CELEX: C1995/351/37
Language: en
Date: 1995-12-30 00:00:00
Title: Action brought on 3 November 1995 by Miwon Co. Ltd against the Commission of the European Communities (Case T-208/95)

30 . 12 . 95          EN                  Official Journal of the European Communities                                   No C 351 / 19
Bar, with an address for service in Luxembourg at the                Moreover, the Commission itself decided to allow all
Chambers of Evelyne Korn, 21 Rue Nassau .                            members of the temporary staff whose entry into service
                                                                     commenced after July 1988 and before March 1992 — as in
The applicant claims that the Court should :                         the case of the applicant — to take part in two competitions,
                                                                     provided that they could show that they had completed not
— declare the action admissible ,                                    less than three years' service as members of the temporary
                                                                     staff. Since the Commission restricted its powers by stating
— declare notice of competition COM/T/B/95 illegal and               that the category of servants eligible for equal treatment as
     inapplicable to the applicant,                                  regards access to competitions leading to establishment was
                                                                     to comprise servants who entered into service within those
— annul the decision of the selection board of 7 November            two dates, the applicant's inability to obtain an extension
     1994    refusing    to    admit    her   to   competition       until 30 September 1994 of her status as a member of the
    COM/T/B/95 ,                                                     temporary staff cannot constitute objective justification for
                                                                     the difference in treatment .
— declare that the decisions by which the Commission
    adopted its general policy regarding temporary staff in          Lastly, the applicant pleads a breach in the present case of
     March 1992 and February 1994 are in breach of the               the duty to have regard for the welfare and interests of
    principles referred to in the applicant's pleas, and declare     officials .
    them inapplicable to the applicant,
— annul the decision of the Commission of 27 July 1995
    refusing to admit her to any competition leading to
    establishment other than competition COM/T/B/95 ,
— order the Commission to pay her damages on account of              Action brought on 3 November 1995 by Miwon Co. Ltd
    the erroneous and prejudicial nature of the contested               against the Commission of the European Communities
    decisions; the applicant reserves the right to submit later                              ( Case T-208/95 )
    on in the proceedings detailed calculations of the loss
    suffered by her,                                                                           ( 95/C 351 /37 )
— order the defendant to pay the costs .                                              (Language of the case: English)
Pleas in law and main arguments adduced in support:                  An action against the Commission of the European
                                                                     Communities was brought .before the Court of First
The applicant, formerly a member of the temporary staff in           Instance of the European Communities on 3 November
category B and currently a member, in the same category, of          1995 by Miwon Co . Ltd, represented by Mr Jean-Francois
the auxiliary staff of the Commission, contests the refusal by       Bellis, with an address for service in Luxembourg at the
the selection board in internal competition COM/T/B/95 to            Chambers of A. F. Brausch , 8 Rue Zithe .
admit her to the tests in that competition on the ground that
she was not a member of the temporary staff on the date
when she submitted her application . That decision was               The applicant claims that the Court should :
taken on the basis of a notice of competition requiring
candidates to have completed, by 30 September 1994 at the            — annul Commission Regulation ( EC ) No 1754/95 of
latest, a minimum of three years' service as a servant of the              18 July 1995 imposing a provisional anti-dumping duty
Communities , as defined in the Conditions of Employment                  on imports of monosodium glutamate originating, inter
of other Servants, and to be a member of the temporary staff              alia, in the Republic of Korea in so far as it considers that
in category B on that date .                                              the applicant violated its undertaking and imposes
                                                                          a provisional anti-dumping duty on imports of
The applicant points out in that regard that she signed, in               monosodium glutamate manufactured by the applicant,
accordance with the indications given by the administration,              and
a contract of employment as a member of the auxiliary staff
of one month 's duration, in order to be eligible to take part       — order the Commission to pay the costs of these
in a competition leading to establishment. It was in fact for             proceedings .
that reason that the applicant, legitimately believing on the
basis of what she had been told that she would be admitted
to the tests, did not lodge a complaint against the notice of        Pleas in law and main arguments adduced in support:
competition in question .
