CELEX: C2000/247/56
Language: en
Date: 2000-08-26 00:00:00
Title: Case T-157/00: Action brought on 8 June 2000 by Nicole Robert against the European Parliament

26.8.2000              EN                    Official Journal of the European Communities                                        C 247/31
The applicant claims that the Court should:                             The applicant claims that the Court should:
—     order the Council of the European Union and the                   —     declare that the Commission has improperly failed to act,
      Commission of the European Communities to pay to the                    inasmuch as it has unlawfully omitted to take a decision
      applicant, pursuant to Article 288 of the EC Treaty, the                on the complaint made pursuant to Article 3 of Regu-
      sum of 762 245 euro in respect of the damage suffered,                  lation No 17/62; and
      subject to the making up of the sum due to the full
      amount;                                                           —     order the defendant to pay the costs.
—     order the Council of the European Union and the
      Commission of the European Communities to pay the                 Pleas in law and main arguments
      costs.
                                                                        The applicant in the present case, whose principal activity is
Pleas in law and main arguments                                         the parallel exportation of medicinal products, objects to the
                                                                        Commission’s failure to respond to the complaint submitted
                                                                        by it regarding the Merck group. That complaint concerned
The applicant company, an undertaking specialising in the               the strategy developed by the latter to combat the parallel
development and manufacture of effervescent cosmetic prod-              market in medicinal products, which took the form of such
ucts for the bath which exports a significant proportion of its         measures as:
production to the United States, is claiming compensation for
the damage suffered as a result of the retaliatory measures             —     the repeated and systematic refusal, on the strength of its
applied by the American authorities to a series of Community                  dominant position, to supply the applicant with three of
products, including bath preparations other than bath salts, in               its special pharmaceutical products;
the context of the dispute concerning the European system for
the importation of bananas. It maintains that the damage                —     the conclusion of concerted agreements with its licensees
which it has suffered is a direct consequence of:                             and certain wholesalers containing an absolute prohib-
                                                                              ition on the exportation of the products referred to above;
—     the adoption and retention by the Council and by
      the Commission of the Community system for the                    —     the establishment of a system of market quotas.
      importation of fresh bananas in breach of the rules laid
      down by GATT and the WTO; and of
                                                                        The complaint was submitted on 15 December 1997, but no
—     the fact that those two institutions omitted to take              decision has been taken on it to date. According to the
      into account the situation of undertakings subjected to           applicant, that inactivity, of over two years’ duration, is placing
      sanctions, which was bound to result from the approach            it in a situation of serious defencelessness. The applicant also
      adopted by them, in violation of the Community prin-              maintains, moreover, that the relevant case-law must be
      ciples of equality and non-discrimination, the protection         understood as imposing on the Commission the obligation to
      of legitimate expectations, freedom to pursue a pro-              examine the facts and legal aspects brought to its attention
      fessional activity and proportionality.                           and to communicate to the party concerned its assessment
                                                                        thereof.
Action brought on 6 June 2000 by Spain Pharma S.A.
  against the Commission of the European Communities                    Action brought on 8 June 2000 by Nicole Robert against
                                                                                            the European Parliament
                         (Case T-153/00)
                                                                                                 (Case T-157/00)
                         (2000/C 247/55)
                                                                                                 (2000/C 247/56)
                  (Language of the case: Spanish)
                                                                                           (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              An action against the Court of Auditors was brought before
European Communities on 6 June 2000 by Spain Pharma                     the Court of First Instance of the European Communities on
S.A., established in Madrid, represented by Ricardo Gutiérrez           8 June 2000 by Nicole Robert, residing at Strassen (Luxem-
Sánchez, lawyer.                                                       bourg), represented by Alain Lorang, of the Luxembourg Bar.
