CELEX: C1996/336/61
Language: en
Date: 1996-11-09 00:00:00
Title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 19 September 1996 in Case T-138/96 R: Giovanni Ballone Burini v. Court of Justice of the European Communities (Officials - Competitions - Non-admission to a competition - Procedure for interim relief - Application for suspension of operation of a measure)

No C 336/28             EN                 Official Journal of the European Communities                                   9 . 11 . 96
in Luxembourg at the Chambers of Ernest Arendt, 34 Rue                      ORDER OF THE COURT OF FIRST INSTANCE
Philippe II v. Commission of the European Communities                                        of 18 September 1996
(Agents, during the written procedure, Bernd Langeheine
and Richard Lyal and, at the hearing, Richard Lyal, Paul              in Case T-22/96 : J. Langdon Ltd v. Commission of the
Nemitz and Berend Jan Drijber ); T-26/93 , Deutsche                                        European Communities (')
Afrika-Linien GmbH & Co ., established at Hamburg                     (Action for annulment — Contested decision revoked in the
( Germany ), represented by Michael Strobel , Rechtsanwalt,                course of proceedings — No need to give a decision)
Hamburg, with an address for service in Luxembourg at the                                         ( 96/C 336/60 )
Chambers of Nicolas Decker, 16 Avenue Marie-Therese v.
Commission of the European Communities ( Agents, during
the written procedure , Bernd Langeheine and Richard Lyal                               (Language of the case: English)
and, at the hearing, Richard Lyal , Paul Nemitz and Berend
Jan Drijber ) and Case T-28/93 Nedlloyd Lijnen BV,                    In Case T-22/96 : J. Langdon Ltd, established in Dublin,
established at Rotterdam ( Netherlands ), represented,                represented by Patrick O'Brien , Solicitor, with an address
during the written procedure , by Tom R. Ottervanger, of the          for service in Luxembourg at the Chambers of Faltz &
Rotterdam Bar, and , at the hearing, by Jacques Steenbergen,          Associés, 6 Rue Heine, against Commission of the European
of the Brussels Bar, with an address for service in                   Communities ( Agents : Messrs Richard Wainwright and
Luxembourg at the Chambers of Carlos Zeyen, 4 Rue de                  Fernando Castillo de la Torre ) — application for the
l'Avenir v. Commission of the European Communities                    annulment of Commission Decision COM(95 ) 2726 of
(Agents, during the written procedure, Bernd Langeheine               3 November 1995 finding that it is justified to take action
and Richard Lyal and, at the hearing, Richard Lyal , Paul             for the post-clearance recovery of import duties and that the
Nemitz and Berend Jan Drijber ) — application for the                 remission of these duties is not justified — the Court of First
annulment        of   Commission     Decision   93 /82/EEC    of      Instance ( Second Chamber ), composed of: H. Kirschner,
23 December 1992 relating to a proceeding pursuant to                 President, C. W. Bellamy and A. Kalogeropoulos, Judges ; H.
Articles 85 ( IV/32.448 and IV/32.450 : Cewal, Cowac and              Jung, Registrar, made an order on 18 September 1996 , the
Ukwal ) and 86 ( IV/32.448 and IV/32.450 : Cewal ) of the             operative part of which is as follows :
EEC Treaty ( 2 ), the Court of First Instance of the European
Communities (Third Chamber, Extended Composition ),                    1 . there is no need to give a decision ;
composed of: C. P. Briët, President, P. Lindh, A. Potocki ,
R. M. Moura Ramos and J. D. Cooke, Judges, Registrar : J.             2 . the Commission shall bear its own costs and four fifths
Palacio Gonzalez, Administrator, gave a judgment on                         of the applicant's costs.
 8 October 1996 , the operative part of which is as
follows :                                                              (') OJ No C 158 , 1 . 6 . 1996 .
 1 . Cases T-24/93 , T-25/93 , T-26/93 and T-28/93 are
       joined for the purposes of the judgment;
 2 . the applications for the annulment of Commission
       Decision 93/82/EEC of 23 December 1 992 relating to a
       proceeding pursuant to Articles 85 (IV/32.448 and                                ORDER OF THE PRESIDENT
       IV/32.450: Cewal, Cowac and Ukwal) and 86                                  OF THE COURT OF FIRST INSTANCE
       (IV/32.448 and IV/32.450: Cewal) of the EEC Treaty                                    of 19 September 1996
       are dismissed;
                                                                       in Case T-138/96 R : Giovanni Ballone Burini v. Court of
 3 . the amount of the fines imposed by Article 6 of that                            Justice of the European Communities
       decision is fixed as follows:                                   (Officials — Competitions — Non-admission to a
                                                                       competition — Procedure for interim relief — Application
       — Compagnie Maritime Belge SA : ECU 8 640 000,
                                                                                   for suspension of operation of a measure)
       — Dafra-Lines A/S: ECU 180 000,                                                             ( 96/C 336/61 )
       — Deutsche Afrika-Linien GmbH Sc Co.: ECU
           180 000,                                                                      (Language of the case: Italian)
       — Nedlloyd Lijnen BV: ECU 90 000;
                                                                       In Case T-138/96 R: Giovanni Ballone Burini, residing in
 4 . the applicants are ordered to pay all the defendant 's            Castelfidardo ( Italy ), represented during the written
       costs; in addition, the applicants in Case T-24/93              procedure by Giancarlo Piersimoni, of the Ancona Bar
        (Compagnie Beige SA and Compagnie Maritime Beige               ( Italy ), and during the oral procedure, by Carlo Revoldini,
        Transports SA) are ordered jointly and severally to pay        of the Luxembourg Bar, with an address for service in
       all the costs of the interveners.                               Luxembourg at the address of Marco Pantanetti , 17 Rue de
                                                                       Dudelange, Kayl , against Court of Justice of the European
 (') OJ No C 122 , 4 . 5 . 1993 and                                    Communities ( Agents : Messrs Timothy Millett and Federico
       OJ No C 124 of 6 . 5 . 1993 .                                   Falcone ) — application for suspension of operation of the
 ( 2 ) OJ No L 34 , 1993 , p . 20 .                                    decision of the Selection Board for General Competition
                                                                        CJ/A/ 1 1 rejecting the applicant's candidature — the
                                                                       President of the Court of First Instance made an order on
 ---pagebreak--- 9 . 11 . 96           EN                    Official Journal of the European Communities                                   No C 336/29
19 September 1996, the operative part of which is as                   question was necessary in order to compensate for the
follows :                                                              disadvantages caused by the division of Germany. Instead, it
