CELEX: C1997/199/85
Language: en
Date: 1997-06-28 00:00:00
Title: Action brought on 29 April 1997 by Eugénio Branco Lda. against the Commission of the European Communities (Case T-142/97)

No C 199/36           EN                  Official Journal of the European Communities                                        28 . 6 . 97
Action brought on 25 April 1997 by Kesko Oy against the                     effective competition. The Commission therefore
          Commission of the European Communities                            contravened the principles of non-discrimination,
                       ( Case T-134/97)                                     proportionality and good administration. Moreover,
                                                                            by omitting to provide any reasons for that change in
                         ( 97/C 199/ 84 )                                   practice, the Commission infringed Article 190 of the
                                                                            EC Treaty.
                (Language of the case: English)
                                                                     3 . The Article 8 (4 ) Decision requires the pre-merger
An action against the Commission of the European                            situation to be restored and in so doing goes beyond
Communities was brought before the Court of First                           what is required to achieve the goal of restoring
Instance of the European Communities on 25 April 1997                       conditions of effective competition. In excluding a
by Kesko Oy, represented by Gerwin Van Gerven, of the                       priori solutions which fall short of establishing the
Brussels Bar, and Sarah Beeston, of the Law Society of                      status quo ante, the Commission exceeds its powers
England and Wales, with an address for service in                           under Article 8 ( 4 ) of the Merger Regulation and
Luxembourg at the Chambers of Loesch & Wolter, rue                          contravenes the principles of proportionality and good
                                                                            administration .
Goethe 11 , Luxembourg.
                                                                     (') Council Regulation ( EEC ) No 4064/89 of 21 December 1989
The applicant claims that the Court should:                                on the control of concentrations between undertakings ( OJ No
                                                                           L 395 , 30 . 12 . 1989, p. 1 ).
                                                                     ( 2 ) OJ No C 131 , 26 . 4 . 1997, p . 17.
— annul the Commission decision of 19 February 1997
     in Case IV/M.784 Kesko/Tuko,
— order the Commission to pay the costs of the
     applicant.
                                                                     Action brought on 29 April 1997 by Eugenio Branco Lda.
Pleas in law and main arguments adduced in support:                       against the Commission of the European Communities
                                                                                                  ( Case T- 142/97)
On 20 November 1996, the Commission declared ,
                                                                                                    ( 97/C 199/85 )
pursuant to Article 8 ( 3 ) of the Merger Regulation H , an
implemented concentration between the applicant and
Tuko Oy, an undertaking incorporated under Finnish law,                                (Language of the case: Portuguese)
to be incompatible with the common market and the
functioning of the EEA. Subsequently, on 19 February
1997, the Commission adopted a further decision setting              An action against the Commission of the European
out measures in order to restore effective competition               Communities was brought before the Court of First
pursuant to Article 8 (4 ) of the Merger Regulation.                 Instance of the European Communities on 29 April 1997
                                                                     by Eugenio Branco Lda, a limited liability trading
                                                                     company, whose registered office is at 9, Rua Rodrigo da
By application lodged at the Registry by the Court on                Fonseca, Lisbon, represented by Bolota Belchior, of the
31 January 1997 and allocated the case number T-22/                  Vila Nova de Gaia Bar, with an address for service in
97 (2 ), the applicant brought an action under Article 173           Luxembourg at the Chambers of Jacques Schroeder of
of the EC Treaty for annulment of the Article 8 ( 3 )                Faltz & Associes, 6, Rue Heine, Luxembourg.
Decision. By its present application, the applicant seeks
the annulment of the Article 8 (4 ) Decision .
                                                                     The applicant claims that the Court should:
The applicant makes the following submissions:
                                                                     — annul the decision of the Commission, notified to the
 1 . The Article 8 (4 ) Decision should be annulled because                 applicant by DAFSE by letter of 24 February 1997,
     it is conditional upon a valid Article 8 ( 3 ) Decision. In            approving the claim for final payment in the context
     so far as the Article 8 ( 3 ) Decision is annulled, as                 of a European Social Fund contribution, which
      requested by the applicant in its application of                      considered ineligible expenditure submitted by the
      31 January 1997, the Article 8 ( 4 ) Decision must                     applicant and claiming repayment of Esc 17 565 320 ,
      automatically be annulled.                                            Esc 423 507 of which it received by way of an
                                                                             advance granted by the European Social Fund, and of
                                                                             Esc 17 141 813 , which it received by way of an
 2. The procedure followed in the adoption of the                            advance on the contribution out of public funds made
     Article 8 (4 ) Decision was at variance with the                        by the Portuguese State, reducing the ESF contribution
      Commission's previous practice with regard to                          to Esc 30 672 242 ,
      implemented concentrations, in that it did not allow
      the applicant to propose, within a reasonable period
      of time, appropriate measures to restore conditions of          — order the Commission to pay the costs .