 ---pagebreak--- C 247/32                EN                      Official Journal of the European Communities                                      26.8.2000
The applicant claims that the Court should:                                European Communities on 13 June 2000 by the Arbeitsge-
                                                                           meinschaft der öffentlich-rechtlichen Rundfunkanstalten der
—     declare that the European Parliament has adopted a                   Bundesrepublik Deutschland (ARD), of Cologne (Federal
      decision contrary to Articles 4 and 5, the second para-              Republic of Germany), consisting of Bayerische Rundfunk,
      graph of Article 7, Articles 9 and 45 and Annex I to the             Hessischer Rundfunk, Mitteldeutscher Rundfunk, Nord-
      Staff Regulations of Officials;                                      deutscher Rundfunk, Ostdeutscher Rundfunk Brandenburg,
                                                                           Radio Bremen, Saarländischer Rundfunk, Sender Freies Berlin,
—     annul the decisions adopted on 26 November 1999                      Südwestrundfunk and Westdeutscher Rundfunk, represented
      by the Director-General for Personnel concerning the                 by Peter Mailänder and Andreas Bartosch, of Haver & Mailänd-
      promotion of certain officials to grades B2 and B1,                  er, Stuttgart (Federal Republic of Germany).
      inasmuch as those decisions were made without the
      announcement or publication of notices of vacancy
                                                                           The applicants claim that the Court should:
      relating to posts corresponding to the standard post of
      principal administrative assistant, and on the basis of an           —     annul the Commission’s decision of 21 March 2000 in
      incorrect examination of the comparative merits of the                     case COMP/JV.37, by which, pursuant to Article 6(1)(b)
      officials concerned;                                                       of Council Regulation (EEC) No 4064/89 on the control
—     annul the decision of 10 March 2000 by which the                           of concentrations between undertakings (‘the Merger
                                                                                 Regulation’), it declared the proposed concentration of
      Secretary-General rejected the applicant’s complaint of
      29 February 2000;                                                          BSkyB and KirchPayTV to be compatible with the com-
                                                                                 mon market;
—     order the defendant to pay the costs.
                                                                           —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                           Pleas in law and principal arguments
The applicant was not included amongst the officials promoted
by decision of the Director-General for Personnel dated                    By the contested decision, the Commission decided to raise no
26 November 1999, allegedly on account of the method used                  objections to a proposed concentration in the course of which
in applying the promotion system recently introduced in the                the British Sky Broadcasting Group plc (‘BSkyB’) intends to
Parliament.                                                                acquire 24 % of the shares in KirchPayTV GmbH & Co. KGaA
                                                                           (‘KirchPayTV’).
She seeks annulment of the decision concerning the number
of points awarded to her for promotion purposes, together                  The applicant contests that decision and advances, in essence,
with annulment of the decisions promoting other officials,                 the following pleas:
which were adopted on the basis of an incorrect examination
of their comparative merits.                                               —     The Commission correctly observes in the contested
                                                                                 decision that KirchPayTV would not be able, without the
The applicant asserts that the promotion system in force in                      additional financial resources of BSkyB, to make the
the Parliament is unlawful, and pleads in that connection:                       investment needed in terms of content and technical
                                                                                 infrastructure in order to maintain its present market
—     the illegality, in the light of Articles 4 and 5 and Annex I               position. It commits an error of law, however, in
      to the Staff Regulations, of the separation of grades from                 stating that there exists no potential competition between
      functions;                                                                 KirchPayTV and BSkyB in the German market by refer-
                                                                                 ence to the current competitive strength of KirchPayTV
—     infringement of Article 45 of the Staff Regulations.                       which might impede the entry into the market of
                                                                                 another operator. In so stating, the Commission has
                                                                                 misunderstood the criterion to be applied in accordance
                                                                                 with Article 2(3) of the Merger Regulation. It has failed to
                                                                                 have sufficient regard to the possibility, postulated by the
                                                                                 Commission itself, of future changes in the situation as
                                                                                 regards dominance of the market.
Action brought on 13 June 2000 by the Arbeitsgemein-
schaft der öffentlich-rechtlichen Rundfunkanstalten der                    —     Although the Commission may accept commitments
Bundesrepublik Deutschland (ARD) against the Com-                                inter alia in the context of the initial examination of
            mission of the European Communities                                  concentrations under Article 6(2) of the Merger Regu-
                                                                                 lation, such commitments must be restricted to clearly
                          (Case T-158/00)                                        defined and easily resolvable competition problems.
                                                                                 In the present case, the Commission disregarded that
                          (2000/C 247/57)                                        requirement.
                                                                           —     The commitments accepted by the Commission do not
                   (Language of the case: German)                                meet the requirements relating to the application of
                                                                                 European merger controls in the light of the structure of
An action against the Commission of the European Communi-                        the market. The commitments result in an on-going
ties was brought before the Court of First Instance of the                       monitoring of conduct, as prescribed in the context of