CELEX: C1998/340/47
Language: en
Date: 1998-11-07 00:00:00
Title: Action brought on 23 July 1998 by Compañía Trasmediterránea SA against the Commission of the European Communities (Case T-116/98)

C 340/24             EN                   Official Journal of the European Communities                                    7.11.98
Igartua, Gonzalo GimeÂnez AndreÂs, Pedro Tarno                       Pleas in law and main arguments adduced in support:
FernaÂndez, Manuel Rodríquez Alonso, Ana María Cobos
Aguirre, Fernando Truyols Zaforteza, Isabel de Eguía
Antolín, Victor Pou Serradell, Lucía Ramón Amat,
Joaquín FerraÂn PeÂrez-Portabella, JesuÂs SuaÂrez Avila, Pablo       The applicant company, which was awarded a contract
JimeÂnez FernaÂndez, Rosa Quevedo Díez, Angeles Santos               pursuant to the invitation to tender for the provision of a
Asenjo, Francisco de Vicente, Carlos Arroyos, Antonio                maritime public service between Spanish mainland ports
Lopez PenÄa, Valeriano Díaz García, Alfonso GonzaÂlez                and the ports of the Balearic and Canary Islands, Ceuta
Finat, Antonio FernaÂndez AvileÂs, Miguel AbellaÂn López,            and Melilla, takes issue with the Commission's decision to
Angel GonzaÂlez Leiro, Fernando Aragón Morales, Rafael               initiate the procedure provided for by Article 93(2) of the
Valls i Pursals, JesuÂs Garijo, Alexandre Checchi Lang,              EC Treaty, in so far as it claims that the compensation
Rafael Cepas Palanca, Eduardo de la PenÄa Vega, Antonio              received from the State for provision of the services put
Alonso Madero, Jaime Díez-Canseco, Enrique Juaristi                  out to tender might constitute State aid within the
Martínez and Pablo Benavides, residing in Brussels and               meaning of Article 92 of that Treaty.
Luxembourg, represented by Antonio Creus and BegonÄa
Uriarte Valiente, of the Barcelona and Madrid Bar, with
an address for service in Brussels at 78 Avenue
d'Auderghem.                                                         The applicant claims, first, that the defendant has
                                                                     misinterpreted the Community definition of State aid. In
The applicants claim that the Court should:                          its opinion, in the present case, the required effect on
Ð annul the Commission Decisions of 13 and                           trade between Member States is absent, given that, under
    19 November 1997, withdrawing from the applicants                Article 6 of Council Regulation (EEC) No 3577/92 of
    its financial and technical assistance in their action           7 December 1992 applying the principle of freedom to
    concerning the transfer of pension rights acquired               provide services to maritime transport within Member
    under the Spanish pension scheme, and the Decision of            States (1), island cabotage is a sector which, in Spain's
    the appointing authority of 19 June 1998 rejecting the           case, will not be opened up to competition until 1 January
    complaint made by the applicants;                                1999. The applicant therefore questions how a State can
                                                                     be in breach of a regulation which does not apply to it.
Ð order the Commission to pay the costs of these
    proceedings.
Pleas in law and main arguments adduced in support:                  Second, the applicant claims that the Commission has
The pleas in law and main arguments are the same as                  misinterpreted the Community guidelines on State aid to
those relied on in Case T-114/95 Rodríguez PeÂrez and                maritime transport (2), in classifying the contract in
Others v. Commission.                                                question as State aid on the basis of its allegedly excessive
                                                                     duration and the failure to publicise adequately the
                                                                     invitation to tender. The applicant takes the view that the
                                                                     guidelines do not even envisage a strict obligation to put
                                                                     out an invitation to tender for a public service contract in
Action brought on 23 July 1998 by CompanÄía                          the field of maritime transport and that it therefore falls
TrasmediterraÂnea SA against the Commission of the                   exclusively to the State to choose the method of awarding
                   European Communities                              the contract to a company. In its view the publicity given
                       (Case T-116/98)                               to the contract in question must be considered adequate,
                                                                     in that it was arranged according to generally applicable
                        (98/C 340/47)                                rules under Spanish legislation conforming to Community
               (Language of the case: Spanish)                       principles established by the Community directives on
                                                                     public procurement. For the rest, the applicant considers
An action against the Commission of the European                     that the Spanish authorities have limited the duration of
Communities was brought before the Court of First                    the contract to five years Ð a period given purely as
Instance of the European Communities on 23 July 1998                 normal target in the guidelines Ð since it will not be
by CompanÄía TrasmediterraÂnea SA, a company having its              subject to Regulation (EEC) No 3577/92 in its first year,
registered office in Madrid, represented by Antonio Creus            so that its six year term is made up in practice of one year
and BegonÄa Uriarte Valiente, of the Barcelona and Madrid            followed by five.
Bar, with an address for service in Brussels at 78 Avenue
d'Auderghem.