 ---pagebreak--- 28 . 6 . 97            EN                Official Journal of the European Communities                                 No C 199/37
Pleas in law and main arguments adduced in support:                        rights acquired by the applicant. Finally, the principle
                                                                           of proportionality was breached.
The applicant submitted to DAFSE ( Departamento para                (') OJ No C 31 , 3 . 2 . 1996, p . 18 .
Asuntos do Fundo Social Europeu — the Portuguese                    (2 ) OJ No L 289, 22 . 10 . 1983 , p. 1 .
European Social Fund agency) on 31 July 1987 its                    ( 3 ) OJ No L 289, 22 . 10 . 1983 , p. 38 .
application for financing to be granted by the European
Social Fund ( ESF ) in respect of a vocational training
programme to run from 2 January 1988 to 31 December
1988 inclusive . The training programme was approved as
a whole by a Commission decision notified to the
applicant by DAFSE on 25 May 1988 . Thus, on 12 August
1988 the applicant received Esc 31 095 749, which was an            Action brought on 29 April 1997 by G. M. van den Berg
advance of 50% of ESF's share, and Esc 25 441 977,                                   against the European Community
which was the Portuguese State's share. The applicant put                                     ( Case T-143/97)
in motion and pursued to its conclusion the
abovementioned training project and finished it within the                                      ( 97/C 199/86 )
agreed period. Subsequently, the applicant submitted the
claim for final payment. On 17 December 1993 the
applicant was notified by letter by DAFSE of the                                       (Language of the case: Dutch)
Commission's decision approving the final payment claim
but which found certain expenditure submitted by the                An action against the European Community was brought
applicant to be ineligible, reducing the ESF's contribution.         before the Court of First Instance of the European
The applicant brought the appropriate action for                     Communities on 29 April 1997 by G. M. van den Berg,
annulment against that decision of the Commission,                  residing at Dalfsen (Netherlands ), represented by E. H.
registered under Case No T-85/94 in the Court of First              Pijnacker Hordijk, of the Amsterdam Bar, with an address
Instance . That action was upheld and the decision at issue          for service in Luxembourg at the Chambers of L. Frieden,
annulled by judgment of 12 January 1995 ( ] ). Instead of            62 Avenue Guillaume .         .
implementing that judgment, the Commission took a
decision identical to that which was annulled except that,
on this occasion, it gave reasons for that decision and              The applicant claims that the Court should:
notified the applicant in order to allow it to submit
comments beforehand .
                                                                     — declare that the Community is liable to make good the
                                                                           damage which the applicant has suffered and may
The applicant maintains that the contested measure is                      suffer in the future as a result of the fact that, since
unlawful and should be annulled on the following                           the termination on 23 February 1985 of the non­
grounds :                                                                   marketing undertaking given by the applicant pursuant
                                                                           to Council Regulation ( EEC ) No 1078/77 of 17 May
                                                                            1977, he has been refused a representative reference
— Breach of the principle of legitimate                                     quantity on the sole ground that he no longer
     expectation and legal certainty :                                      operates, in whole or in part, the holding on which he
                                                                            produced milk prior to giving the said non-marketing
                                                                            undertaking,
     Although the Commission's decision is not bound by a
     definite time-limit, it should nevertheless observe a
     reasonable period for its implementation . If the               — order the Community to pay the applicant, in relation
     Commission had been so minded, it could have taken                     to the damage suffered by him, the sum of Fl 606 315 ,
     the measure which it now sought to implement in                        together with interest thereon at the rate of 8 % per
     early 1995 , after the sentence delivered by the Court                 annum from the date when the application was lodged
     on 12 January 1995 . By taking the contested decision                  until the date of payment in full,
     after a long period elapsed, the Commission breached
     the principle of legitimate expectation and legal               — order the Community to pay the costs .
     certainty,
                                                                      Pleas in law and main arguments adduced in support:
 — Unlawfulness :
                                                                      In 1986, following the expiry of his SLOM undertaking,
      The contested decision infringed Council Regulation             the applicant voluntarily purchased another dairy holding
      ( EEC ) No 2950/83 ( 2) and Council Decision 83/516/            with the intention of resuming milk production thereon.
      EEC ( 3 ) since the applicant complied rigorously with          According to the final decision of the Netherlands
      the laws, regulations, directives, criteria, obligations        authorities, however, the effect of Article 3a ( 1 ) of
      and conditions required when the initial ESF decision           Regulation ( EEC ) No 1546/88 (') is that he is not entitled
      approving the training project was taken by the                 to a milk quota. He nevertheless considers, on the basis of
      Commission . The contested decision also breached the           the case-law of the Court of Justice, that the Community