CELEX: C2001/275/27
Language: en
Date: 2001-09-29 00:00:00
Title: Case T-157/01: Action brought on 11 July 2001 by Danske Busvognmænd against the Commission of the European Communities

29.9.2001             EN                    Official Journal of the European Communities                                        C 275/13
—    Article 34 of the Staff Regulations is not applicable to his      Pleas in law and main arguments
     employment. His probationary period was governed by
     Article 14 of the Conditions of Employment of Other
     Servants of the European Communities and by the
     contract.                                                         In 1995 the Danish Minister for Transport established the
                                                                       company DSB Busser A/S with ownership vested in De Danske
                                                                       Statsbaner (DSB). The company took over buses and other
—    Under Article 5(a) of the contract and Article 14 of the
                                                                       assets from DSB and operated a number of regional and local
     Conditions of Employment, his probationary period was
                                                                       bus routes in Denmark. The company was subsequently
     six months, coming to an end on 30 April 2000.
                                                                       transferred to the Danish Ministry of Transport and changed
                                                                       its name to Combus A/S (’Combus’).
—    He was not dismissed during that six-month probationary
     period.
—    The termination decision did not provide him with the             In connection with the company’s taking over of the operation
     requisite three- months’ notice and was thus made in              of routes, employees of DSB placed on loan to Combus were
     breach of Article 5(b) of the contract and Article 47 of          offered compensation for transferring to employment on a
     the Conditions of Employment. In addition, no or no               group contract basis, this compensation being paid by DSB. In
     full compensation has been paid, in further breach of             1999 the Ministry of Transport granted Combus a secured
     Article 47.                                                       loan of DKK 100 million and made a capital injection of DKK
                                                                       200 million, ostensibly in order to prevent Combus, which
—    In any event the applicant never accepted the proposed,           was in serious financial difficulties, from going into liquidation.
     or any, extension of his probationary period. On the
     contrary, he expressly and repeatedly rejected any exten-
     sion whatsoever.                                                  The applicant, which is a branch organisation of bus compani-
                                                                       es, lodged a complaint with the Commission in November
                                                                       1999 in regard to the above measures.
                                                                       In November 2000 the Danish State informed the Commission
                                                                       that it intended to grant State aid to Combus in connection
Action brought on 11 July 2001 by Danske Busvognmænd                   with the company’s sale to the English-owned company Arriva
  against the Commission of the European Communities                   Danmark A/S. The aid was estimated at DKK 171.8 million. In
                                                                       the contested decision the Commission approved the aid in
                       (Case T-157/01)                                 the respective amounts of DKK 300 million and DKK 171.8
                                                                       million.
                       (2001/C 275/27)
                                                                       The applicant claims that the Commission has approved
                  (Language of the Case: Danish)                       unlawful State aid in so far as the conditions in
                                                                       Article 87(3)(c) EC have not been satisfied. Even though the
An action against the Commission of the European Communi-              Commission can, as a general rule, lawfully apply the frame-
ties was brought before the Court of First Instance of the             work provisions on State aid to undertakings in crisis, those
European Communities on 11 July 2001 by Danske Bus-                    framework provisions cannot depart from the provisions of
vognmænd, Frederiksberg (Denmark), represented by Per Dal-             Article 87 EC. The aid for Combus, it argues, is not in the
skov.                                                                  Community interest and does not serve those objectives which
                                                                       may justify approval of aid as restructuring aid. The aid was in
                                                                       the nature of operating aid or, possibly, rescue aid, but this has
The applicant claims that the Court should:                            not been mentioned by the Commission as relevant in this
                                                                       case. Further, the aid had the effect of distorting competition.
—    Primarily: annul the European Commission’s decision
     of 28 March 2001 concerning aid measure
     No NN 127/2000 (State aid for Combus A/S) (SG (2001)              The applicant also claims that the Commission has mistakenly
     D/287297), and rule that the decision is void pursuant to         dealt with only two out of three tranches of State aid in that it
     the first paragraph of Article 231 EC;                            failed to address the obligation which DSB undertook to pay
                                                                       compensation to employees transferring to employment on a
—    In the alternative: annul the European Commission’s               group contract basis. The Commission further erred, it argues,
     approval of the portion of the aid granted to Combus A/S          in treating the State aid as one entire aid measure despite the
     on 31 May 1999;                                                   fact that three separate and independent State aid measures
                                                                       were granted. While there was presumably a causal connection
—    Order the European Commission to pay the costs                    between the two aid amounts of DKK 300 million and DKK
     involved in bringing the case before the Court of First           171.8 million, these were separate in time and served different
     Instance.                                                         objectives.