The applicant claims that the Court should:                          A further ground for annulment cited is breach of
Ð annul the Commission Decision of 18 February 1998                  Article 90(2) of the Treaty in that the alleged State aid
    to initiate the procedure for review of State aid under          must be considered to be compensation for provision of a
    Article 93(2), published in Official Journal of the              public service by the applicant in its capacity as the
    European Communities C 147 of 13 May 1998 in the                 company responsible for running a service in the general
    form of a Communication to the Member States and                 economic interest, namely maritime passenger transport to
    interested parties;                                              the Spanish mainland from other Spanish ports in
                                                                     compliance with standards of regularity, continuity,
Ð order the Commission to pay all the costs incurred by              capacity and quality established by the Spanish
    CompanÄía TrasmediterraÂnea SA in these proceedings.             administration.
 ---pagebreak--- 7.11.98               EN                 Official Journal of the European Communities                                     C 340/25
Finally the applicant claims that its right to a fair hearing       On 19 December 1997 the Commission sent a letter
has been disregarded, given that, at no time during the             pursuant to Article 6 of Commission Regulation No 99/
pre-litigation procedure did the Commission respect its             63/EEC in which it stated that it had concluded that there
fundamental right to be heard.                                      were no grounds for granting the application in so far as
                                                                    Article 86 of the EC Treaty was concerned. In its letter of
                                                                    2 February 1998 the applicant submitted its observations
(1) OJ L 364 of 12.12.1992, p. 7.
(2) OJ C 205 of 5.7.1997, p. 5.                                     to this Article 6 letter' by reiterating its objections to the
                                                                    intention of the Commission to reject its complaint. It
                                                                    asked the Commission to reject the complaint by formal
                                                                    decision within a reasonable time and in any event before
                                                                    15 March 1998.
                                                                    On 2 June 1998 the applicant formally invited the
Action brought on 7 August 1998 by UPS Europe NV/SA                 Commission to make a final decision with regard to its
   against the Commission of the European Communities               complaint under Article 86 of the EC Treaty and
                       (Case T-127/98)                              announced that it would initiate an action for failure to
                                                                    act under Article 175 of the EC Treaty if the Commission
                        (98/C 340/48)                               did not inform the applicant of its decision within two
                                                                    months from the date of that letter. As the Commission
                                                                    has not delivered the requested final decision, the present
               (Language of the case: English)                      application has been submitted to the Court.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 7 August 1998
by UPS Europe SA/NV, represented by Tom R.
Ottervanger and Dirk Arts, with an address for service in           Action brought on 31 August 1998 by Armement
Luxembourg at the offices of Loeff Claeys Verbeke, 5 rue            CoopeÂratif Artisanal VendeÂen (ACAV) and Others against
Charles Martel.                                                                    Council of the European Union
                                                                                           (Case T-138/98)
The applicant claims that the Court should:                                                  (98/C 340/49)
Ð declare in accordance with Article 175           of the EC                       (Language of the case: French)
     Treaty that the Commission has failed to      act by not
     having delivered a decision on the            applicant's      An action against the Council of the European Union was
     complaint lodged with the Commission          on 7 July        brought before the Court of First Instance of the European
     1994;                                                          Communities on 31 August 1998 by Armement
                                                                    CoopeÂratif Artisanal VendeÂen (ACAV) and Others,
                                                                    established in Ile d'Yeu (France), represented by Lise
Ð order the Commission to pay the costs incurred by the             Funck-Bretano and SteÂphanie Ponsot, of the Paris Bar,
     applicant in the present proceedings; and                      with an Address for service in Luxembourg at the
                                                                    Chambers of Jacques Neuer, 9 Avenue Guillaume.
Ð take such further action as the Court may deem
     appropriate.                                                   The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                 Ð annul Council Regulation (EC) No 1239/98;
                                                                    Ð order the Council to pay all the costs.
On 7 July 1994, the applicant, part of the United Parcel
Service' (UPS) group of companies, which is active
worldwide in the business of parcel delivery, lodged a              Pleas in law and main arguments adduced in support:
complaint with the Commission asking it to initiate
proceedings against Deutsche Bundespostdienst (now                  On 8 June 1998 the Council adopted the contested
Deutsche Post AG). In its complaint, the applicant, apart           regulation prohibiting, with effect from 1 January 2002,
from alleging unlawful State aid by the Member State                the use of drift-nets for the capture of certain species of
Germany, identified conduct of Deutsche Post AG which,              fish, including white tuna, by vessels flying the flag of a
in its opinion, infringes Article 86 of the EC Treaty. The          Member State, in particular in the North-East Atlantic.
applicant is of the opinion that the Deutsche Post AG is
engaged both in predatory pricing practices and in using
cross-subsidies to extend a dominant position from the              The applicants, all fishermen from the Ile d'Yeu, who fish
letter market to the related parcel market.                         for those species, in particular using that type of net,