CELEX: C1996/318/36
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 30 August 1996 by M. Boessen against the Economic and Social Committee (Case T-133/96)

26 . 10 . 96            EN                 Official Journal of the European Communities                                 No C 318/ 19
  Action brought on 22 August 1996 by RWE Energie                       The dispute concerns the question whether the Commission
  Aktiengesellschaft against the Commission of the European             can refuse to deal with an application submitted to it for
                             Communities                                negative clearance, alternatively for exemption under
                            Case T-131 /96 )                            Article 85 ( 3 ) of the EC Treaty, where a national
                                                                        competition authority has initiated its own parallel
                            ( 96/C 318 /35 )
                                                                        procedure and an appeal against its decision is pending
                                                                        before the national courts .
                  (Language of the case: German)
                                                                        The applicant considers that the defendant has acted
                                                                        unlawfully in refusing to deal with its application for
  An action against the Commission of the European
. Communities was brought before the Court of First                     negative clearance . According to Article 9 ( 1 ) of Regulation
                                                                        No 17, the Commission has sole power to declare Article 85
  Instance of the European Communities on 22 August 1996
                                                                        ( 1 ) of the EC Treaty inapplicable pursuant to Article 85 (3 ) .
  by RWE Energie Aktiengesellschaft, Essen ( Federal
                                                                        Consequently, it enjoys an 'exemption monopoly'. It is
  Republic of Germany ), represented by Dr Gerhard
  Wiedemann and Dr Jens Fleischhauer, Rechtsanwalte ,
                                                                        generally thought to follow from that monopoly that the
                                                                        Commission is obliged to examine and determine
  Diisseldorf, with an address for service in Luxembourg at
  the Chambers of Luc Frieden, of Messrs Bonn & Schmitt, 62
                                                                        applications for exemption . There is thus no scope for any
  avenue Guillaume .                                                    decentralized application of Article 85 . Furthermore, the
                                                                        power of the Bundeskartellamt to apply Article 85 ( 1 ) of the
                                                                        EC Treaty does not relieve the Commission of its task of
  The applicant claims that the Court should :                          examining, with reference to Article 85 ( 1 ) and ( 3 ), the
                                                                        electric power concession agreement which was properly
  — declare that, by refusing to deal with the applicant's              notified to it .
        application of 26 October 1995 for negative clearance
        pursuant to Article 2 of Council Regulation No 17,              The applicant further states that it is incumbent on the
        alternatively for exemption pursuant to Article 85 ( 3 ) of     Commission to develop, and then apply, its own
        the EC Treaty, in relation to the electric power                competition policy . The assignment of that task to a
        concession agreement concluded between the applicant            national cartel authority is not consistent with the system of
        and the City of Nordhorn on 20 and 21 April 1 995 ( Case        attribution of competence provided for by EC competition
        IV/E-3/35.800 ), the defendant has infringed the EC             law .
        Treaty,
                                                                        Moreover, the defendant's inaction creates the risk that,
        alternatively :                                                 following the conclusion of the national proceedings, the
                                                                        Bundeskartellamt may impose administrative penalties on
        in so far as the defendant's communication of 18 June           the applicant pursuant to German competition law . If the
        1996 , which was served on the applicant's                      Bundeskartellamt's prohibition order were to be judicially
        representatives on 25 June 1996 , falls to be assessed as a     upheld , the applicant would be legally prevented from
        decision, annul that decision , thereby obliging the            performing the power concession agreement notified by it,
        defendant to process and determine the applicant's              notwithstanding the possible eligibility of that contract for
        application of 26 October 1995 ,                                exemption . Thus , pending adoption of the Commission 's
                                                                        formal decision, the applicant would be subject to an
  — order the defendant to pay the costs .                              administrative prohibition precluding performance of the
                                                                        contract, for which no provision is made under the EC
                                                                        competition rules relating to notified agreements .
  Pleas in law and main arguments adduced in support
  The applicant formally notified the Commission of an
  exclusive contract concluded by it with the City of
  Nordhorn ( concerning the use of rights of way for the
  provision of electric power ). The German Bundeskartellamt
  ( Federal Cartel Office ) subsequently prohibited the                 Action brought on 30 August 1996 by M. Boessen against
                                                                                      the Economic and Social Committee
  implementation of certain provisions of that contract
  pursuant to Article 85 ( 1 ) in conjunction with paragraph 47                                 ( Case T-133/96 )
  of the GWB ( Gesetz gegen Wettbewerbsbeschrankungen —                                           ( 96/C 318/36 )
  law against restrictions on competition ). That decision was
  prefaced by communication from the defendant informing
  the Bundeskartellamt that, ' for the time being', it did not                           (Language of the case: Dutch)
  intend 'to initiate a procedure under Article 9 ( 2 ) of Council
  Regulation No 17, with the legal consequences flowing                 An action against the Economic and Social Committee was
  from Article 9 ( 3 ) of Regulation No 17'. In the                     brought before the Court of First Instance of the European
  Commission 's view, 'the system of decentralized application          Communities on 30 August 1996 by M. Boessen, residing at
  of the EC competition rules ' enabled it to 'refrain ' from           Lanaken ( Belgium ), represented by C. M. E. M. Paulussen,
  dealing with an application for exemption under Article 85            of the Maastricht ( Netherlands ) Bar, with an address for
  ( 3 ) of the EC Treaty for as long as the 'pending national           service in Luxembourg at the Chambers of M. Loesch, 11
  procedure has not arrived at a definitive result'.                    rue Goethe .