 ---pagebreak--- C 275/14               EN                      Official Journal of the European Communities                                       29.9.2001
The applicant goes on to argue that the Commission erred in                     —     to assign to the unit in Directorate A of DG INFSO
applying Regulation (EEC) No 1191/69 of the Council (1) to                            responsible for telecommunications the duties of
the situation in this case. It submits that Combus has neither                        organising and managing the internet infrastructures
a ‘tariff obligation’ nor an ‘obligation to operate’, and that the                    which the applicant carried out in his capacity as
company does not provide a public service. The regulation is                          advisor;
not applicable to Combus and the State aid granted to Combus
does not come with the scope of that regulation.                                —     to abolish his duties as advisor;
In the contested decision, the Commission proceeded on the                      —     to transfer him in due course to another Directorate
basis that the aid for Combus is restructuring aid. Against this,                     General by way of redeployment; and
the applicant argues that the aid granted is not restructuring
aid, but rather an operating subsidy, and that at no time was a                 —     to transfer him in the interim as advisor ad personam
restructuring plan submitted for any of the three subsidies                           at Directorate A of DG INFSO.
granted in total. Further, it is a condition of the framework
provisions that aid recipients must contribute significantly to           —     annul the implied decision rejecting a number of adminis-
the restructuring programme using their own means from                          trative complaints lodged by the applicant on 4 and
external financing, and it is, according to the applicant, obvious              19 December 2000, and on 19 January 2001, against the
that Combus did not itself make any contribution.                               decisions of 1 December.
                                                                          —     order the defendant to pay the costs.
So far as Article 73 EC is concerned, the applicant submits
inter alia that neither the Member States nor the Commission
can invoke Article 73 EC in order to legitimise aid for the
transport industry or transport objectives which cannot be                Pleas in law and main arguments
regarded as being compatible with Article 87 EC.
                                                                          —     the existence in the present case of a manifest error of
The applicant concludes by arguing that the Commission has                      assessment;
infringed the principles of equal treatment and proportionality,
has failed to meet its obligation to provide reasons, and has             —     manifestly inadequate reasons for the contested acts;
committed essential procedural errors, for instance through its
use of fundamentally flawed facts in support of the decision.             —     infringement of the decision of 26 July 2000
                                                                                implementing ‘peer review’, as set out in the memor-
                                                                                andum of 13 September 2000 from the Secretary General
(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on
                                                                                to the Directors General and Heads of Service;
    action by Member States concerning the obligations inherent in
    the concept of a public service in transport by rail, road and
    inland waterway (OJ, English Special Edition 1969(I), p. 276).        —     breach of the duty to have regard for the welfare of
                                                                                officials;
                                                                          —     infringement of Article 7(1) of the Staff Regulations.
Action brought on 12 July 2001 by Christopher Wilkin-
  son against Commission of the European Communities
                         (Case T-159/01)
                                                                          Action brought on 17 July 2001 by Juan Pedro Pérez
                                                                          Escanilla against the Commission of the European Com-
                         (2001/C 275/28)                                                               munities
                    (Language of the case: French)                                                  (Case T-163/01)
An action against the Commission of the European Communi-                                          (2001/C 275/29)
ties was brought before the Court of First Instance of the
European Communities on 12 July 2001 by Christopher
Wilkinson, residing in Brussels, represented by Marc-Albert                                   (Language of the case: French)
Lucas, lawyer.
                                                                          An action against the Commission of the European Communi-
The applicant claims that the Court should:                               ties was brought before the Court of First Instance of the
                                                                          European Communities on 17 July 2001 by Juan Pedro Pérez
—     annul the decisions of 1 December 2000 of the Director              Escanilla, residing in Brussels, represented by Jean-Noël Louis
      General of DG INFSO:                                                and Véronique Peere, lawyers.