                                                                     The applicant, a limited company established under the laws
The applicant maintains, first, that there has been a breach         of the Republic of Korea, produces a wide range of food and
of the principle of legitimate expectations , inasmuch as she        chemical products , including monosodium glutamate
was given clear assurances by the competent departments of            ( hereinafter ' MSG'), a product used as a flavour enhancer
the Commission that she had the right to take part in the            in food products. It states that on 27 June 1990 , the
competition in question as a member of the auxiliary                  Council adopted Regulation ( F'EC ) No 1798/90 imposing
staff.                                                                a definitive anti-dumping duty on imports of MSG
 ---pagebreak--- No C 351 /20             EN                    Official Journal of the European Communities                                      30 . 12 . 95
originating in Indonesia , the Republic of Korea , Taiwan and             Action brought on 3 November 1995 by Windstar Sail
Thailand and collecting definitively the provisional duty .               Cruises Limited, Wind Star Limited and Wind Spirit Limited
MSG produced and exported to the Community by                               against the Commission of the European Communities
companies which offered undertakings which had been                                                ( Case T-209/95 )
accepted by the Commission was exempted from definitive
duties and the applicant was among the companies                                                     ( 95/C 351 /38 )
exempted from the definitive anti-dumping duty . Following
a request for a review under Article 14 of Council
Regulation ( EEC ) No 2423/88 lodged by Orsan , the sole                                   (Language of the case: English)
Community producer of MSG , the Commission on 9 July
1994 published notice 94/C 187/06 concerning the
initiation of a review of all the anti-dumping measures                   An action against the Commission of the European
applicable to imports of MSG originating in Indonesia , the               Communities was brought before the Court of First
Republic of Korea , Taiwan and Thailand . On 8 June 1995                  Instance of the European Communities on 3 November
the Commission sent a disclosure letter to the applicant                  1995 by Windstar Sail Cruises Limited, Wind Star Limited
announcing its intention to withdraw its price undertakings               and Wind Spirit Limited, represented by Alfred Merckx, of
and to replace it by a provisional anti-dumping duty based                the Brussels Bar ( Sinclair Roche & Temperley ), Broadwalk
on the facts established before the acceptance of the price               House, 5 Appold Street, London ..
undertaking. The Commission considered that ' even if the
export prices , taken at their face value, did correspond to the
terms of the undertakings, the level of the resale prices of the
merchandise in the Community nevertheless constitute a                    The applicants claim that the Court should :
clear indication of the violation of the undertakings'. On
18 July the Commission adopted Regulation ( EC )                          — annul pursuant to Articles 173 and 174 of the EC Treaty
No 1754/95 , the act contested in the present application .                    the Commission decision of 21 June 1995 in so far as it
                                                                               considers the aid granted by the French government
                                                                               for the building of the 'Tahiti Nui ' as development aid
The applicant asserts that the contested Regulation is                         under Article 4 ( 7 ) of the shipbuilding Directive and
manifestly unlawful in that it is based on invalid grounds . It                compatible with the common market,
explains that the Commission based its decision on
Article 10 ( 6 ) of Council Regulation ( EEC ) No 2423/88 ,
that is , on the finding that the applicant was in breach of its          — order the Commission to pay the costs .
undertaking . The applicant maintains that this finding is
manifestly unlawful :
                                                                          Pleas in law and main arguments adduced in support:
( 1 ) to the extent that it is based on facts which do not
       individually concern the applicant;                                The applicants who operate cruises between various EC
                                                                          ports in the Mediterranean and between ports of call in the
                                                                          Caribbean and French Polynesia are challenging the
                                                                          Commission 's decision not to raise objections to State aid
( 2 ) in that it rests on a fundamental error of law, namely              granted to their French competitor ' Services et Transports'
       the notion that a finding of a breach of a price                   for the building, by the French shipbuilding yard Ateliers et
       undertaking can be based on an analysis of the resale              Chantiers du Flavre, of a ship to be named 'Tahiti Nui '
       prices of the product concerned by independent                     which would go into operation in French Polynesia from
       importers in the Community;                                         1996 . The Commission has considered this aid to be
                                                                          development aid as within the meaning of Article 4 ( 7 ) of the
                                                                          shipbuilding Directive and therefore to be compatible with
 ( 3 ) in that it is based on a secret file of which no details have       Community law.
       been disclosed to the applicant, thus depriving it of its
       fundamental right to be heard; and
                                                                          In support of their application the applicants state as
                                                                           follows :
 ( 4 ) in that it is unjustified for the Commission to consider
       that the importer in Germany referred to in point 6 of             — the decision infringes Article 93 of the EC Treaty, in so
       the contested Regulation was related to the applicant                    far as the Commission can only take a decision to raise
       during the investigation period and that, in any event,                  no objections without initiating the procedure under
       this question is unrelated to the question of whether the                Article 93 ( 2 ) when it is prima facie manifestly apparent
       applicant was in breach of its undertaking.                              that the aid is compatible with Community law .
                                                                                However, in the present case whilst the defendant
                                                                                institution had initially expressed serious doubts about
                                                                                opening the Article 93 ( 2 ) procedure, it had de facto
                                                                                taken this aid out of the scope of this procedure and
                                                                                examined it under the simplified verification procedure