CELEX: C1998/340/51
Language: en
Date: 1998-11-07 00:00:00
Title: Action brought on 10 September 1998 by SA Image Création against Commission of the European Communities (Case T-142/98)

C 340/26              EN                 Official Journal of the European Communities                                   7.11.98
claim, first, that the Council failed to consult the                for service in Luxembourg at Fiduciaire Myson SARL, 30
European Parliament for a second time on the                        rue de Cessange.
modifications made by the Council to the Commission's
proposal for a regulation dated 8 April 1994 and that the           The applicant claims that the Court should:
European Community has no jurisdiction to legislate in
the North-East Atlantic.                                            Ð annul the decision of 29 October 1997 of the Brussels
                                                                        office responsible for settling claims refusing prior
Second, the contested regulation is contrary to the aims of             authorisation for reimbursement of subsistence
the common fisheries policy and the regulations                         expenses in connection with treatment at the Quiberon
implementing it.                                                        thalassotherapy centre;
                                                                    Ð order the defendant to pay the costs.
Third, the contested regulation should be annulled in so
far as it infringes the following higher principles of law:
                                                                    Pleas in law and main arguments adduced in support:
Ð the right to freedom to carry on a commercial activity            By the contested decision a request for prior authorisation
    in so far as the prohibition set out in the regulation at       to undergo treatment at a spa from 25 October to
    issue prevents the applicants from carrying on their            3 November 1997 was refused on the ground that the
    activity of fishing for white tuna using drift-nets;            treatment centre chosen did not provide treatment for the
                                                                    medical condition in question.
Ð the principle of proportionality set out in Article 3b of
    the Treaty, in view of the disproportionate and                 The applicant submits that this decision is vitiated by an
    manifestly inappropriate nature of the contested                abuse of rights and breaches the fundamental principle of
    measure in the light of the aim pursued, namely the             freedom to choose a doctor and place of treatment. The
    conservation of fishing resources;                              defendant cannot refuse on the basis of exclusively
                                                                    budgetary considerations to recognise the quality of the
                                                                    treatment given in a medical establishment.
Ð the principle of non-discrimination set out in
    Article 40(3) of the Treaty, in so far as the provisions
    of the new Articles 11, 11a, 11b and 11c of Council             Moreover, the decision is vitiated by a manifest error of
    Regulation (EC) No 894/97 do not apply to fishing in            assessment since the treatment centre chosen is recognised,
    the Baltic Sea, the Belts and the éresund, nor to               both by the competent national authorities and by doctors
    salmon fishing using drift-nets.                                specialising in the field of the particular complaint from
                                                                    which the applicant suffers, as competent to provide the
                                                                    appropriate treatment.
Finally, the applicants submit that the contested regulation
is vitiated by manifest error and is of an arbitrary nature         Finally, the defendant has failed to fulfil the legitimate
in so far as it was not adopted in order to ensure a                expectation the applicant was entitled to have as a result
rational and responsible use of available fishing resources,        of the information provided by the department responsible
but responds to the pressure from certain Member States             and has disregarded the obligation to provide the
and international public opinion to prohibit certain                applicant with a relevant statement of reasons establishing
Member States from fishing for certain species, in the              a cogent link between the findings of its medical officer
present case tuna and sword fish, using drift-nets and by a         and the conclusion it reached.
misuse of powers, in so far as it was adopted with the aim
of putting an end to Community controls on compliance
with the rules.
                                                                    Action brought on 10 September 1998 by SA Image
                                                                    CreÂation against Commission of the European
                                                                                             Communities
Action brought on 7 September 1998 by H' against the                                     (Case T-142/98)
         Commission of the European Communities
                                                                                            (98/C 340/51)
                        (Case T-140/98)
                         (98/C 340/50)                                             (Language of the case: French)
                                                                    An action against the Commission of the European
                (Language of the case: French)
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 10 September
An action against the Commission of the European                    1998 by SA Image CreÂation, established in Brussels,
Communities was brought before the Court of First                   represented by Georges Vandersanden, Eric Gillet and
Instance of the European Communities on 7 September                 Laure Levi, of the Brussels Bar, with an address for service
1998 by H', represented by Jean-NoeÈl Louis and                    in Luxembourg at the premises of Fiduciaire Myson
FrancËoise Parmentier, of the Brussels Bar, with an address         SARL, 30 rue de Cessange.