 ---pagebreak--- No C 318/20            EN                   Official Journal of the European Communities                                  26 . 10 . 96
The applicant claims that the Court should:                            The applicant claims that the Court should :
— annul the two decisions of the Secretary-General of the              — annul the Commission's decision of 7 August 1995 ,
    Economic and Social Committee by implication                           fixing the applicant's travelling time at two days, and
    rejecting the applicant's two complaints of 4 February                 also any subsequent similar decision,
    1996 , in particular on the grounds: 1 . that the Economic
    and    Social  Committee       should    have   awarded    the
    applicant the education allowances for his children, Y. ,          — in so far as is necessary, annul the decision adopted by
    M. and L. , for the 1995/ 1996 scholastic year, amounting              the Commission on 17 April 1996 expressly rejecting the
    to a total of Bfrs 1 9 080 , as applied for in the application         applicant's complaint,
    made in that regard dated 31 August 1995 and, further,
    2 . that the Economic and Social Committee should have
                                                                       — declare the Commission's internal directive adopted on
    altered the date from which the allowance was to be paid               21 December 1994 and published in the Administrative
    in respect of M. from 1 September 1995 to 1 August                     Notices on 4 January 1995 illegal and, in consequence,
    1995 ,                                                                 order it to be withdrawn,
— order the Economic and Social Committee to pay the
    costs, including the costs which the applicant has had to          — allow the applicant travelling time of eight and a half
    incur in connection with these proceedings, in particular              days for 1995 and also for subsequent years or at least
    the costs of providing an address for service, travelling              travelling time calculated on the basis of Administrative
    and accommodation expenses, and legal fees.                            Circular No 26a of 6 November 1991 ,
Pleas in law and main arguments adduced in support                    — order the defendant to pay all the costs of the
                                                                           proceedings .
The applicant, a former official receiving an invalidity
pension from the European Communities, applied to the                  Pleas in law and main arguments adduced in support
Economic and Social Committee, first, for the grant of the
variable ( not flat-rate ) education allowance to cover the
travel expenses in respect of his three children and, second,         The applicant, who is the Head of the Commission's
for an increase in the flat-rate education allowance for one           Delegation in the Republic of Chad challenges the decision
of his children .                                                     to limit to two days the travelling time added to his annual
                                                                       leave, taken pursuant to the internal directive adopted by
The first application was by implication rejected, as was the         the Commission on 21 December 1994 . Until then, the
complaint submitted in that regard; the second application            applicant had for several years been entitled to eight and a
was granted, but with effect from a date later than that              half days travelling time, in accordance with Administrative
                                                                       Circular No 26a of 6 November 1991 .
requested by the applicant. The complaint submitted in that
regard was by implication rejected .
                                                                      In support of his application, the applicant pleads, first,
The applicant has now brought an action before the Court              infringement of Administrative Circular No 26a, claiming
for the annulment of those two implied decisions refusing             that it is nowhere stated in the internal directive of
his requests .                                                        21 December 1994 that it annuls or amends the circular in
                                                                      question and that there is no statement of reasons for the
                                                                      directive which might explain why the circular no longer
                                                                      meets requirements and why a sudden major change in
                                                                      travelling time was necessary. He concludes therefrom that
                                                                      the 1991 circular is still applicable and that the contested
                                                                      decision plainly fails to comply with that provision .
Action brought on 2 September 1996 by Hendrick Smets
  against the Commission of the European Communities                  The applicant also pleads breach of the principle of
                        ( Case T-134/96 )                             protection of legitimate expectations, claiming that the
                                                                      defendant     has   caused   him   to   entertain  reasonable
                          ( 96/C 318/37 )
                                                                      expectations as to the length of travelling time in so far as it
                                                                      laid down certain criteria in that regard in provisions
                (Language of the case: French)                        adopted in the form of a circular and applied them for
                                                                      several years . In the applicant's opinion, the fact that the
                                                                      travelling time which he could claim had been reduced
An action against the Commission of the European                      without any reasons at all being given constitutes disregard
Communities was brought before the Court of First                     of established rights and infringement of the principle of the
Instance of the European Communities on 2 September                   protection of legitimate expectations .
1996 by Hendrick Smets, residing at N'djamena ( Chad ),
represented by Nicolas Lhoest, of the Brussels Bar, with an
address for service in Luxembourg at the office of Fiduciaire         Furthermore, he considers that to treat officials serving in a
Myson SARL, 1 rue Glesener.                                           third country in the same way as officials serving within the