CELEX: C2002/247/24
Language: en
Date: 2002-10-12 00:00:00
Title: Case T-217/02: Action brought on 22 July 2002 by Ter Lembeek International N.V. against the Commission of the European Communities

12.10.2002                EN                       Official Journal of the European Communities                                      C 247/15
—      infringement of the principle of legality of administrative            Pleas in law and main arguments
       action and of the first subparagraph of Article 4(1) of
       Regulation No 1073/1999 of the European Parliament
       and of the Council ( 3), in that the investigations of the
       European Anti-Fraud Office were opened or reopened on                  The applicant was involved as a shareholder in three companies
       the basis of information obtained in breach of the secrecy             under the name Verlipack. When it became a shareholder in
       of the proceedings of the Disciplinary Board which is to               those companies it assumed responsibility for repurchasing a
       be observed under the second paragraph of Article 6 of                 specified number of shares from the public authorities. In
       Annex II to the Staff Regulations, in conjunction with a               1991 the authorities concerned insisted on compliance with
       breach of the obligation of discretion laid down for                   this obligation of repurchase and the applicant accordingly
       officials by the second paragraph of Article 17 of the                 found itself obliged to buy back the shares. Repurchase was
       Staff Regulations and for members of the Commission by                 spread over several years.
       Article 287 of the EC Treaty.
                                                                              In 1996 the Regional Authority for Wallonia pressed for
( 1) Decision of 2 June 1999 concerning the terms and conditions for          accelerated repurchase of those shares by the applicant. The
     internal investigations in relation to the prevention of fraud,          latter thereupon took over the shares from the Regional
     corruption and any illegal activity detrimental to the Communities’      Authority for Wallonia, which thereby obtained an outstand-
     interests (OJ 1999 L 149, p. 57).                                        ing claim against the applicant. According to the applicant,
( 2) That case was brought to a close by an order of removal from the         the purchase had no economic significance for it and the
     register of 3 July 2000 (OJ 2000 C 259, p. 31).                          shares were of no value to it. The shares, however, had to be
( 3) Regulation of 25 May 1999 concerning investigations conducted            bought for a fixed price. The applicant also derived no
     by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).
                                                                              advantage whatever from the shares as they were shortly
                                                                              afterwards brought into a separate company over which the
                                                                              applicant had no control.
                                                                              In 1998 the Regional Authority for Wallonia reached agree-
                                                                              ment with the applicant that it would transfer its shares in
                                                                              Verlipack Holding II to that Authority. In exchange, the claim
                                                                              which that Authority held against the applicant would lapse.
Action brought on 22 July 2002 by Ter Lembeek Inter-
national N.V. against the Commission of the European
                              Communities
                                                                              The decision under challenge treats this latter agreement as
                                                                              constituting State aid and as being incompatible with the
                                                                              Common Market. That decision states that the shares given in
                            (Case T-217/02)
                                                                              payment were at that moment in fact worthless. The Regional
                                                                              Authority for Wallonia thus permitted its claim against the
                                                                              applicant to lapse without receiving any consideration. The
                            (2002/C 247/24)
                                                                              decision accordingly also takes the view that the applicant
                                                                              obtained free of cost the shares which it was required to
                                                                              purchase from the Regional Authority for Wallonia in 1996.
                       (Language of the case: Dutch)
                                                                              According to the applicant, the decision under challenge
                                                                              breaches Article 87(1) EC and Articles 7 and 13 of Regulation
An action against the Commission of the European Communi-                     No 659/1999. (1) It argues that no benefit was obtained. In its
ties was brought before the Court of First Instance of the                    view, the economic value of the shares when they were
European Communities on 22 July 2002 by Ter Lembeek                           repurchased in 1996 was nil, or even negative, and it also
International N.V., having its registered office in Wielsbeke                 derived no advantage from those shares. Moreover, according
(Belgium), represented by Jean-Pierre Vande Maele, Frank                      to the applicant, it was not the beneficiary of any aid measure,
Wijckmans and Filip Tuytschaever.                                             as it held the shares only for a very short period of time. It
                                                                              goes on to submit that there was no distortion of competition.
