CELEX: C1999/020/55
Language: en
Date: 1999-01-23 00:00:00
Title: Action brought on 3 November 1998 by UPS Europe NV/SA against the Commission of the European Communities (Case T-182/98)

C 20/30              EN                  Official Journal of the European Communities                                 23.1.1999
                                                   COURT OF FIRST INSTANCE
     ORDER OF THE COURT OF FIRST INSTANCE                           Instance of the European Communities on 3 November
                     of 23 October 1998                             1998 by UPS Europe NV/SA, represented by T. R.
                                                                    Ottervanger, with an address for service in Luxembourg at
in Case T-25/96 (92): Arbeitsgemeinschaft Deutscher                 the Office of Loeff Clayes Verbeke, 5, Rue Charles
Luftfahrt-Unternehmen and Another v. Commission of the              Martel, L-2134 Luxembourg.
                  European Communities (1)
                     (Taxation of costs)
                                                                    The applicant claims that the Court should:
                        (1999/C 20/54)
               (Language of the case: German)
                                                                    Ð annul the decision of the Commission not to start
                                                                        proceedings under Article 93(2) of the EC Treaty
In Case T-25/96 (92): (1) Arbeitsgemeinschaft Deutscher                 against the Federal Republic of Germany with regard
Luftfahrt-Unternehmen, established in Bonn, composed of                 to the state aid issues raised in the complaint of the
the following members: Aero Lloyd Flugreisen GmbH &                     applicant.
Co. Luftverkehrs-KG, established at Oberursel (Germany),
Air Berlin GmbH & Co. Luftverkehrs KG, established in
Berlin, Condor Flugdienst GmbH, established at
Kelsterbach (Germany), Germania Fluggesellschaft mbH,               Ð order the Commission to pay the costs incurred by the
established in Berlin, Hapag-Lloyd Fluggesellschaft mbH,                applicant in the present proceedings.
established at Langenhagen (Germany) and LTU
Lufttransport Unternehmen GmbH & Co. KG, established
in Düsseldorf, and (2) Hapag-Lloyd Fluggesellschaft mbH,            Pleas in law and main arguments adduced in support:
established at Langenhagen (Germany), represented by
Gerrit Schohe, Rechtsanwalt, Hamburg, with an address
for service in Luxembourg at the Chambers of Marc                   On 7 July 1994, the applicant, part of the United Parcel
Baden, 34 b Rue Philippe II, v. Commission of the                   Service' (UPS) group of companies, which is active
European Communities (agent: Paul Nemitz) Ð                         worldwide in the business of parcel delivery, lodged a
application for taxation of costs pursuant to the order             complaint with the Commission asking it to initiate
made by the Court of First Instance on 14 March 1997 in             proceedings to establish among other things that abusive
Case T-25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Un-            market behaviour by, and cross-subsidisation with respect
ternehmen and Hapag-Lloyd v. Commission [1997] ECR                  to, Deutsche Bundespost Postdienst, now Deutsche Post
II-363 Ð the Court of First Instance (Fifth Chamber,                AG, are contrary to the EC Treaty, in particular
Extended Composition), composed of: J. D. Cooke,                    Articles 86, 90, 92 and 93 thereof.
President, and R. García-Valdecasas, P. Lindh, J. Pirrung
and M. Vilaras, Judges; H. Jung, Registrar, made an order
on 23 October 1998, the operative part of which is as               On 19 December 1997, the Commission sent a letter
follows:                                                            stating that it would start proceedings under Article 93(2)
                                                                    of the Treaty at the beginning of next year'. On 10 August
The total amount of the costs to be reimbursed by the               1998, the applicant sent a letter requesting the
Commission to the applicants is fixed in the sum of                 Commission take a position on its complaint against the
DEM 30 000, together with any VAT payable on that                   Federal Republic of Germany under Article 92. On
sum.                                                                2 October 1998, the Commission wrote in response to this
                                                                    request that it would examine' the position and the
(1) OJ C 145, 18.5.1996.                                            behaviour of Deutsche Post AG under Article 86 of the
                                                                    Treaty and would not start Ð at least for the time being
                                                                    Ð a procedure under Article 93 (the contested decision).
