CELEX: C1999/281/52
Language: en
Date: 1999-10-02 00:00:00
Title: Case T-176/99: Action brought on 4 August 1999 by Colette Jemaa against the Council of the European Union

2.10.1999              EN                      Official Journal of the European Communities                                       C 281/27
The applicants claim that the Court should:                               In support of its claim, the applicant submits that the contested
                                                                          decision:
— annul the decisions taken by the selection board in
    competition No COM/A/10/98 excluding the applicants                   — infringes Article 253 EC, in so far as, in the circumstances
    from the tests subsequent to the pre-selection tests, the                 of the present case, it is not sufficient for the Commission
    said decisions being contained in letters sent to the                     merely to state that Article 82 EC does not prevent an
    applicants on 16 June 1999;                                               undertaking which has a monopoly from expanding into
                                                                              other areas. The applicant stresses that, to its knowledge,
— consequently, annul all of the steps taken and acts done                    the decision is the first one in which the Commission
    subsequently in the procedure relating to competition                     expresses its views on the question whether an undertaking
    No COM/A/10/98;                                                           enjoying an exclusive right to perform a service of general
— order the Commission to pay the costs.                                      interest can use the profits deriving from the reserved
                                                                              market to acquire control of an undertaking in a neigh-
                                                                              bouring liberalised country.
Pleas in law and main arguments                                           — ignores the fact that the use of profits deriving from an
                                                                              exclusive right which is granted solely in order to ensure
The pleas in law and main arguments are the same as in Case                   performance of a service of general economic interest
T-172/99 Pentericci v Commission (1).                                         would constitute an abuse of a dominant position, pro-
                                                                              hibited under Article 82 EC.
(1) Not yet published in the Official Journal.
                                                                          (1) OJ C 340, of 7.11.98, p. 25.
Action brought on 2 August 1999 by UPS Europe NV/SA
  against the Commission of the European Communities                      Action brought on 4 August 1999 by Colette Jemaa
                                                                                   against the Council of the European Union
                          (Case T-175/99)
                                                                                                   (Case T-176/99)
                         (1999/C 281/51)
                                                                                                  (1999/C 281/52)
                   (Language of the case: English)
                                                                                             (Language of the case: French)
An action against the Commission of the European Union was
brought before the Court of First Instance of the European                An action against the Council of the European Union was
Communities on 2 August 1999 by UPS Europe NV/SA,                         brought before the Court of First Instance of the European
represented by T.R. Ottervanger and D. Arts, with an address              Communities on 4 August 1999 by Colette Jemaa, residing
for service in Luxembourg at the Chambers of Loeff Claeys                 in Geneva (Switzerland), represented by Jean-Noël Louis,
Verbeke, 5 rue Charles Martel.                                            Greta-Françoise Parmentier and Véronique Peere, of the Brus-
                                                                          sels Bar, with an address for service in Luxembourg at the
                                                                          offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
The applicant claims that the Court should:
— annul the Commission’s decision of 10 June 1999 rejecting               The applicant claims that the Court should:
    the applicant’s complaint;
                                                                          — annul the decision rejecting the applicant’s request for
— order the Commission to pay the costs incurred by the                       authorisation to rent and occupy, from 1 April 1998, an
    applicant in the present proceedings;                                     apartment corresponding to the needs of her family at a
                                                                              monthly rent of CHF 4 800 plus service charges;
— take such further action as the Court may deem appro-
    priate.                                                               — order the defendant to pay an allowance corresponding to
                                                                              the amount of that rent plus service charges from 1 April
                                                                              1998 and interest at the annual rate of 6 % from the date
Pleas in law and main arguments                                               on which the rental payments in question fell due;
                                                                          — order the defendant in addition to pay, by way of
The applicant in the present case, which is also the applicant                compensation for the material damage suffered, the sum
in Case T-127/98 UPS Europe v Commission, (1) challenges the                  of CHF 100 216, plus the sum of 50 000 euro by way of
Commission’s decision rejecting its complaint, but only that                  compensation for the non-material damage suffered by the
part of it which concerns Article 82 EC and relates to the                    applicant and her family;
concentration by means of which Deutsche Post AG (DPAG)
intends to acquire control of DHL International Ltd.                      — order the defendant to pay the costs.