                                                                              According to the decision under challenge, competition was
                                                                              distorted within the textiles sector, whereas the alleged aid
The applicant claims that the Court should:                                   measure was granted within the glass sector.
1.     Annul Articles 1 and 2 of the Commission decision of
       24 April 2002 concerning State aid granted by Belgium
                                                                              The applicant pleads, second, an infringement of the pro-
       to the Beaulieu Group (Ter Lembeek International);
                                                                              portionality principle and Article 14 of Regulation No 659/
                                                                              1999. In its opinion, the requested repayment of the aid bears
2.     Order the defendant to pay the costs.                                  no relation to the advantage allegedly enjoyed.
 ---pagebreak--- C 247/16                EN                      Official Journal of the European Communities                                   12.10.2002
The applicant further claims that there has been an infringe-              Pleas in law and main arguments
ment of the principle of equal treatment and argues that two
separate valuation methods are applied in the decision under
challenge. For the valuation of the shares which it was forced             The applicant, a grade A 3 official working in the External
to purchase, the decision applies a nominal price, which,                  Relations Directorate-General, is contesting the rejection by
however, according to the applicant, was much higher than                  the appointing authority of her application for the post of
the true value of the shares. For the valuation of the shares              director of Directorate B (Multilateral relations and human
which the applicant transferred to the Regional Authority for              rights).
Wallonia by way of payment, however, the decision applies
the real value of the shares, which at that time was considered
to be zero.                                                                In support of her claims, the applicant pleads:
                                                                           —     infringement of Articles 7, 27, 29(1)(a) and 45 of the
In conclusion, the applicant argues that there has been an
infringement of the principle that reasons must be given.                        Staff Regulations, breach of the principle that officials
                                                                                 should have reasonable career prospects and of the
                                                                                 principle of non-discrimination, and non-compliance
                                                                                 with the terms of the vacancy notice. She considers in
( 1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                                 that regard that, by omitting to carry out an examination
     down detailed rules for the application of Article 93 of the EC
     Treaty (OJ 1999 L 83 of 27.3.1999, pp 1 to 9).                              of the comparative merits of the candidates, the appoint-
                                                                                 ing authority ultimately took into consideration an
                                                                                 application for the post which manifestly failed to fulfil
                                                                                 the conditions laid down by the vacancy notice;
                                                                           —     non-compliance with the obligation to provide a state-
                                                                                 ment of reasons.
Action brought on 18 July 2002 by Daniela Napoli
Buzzanca against the Commission of the European Com-
                              munities
                          (Case T-218/02)
                                                                           Action brought on 22 July 2002 by Antonio Silva against
                         (2002/C 247/25)                                            Commission of the European Communities
                    (Language of the case: French)                                                    (Case T-220/02)
                                                                                                      (2002/C 247/26)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                     (Language of the case: French)
European Communities on 18 July 2002 by Daniela Napoli
Buzzanca, residing in Brussels, represented by Georges Vander-
sanden and Laure Levi, lawyers.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
The applicant claims that the Court should:                                European Communities on 22 July 2002 by Antonio Silva,
                                                                           residing in Brussels, represented by Albert Coolen, Jean-Noël
—      annul the decisions of the appointing authority, probably           Louis and Etienne Marchal, lawyers.
       adopted on 30 January 2002, appointing Ms S. as
       director, in grade A 2, of Directorate B (Multilateral
       relations and human rights) of the External Relations               The applicant claims that the Court should:
       Directorate-General (RELEX) and rejecting the application
       of the applicant for that post;                                     —     annul the decision of the Commission not to promote
                                                                                 the applicant to Grade A 4 in the 2001 promotions
—      order the defendant to pay damages assessed, as at the                    procedure, as evidenced by the publication in Adminis-
       date of the action and subject to possible increase, in the               trative Information No 72/2001 of 14 August 2001 of
       sum of 23 213,96 euros;                                                   the list of officials promoted to that grade;
—      order the defendant to pay all the costs.                           —     order the defendant to pay the costs.