 ---pagebreak--- 7.11.98               EN                Official Journal of the European Communities                                   C 340/27
The applicant claims that the Court should:                        Finally, the applicant points out that the purpose for
                                                                   which the Community funding was granted was actually
                                                                   achieved in the stipulated budgetary context and,
Ð annul the decision adopted by the European                       consequently, the defendant's interest cannot be affected
     Commission on 10 June 1998, sent by registered post           by the maintenance of the payments made at the time. It
     on 7 July 1998 and received by the applicant on 9 July        concludes that the annulment of those payments, by the
     1998, demanding repayment of the sum of ECU                   unforeseeable decision to demand repayment of certain
     135 548 and, in so far as is necessary, annul the             sums more than five years after the conclusion of the
     measures implementing that decision;                          project, was made with blatant disregard for the principle
                                                                   of proportionality.
Ð order the defendant to pay all the costs.
Pleas in law and main arguments adduced in support:
The applicant states that in 1990, in the context of the           Action brought on 11 September 1998 by Michael
action programme for the European Year of Tourism                  Cendrowicz against the Commission of the European
(EYT), the Commission granted it a Community financial                                      Communities
contribution towards its project Europuzzle Ð pays de
                                                                                          (Case T-143/98)
l'Est'. A first instalment of 80 % of the contribution was
paid in 1991, and the balance of 20 % was paid on                                          (98/C 340/52)
13 March 1992, following the report submitted to the
Commission by the applicant on the use of the financial
                                                                                   (Language of the case: French)
contribution in question.
                                                                   An action against the Commission of the European
The applicant points out that, since the payment of the            Communities was brought before the Court of First
balance, no observations concerning the regularity of the          Instance of the European Communities on 11 September
payments in respect of the project have been made to it by         1998 by Michael Cendrowicz, residing in Brussels,
the Commission. In July 1998, however, it received a letter        represented by Lucas Vogel, of the Brussels Bar, with an
from the Commission demanding repayment of part of the             address for service at the offices of Fiduciaire Myson
Community subsidy, the contested decision in the present           SARL, 30 rue de Cessange.
case.
                                                                   The applicant claims that the Court should:
The applicant submits that the contested decision was
adopted in breach of the rights of the defence, in so far as,
since it was never informed of the allegations made by the         Ð annul the undated decision of the Commission
European Commission in respect of the regularity of the                 rejecting the application made by the applicant for
payment of the financial aid received by it, it was not                 post COM/98/97 (Head of Unit 1 Ð India, Nepal,
possible for it usefully to submit its comments on that                 Bhutan, Sri Lanka, in Directorate C of Directorate-
matter.                                                                 General IB), receipt of which was acknowledged by
                                                                        him on 16 September 1997;
The applicant maintains, furthermore, that the contested
decision breaches the principles of legal certainty and the        Ð annul the Commission's decision of 9 August 1997
protection of legitimate expectations. It points out that,              appointing another person to that post;
pursuant to the decision granting the financial
contribution and the statement by the recipient of a               Ð order the Commission to pay to the applicant, by way
financial contribution, it undertook to keep supporting                 of compensation for the non-material damage suffered
documents for the purposes of checks for five years. After              by him as a result of the illegality of the contested
that five year period, which began at the latest when the               decisions, the sum of BFR 100 000, subject to increase
project was concluded (that is to say when the balance                  or decrease during the course of the proceedings;
was paid), it was no longer required to keep the
supporting documents and the Commission therefore no
longer had the right to carry out checks. In so far as those       Ð order the Commission to pay the costs.
checks constitute the basis for a possible challenge to the
sum or a part of the sum allocated, that means that at the         Pleas in law and main arguments adduced in support:
end of those five years, on 12 March 1997, the defendant
could no longer demand repayment and the applicant
could rely on the apparent legality of the payments and            The applicant, a grade A 4 official, contests the rejection
claim to be entitled to keep them.                                 of his application for the post described above. He states
                                                                   in that regard that virtually all his career has been spent in
                                                                   the performance of duties relating to Asian countries and
The applicant also considers that the contested decision is        that he was the acting Head of Unit IB/C/1 following the
vitiated by an error of reasoning, in so far as the criticisms     retirement of the Head of Unit, his hierarchical superior,
on which it is based have no factual basis.                        who was a grade A 3 official at that time.