 ---pagebreak--- C 281/28                EN                    Official Journal of the European Communities                                        2.10.1999
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant in the present case, who is also the applicant in
Case T-20/98 Jemaa v Council (1), contests the decision of the
appointing authority rejecting her request that it bear the              The applicants, who have already made an application to the
expense of an apartment corresponding to the needs of her                Commission for review of its tacit or implied refusal to grant
family by reimbursing the amount of her monthly rent.                    access to certain minutes of the Advisory Committee on VAT
                                                                         (the VAT Committee) established by Article 29 of the Sixth
                                                                         VAT Directive (1), are now attacking the Commission’s express
The decision refusing her request is based on the grounds,               and definitive decision refusing ‘access to the minutes in
first, that the applicant was at the material time occupying             question’.
accommodation which was owned by her, and, second,
that she was not required, for reasons connected with the
performance of her duties, to move her place of residence
outside Geneva, where she had been sent.
                                                                         The applicants submit that the contested decision infringes
                                                                         the Code of Conduct attached to Commission Decision
In support of her claims, the applicant pleads infringement of           94/90/ECSC/EC/Euratom (Access Code) and/or Article 253 EC
Article 71 of the Staff Regulations and of Articles 5, 18 and            on the following grounds:
23 of Annex X to the Staff Regulations, together with failure
to comply with the duty to have regard for the welfare and
interests of officials. She maintains in that regard that none of        — The contested decision fails to indicate the means of
the aforementioned provisions makes reimbursement of the                      redress, and thus infringe a mandatory rule of law relating
actual cost of the renting of accommodation by an official                    to the application of the Treaty;
posted outside the Community conditional on a change of
residence for reasons connected with the performance of his
or her duties, or on the official concerned not being the owner          — The third paragraph of the contested decision, in which
of real property in the place of employment.                                  the refusal to allow access is expressed, is utterly devoid
                                                                              of reasons. Should, however, the contested decision be
                                                                              construed as meaning that the defendant refuses access to
(1) OJ C 94 of 28.3.1998, p. 35.                                              the minutes in question because the rule of confidentiality
                                                                              extends to the minutes of meetings, then the applicants
                                                                              submit that the contested decision is inadequately
                                                                              reasoned;
                                                                         — The contested decision does not contain any particular
                                                                              reasons for which the minutes in question fall under a
                                                                              relevant head of exception to the general right to and
Action brought on 6 August 1999 by Sonia Marion Elder                         principle of the fullest possible public access to documents.
and Robert Dale Elder against the Commission of the
                     European Communities
                          (Case T-178/99)                                For the sake of completeness, the applicants submit that
                                                                         where consultation of statutory committee (such as the VAT
                                                                         Committee or a ‘comitology’ committee) is, as here, an
                         (1999/C 281/53)                                 essential procedural requirement, the non-observance of which
                                                                         leads to the annulment of a legislative act, there can never be
                                                                         any justification for refusing to produce proof of such
                   (Language of the case: English)                       consultation, in the form of a probative contemporaneous
                                                                         report (such as minutes), since in the absence of proof the
                                                                         legislative act in question must be declared void. That being
An action against the Commission of the European Communi-
                                                                         so, not only is the contested decision manifestly invalid, but
ties was brought before the Court of First Instance of the
                                                                         the very validity of the UK legislation in question would be
European Communities on 6 August 1999 by Sonia Marion
                                                                         endangered if the defendant were to persist in its refusal to
Elder and Robert Dale Elder, represented by Scott Crosby, of
                                                                         grant access to the minutes as requested by the applicants.
Kemmler Rapp Böhlke & Crosby, 9 Rond-Point Schuman,
Brussels.
The applicants claim that the Court should:
                                                                         (1) Case T-78/99 (Elder and Elder v Commission), OJ C 174 of 19 June
— annul the decision of the defendant dated 8 June 1999                      1999, p. 11.
     refusing access to the minutes of the VAT Committee as
     specified in the application for review dated 6 January
     1999;
— order the defendant to pay the applicants’ costs pursuant
     to Article 87 of the Rules of Procedure of the Court of First
     Instance.