harmonisation in the Internal
                                                                             Market (Trade Marks and Designs) was brought before the
                                                                             Court of First Instance of the European Communities on
The applicant claims that the Court should:                                  20 August 2003 by Messe Berlin GmbH, Berlin, represented
                                                                             by R. Lange and E. Schalast, lawyers.
—     annul the decision of the selection board for Competition
      COM/A/6/01 — section 02 not to include him on the list
      of successful candidates in that competition and the                   The applicant claims that the Court should:
      defendant’s reply of 10 June 2003 by which it rejected his
      complaint under no R/55/2003, lodged on 10 February                    —     annul the decision of the Second Board of Appeal of the
      2003, requesting revocation of the selection board;                          Office for Harmonisation in the Internal Market (Trade
                                                                                   Marks and Designs) of 5 June 2003 (Case No R 646/
—     order the defendant to pay his costs.                                        2001-2);
                                                                             —     order the defendant Office to pay the costs of the
                                                                                   proceedings.
Pleas in law and main arguments
In support of his action, the applicant pleads breaches of the               Pleas in law and main arguments
competition notice, of the principles and rules governing the
functioning of selection boards, of the principle of equal
treatment and of the Staff Regulations (Annex III). In his                   Community trade mark           The word mark ‘HOMETECH’ —
submission those breaches have arisen:                                       sought:                        application No 1985118