                                                                    In support of its application, the applicant puts forward
Action brought on 3 November 1998 by UPS Europe                     four pleas:
NV/SA against the Commission of the European
                         Communities
                       (Case T-182/98)                              1. The Commission has infringed Article 93(2) of the EC
                                                                        Treaty by not initiating a procedure under this article
                        (1999/C 20/55)                                  against the Federal Republic of Germany. In its letter
                                                                        of 19 December 1997, the Commission indicated that
               (Language of the case: English)                          it would start proceedings at the beginning of 1998. In
                                                                        the applicant's view, this statement implies that at that
An action against the Commission of the European                        point in time the Commission had reached the
Communities was brought before the Court of First                       conclusion that it experienced serious difficulties in
 ---pagebreak--- 23.1.1999             EN                 Official Journal of the European Communities                                     C 20/31
    assessing whether the aid measures referred in the              Ð order the Commission and Council to pay the
    complaint were compatible with the common market.                    applicants:
    It therefore follows that the Commission was required
    to initiate a procedure under Article 93(2) and that the
    decision not to do it was unlawful.                                  (a) the individual sums set out in the schedule
                                                                              attached to the application at Annex 7, modified
                                                                              to the date of judgment; and, in the event that no
                                                                              order is made in respect of the applicants'
2. The contested decision of the Commission infringes                         liability for UK taxation on such sums;
    Article 190 of the EC Treaty in so far as it does not
    provide the applicant with an adequate explanation of
    the reasons which led the Commission to alter its                    (b) such further sum as may represent:
    original position.
                                                                              (i)   the sum payable by the applicants in respect
                                                                                    of UK taxation, the quantification of such
                                                                                    sums being adjourned pending negotiation
3. The Commission has infringed the principle of the
                                                                                    between the parties and the UK tax
    protection of legitimate expectations.
                                                                                    authorities; alternatively
                                                                              (ii) the actual liabilities for which the applicants
4. The Commission has infringed the principle of sound                              are liable to the UK tax authorities, the
    administration inasmuch as, in the present case, it has                         Council and Commission being liable to
    not dealt diligently with the applicant's complaint.                            indemnify the applicants in respect of any
                                                                                    such contingent liability; and
                                                                    Ð order the Council and Commission to bear the costs of
                                                                         these proceedings.
Action brought on 19 November 1998 by Dorothy Bell
and Others against the Commission of the European                   Pleas in law and main arguments adduced in support:
  Communities and the Council of the European Union
                       (Case T-184/98)
                                                                    The applicants in the present case are all UKAEA (United
                        (1999/C 20/56)                              Kingdom Atomic Energy Authority) members of the JET
                                                                    Team Staff and they seek damages against the Commission
                                                                    and Council for failure to adopt measures to implement
                                                                    the judgment of the Court of First Instance in Joined
               (Language of the case: English)                      Cases T-177/94 Altmann and Others and T-377/94 Casson
                                                                    and Others, delivered on 12 December 1996 (1), despite
                                                                    being expressly requested to do so.
An action against the Commission of the European
Communities and the Council of the European Union was
brought before the Court of First Instance of the European          Their submissions are in substance the same as those in
Communities on 19 November 1998 by Dorothy Bell and                 Case T-30/98 Altmann and Others (2), save as regards the
Others, represented by Mr Kenneth Parker QC and Mr                  dates from which the applicants maintain that their claim
Rhodri Thompson, Monckton Chambers, 4 Raymond                       for damages commences. Although there are technical
Buildings, Gray's Inn, London WC1R 5BP, United                      differences in the basis for their claims, in that the
Kingdom.                                                            judgment did not annul any decision relating to the
                                                                    applicants in the present case, the applicants maintain that
                                                                    the substance of their claim is identical to that of the
                                                                    claim of the applicants in Case T-30/98 and that the
The applicants claim that the Court should:                         Commission and Council were bound as a matter of
                                                                    Community law to remedy the legal wrong suffered by all
                                                                    the UKAEA members of the JET Team Staff and identified
                                                                    in the judgment or to pay compensation for their failure
Ð declare that the rejection of the applicants' complaint           to do so.
    whereby the Commission and Council failed to take
    any specific measures vis-aÁ-vis the applicants to
    implement the judgment of the Court in Joined Cases             (1) [1996] ECR II-2041.
    T-177/94 and T-377/94 Altmann and Others v.                     (2) OJ C 184, 13.6.1998, p. 11.
    Commission of 12 December 1996 is unlawful and a
    service-related fault for which the Commission and
    Council are liable;