                                                                       merely addressed the question whether the criteria for
1 . the application for interim relief is dismissed;                   applying Article 92 ( 3 ) were fulfilled . Since the Commission
                                                                       has a discretion in the adoption of decisions under
2.   the costs are reserved.                                           Article 92 ( 3 ), but not under Article 92 ( 2 ), it should have
                                                                       approached the matter from the opposite standpoint, and
                                                                       should initially have applied Article 92 ( 2 ) ( c ). In failing to
                                                                       do so , it infringed the EC Treaty . The considerations relating
                                                                       to capacity which the Commission applied were
                                                                       misconceived in law and in fact; from a legal standpoint, the
                                                                       application of Article 92 ( 2 ) ( c ) of the Treaty does not
Action brought on 26 August 1996 by Freistaat Sachsen
                                                                       depend on whether the aid gave rise to overcapacity, and
  against the Commission of the European Communities
                                                                       from a factual standpoint that was not the case .
                       ( Case T-132/96 )
                         ( 96/C 336/62 )                               The Commission did not interpret Article 92 ( 2 ) ( c );
                                                                       moreover, as is apparent from the grounds of its decision , it
               (Language of the case: German)                          took the view that the present case did not concern 'regional
                                                                       aid for new investment projects'. Since the Commission thus
                                                                       failed to provide reasons for its decision, the action must
An action against the Commission of the European                       also succeed on the ground of infringement of essential
Communities was brought before the Court of First                      procedural requirements .
Instance of the European Communities on 26 August 1996
by Freistaat Sachsen, Dresden, represented by Karl Pfeiffer
and Joachim Sedemund, Rechtsanwalte, of Messrs Deringer                In addition , the Commission misapplied Article 92 ( 3 ).
Tessin Herrmann & Sedemund , Berlin, with an address for               Above all , the Commission erred in law in founding its
service in Luxembourg at the Chambers of Aloyse May, 31                decision on Article 92 ( 3 ) ( a ) and ( c ) as a whole , without
Grand-Rue .                                                            explaining which of those two completely different and
                                                                       mutually exclusive provisions it was seeking to apply . In
                                                                       fact, the only one of those provisions which could possibly
The applicant claims that the Court should :                           have been applicable was Article 92 ( 3 ) ( a ), which could not
                                                                       have served to justify the Commission 's findings . In that
— annul Article 2 of the decision of the Commission of                 regard also , therefore, the Commission infringed both the
     26 June 1996 on aid granted by Germany to the                     Treaty and its obligation to provide a statement of
     Volkswagen Group for the plants in Mosel and                      reasons .
     Chemnitz ( reference No C 62/91 ex NN 75 , 77, 78 and
     79/91 ),
                                                                       The Commission wrongly based its decision in addition on
                                                                       the Community framework provisions for the motor
— order the Commission to pay the costs .                              industry in order to substantiate the different treatment
                                                                       afforded to       new investments     and to investments in
Pleas in law and main arguments adduced in support:                    expansion . The Community framework provisions do not
                                                                       lay down different rules for the two forms of investment,
The action is directed against a decision of the Commission            and there is no basis in the applicable Community legislation
of 26 June 1996 addressed to the Government of the Federal             for the Commission 's administrative practice of making
Republic of Germany, refusing approval of significant parts            such distinctions from time to time .
of the aid in question, for which provision has been made ,
pursuant to rules of German law approved by the                        Lastly, the contested decision is also wrong because, when
Commission, with regard to factories in the Freistaat                  the German authorities approved the aid, the Community
Sachsen ( Free State of Saxony ) owned by the Volkswagen               framework provisions for the motor industry had already
Group . The Commission refused to authorize such aid ,                 expired but had not yet been renewed . The same also applies
amounting to approximately DM 240 million , on the                     to the Commission 's decision whereby the Community
ground that Article 92 ( 2 ) (c ) of the EC Treaty, which allows       framework provisions were extended to cover Germany,
aid to be granted in order to compensate for the                       despite the fact that the German Government had not given
disadvantages caused by the division of Germany, is not                its consent thereto . Since the German aid rules had been
applicable and that Article 92 ( 3 ) of the Treaty does not            approved by the Commission and the Commission had not
permit grants of aid amounting to more than the sums                   raised any objection regarding the correct application of
approved by it.                                                        those rules, there was no need for any specific notification of
                                                                       the German aid decision in March 1991 , and there was no
The applicant considers that the Commission erred in failing           justification for the initiation by the Commission of a
to apply Article 92 ( 2 ) ( c ) of the EC Treaty to the factual        proceeding under Article 93 ( 3 ) or for its adoption of the
situation requiring to be assessed in the present case . That          contested decision . On that ground also , the decision should
provision - has mandatory force in law and is therefore                be annulled .
applicable in every case where the factual criteria set out in
its wording are fulfilled . The Commission did not examine
whether that was the case — that is to say, whether the aid in