CELEX: C2002/247/23
Language: en
Date: 2002-10-12 00:00:00
Title: Case T-215/02: Action brought on 15 July 2002 by Santiago Gómez-Reino against the Commission of the European Communities

12.10.2002             EN                      Official Journal of the European Communities                                           C 247/13
                                                        COURT OF FIRST INSTANCE
Action brought on 2 July 2002 by the Congrès National                     is composed. Moreover, the contested decision, which is
 du Kurdistan against the Council of the European Union                   tantamount to a penalty, was enacted without the slightest
                                                                          statement of reasons, thereby infringing essential procedural
                                                                          requirements.
                         (Case T-206/02)
                         (2002/C 247/22)                                  Furthermore, the applicant contends that the contested
                                                                          decision is founded on a substantive factual error in so far as
                                                                          the PKK dissolved itself before the contested decision was
                   (Language of the case: French)                         adopted and since 1999 at least has been advocating non-
                                                                          violent action. The decision is also vitiated by a manifest error
                                                                          of assessment inasmuch as it seriously prejudices the freedom
                                                                          of expression guaranteed by the European Convention for
An action against the Council of the European Union was                   Human Rights.
brought before the Court of First Instance of the European
Communities on 2 July 2002 by the Congrès National
du Kurdistan (Kurdistan National Congress), established in                (1 ) Council Decision 2002/334/EC of 2 May 2002 implementing
Brussels, represented by Jérôme Boisseau, Lawyer.                              Article 2(3) of Regulation (EC) No 2580/2001 on specific
                                                                               restrictive measures directed against certain persons and entities
                                                                               with a view to combating terrorism and repealing Decision 2001/
The applicant claims that the Court should:                                    927/EC (OJ 2002 L 116, p. 33).
                                                                          (2 ) OJ 2002 L 344, p. 70.
—     hold that Council Decision 2002/334/EC of 2 May
      2002 ( 1) adversely affects the applicant’s reputation, name
      and credibility;
—     find that the contested decision proceeds from a substan-
      tive error in that it refers to the PKK in the list of legal
      persons covered by the Community measures to combat
                                                                          Action brought on 15 July 2002 by Santiago Gómez-
      terrorism;
                                                                          Reino against the Commission of the European Com-
                                                                                                         munities
—     declare that the contested decision is manifestly vitiated
      by an error of assessment in that it denies a political party
      the means of expressing itself freely;                                                         (Case T-215/02)
—     for all those reasons, partially annul the contested                                           (2002/C 247/23)
      decision;
—     order the Council to pay a sum of EUR 10 000 in respect                                  (Language of the case: French)
      of irrecoverable expenditure incurred by the applicant.
                                                                          An action against the Commission of the European Communi-
Pleas in law and main arguments                                           ties was brought before the Court of First Instance of the
                                                                          European Communities on 15 July 2002 by Santiago Gómez-
                                                                          Reino, resident in Brussels, represented by Marc-Albert Lucas,
The applicant seeks the annulment of Council Decision 2002/               Lawyer.
334/EC of 2 May 2002. That decision refers to the PKK (the
Kurdistan Workers’ Party) in the updated list of persons,
groups and entities to which Council Regulation (EC) No 2580/             The applicant claims that the Court should:
2001 of 27 December 2001 on specific restrictive measures
directed against certain persons and entities with a view to              —      find that the European Anti-Fraud Office acted unlawfully
combating terrorism (2) is applicable.                                           by not notifying him of a decision to open investigations
                                                                                 concerning him individually, not informing him of
                                                                                 investigations liable to implicate him and not enabling
The applicant contends that that reference adversely affects the                 him to express his views on all the facts concerning him
reputation and credibility of the action engaged in by it and                    before conclusions referring to him personally were
numerous independent associations and persons of which it                        drawn from the investigations;
 ---pagebreak--- C 247/14              EN                     Official Journal of the European Communities                                     12.10.2002
—   annul the decisions of the Director of the European Anti-           —     annul the express decision of the Commission of 8 April
    Fraud Office and of the Commission disclosed by the                       2002 rejecting the applicants’ complaints against the
    Commission press release of 26 February 2002 to open                      decisions and failures to take measures imposed by the
    or reopen, in September 2001, investigations concerning                   Staff Regulations which he asks to be annulled or found
    the ECHO case or the procedure to which that case gave                    unlawful, or rejecting his requests for the measures
    rise, or as to the existence of new evidence in that case;                required by the Staff Regulations to be taken in relation
                                                                              to him;
                                                                        —     order the Commission to pay him EUR 1 000 000 in
                                                                              compensation for non-material damage and harm to his
—   annul the decision of the Director of the European Anti-
                                                                              career, assessed provisionally, together with interest at
    Fraud Office disclosed by the Commission press release                    8 % per annum from 1 March 2002 until full payment;
    of 28 February 2002 to open a formal investigation
    against former officials of the Unit for the Coordination
    of Fraud Prevention;                                                —     order the Commission to pay the costs.
—   annul the unnotified and unpublished decision of the
    Director of the European Anti-Fraud Office, which is                Pleas in law and main arguments
    apparent from the document presented by the Vice-
    President of the Commission to COCOBU (the Committee
    on Budgetary Control) at its meeting on 11 March and
    from his letters of 12 and 15 April to the chairman of              By the present action the applicant seeks, in particular,
    that committee, to open an investigation into alleged               annulment of: (i) the decisions to reopen investigations
    procedural manipulations in the ECHO case attributable              concerning the European Community Humanitarian Office
    to a ‘cartel of senior officials’ supposedly including the          (ECHO) case because allegedly new facts had arisen and
    applicant;                                                          subsequently to open a formal investigation against former
                                                                        officials of the Unit for the Coordination of Fraud Prevention
                                                                        (UCLAF) and the applicant; and (ii) of the Commission decision
                                                                        refusing the applicant’s request for assistance with regard to
                                                                        statements published in the press which in the applicant’s view
—   annul the unpublished and unnotified decision of the                are defamatory because they call his professional probity into
    Director of the European Anti-Fraud Office, which is                question.
    apparent from the same documents, to reopen an investi-
    gation against the applicant in the ECHO case on the
    basis of supposedly new evidence in that case, capable of
    justifying the reopening or the resumption of disciplinary          In support of his claims, the applicant pleads:
    proceedings against him;
                                                                        —     infringement of the second paragraph of Article 25 of the
                                                                              Staff Regulations, of rights of the defence and of Article 4
                                                                              of Commission Decision 1999/396/EC, ECSC, Eura-
                                                                              tom ( 1), in that he was not notified of a decision to open
—   annul the decision of the Commission which was notified
    to him by a letter from its Vice-President of 8 April 2002,               an investigation concerning him individually, was not
    in so far as it rejects his requests for assistance made on               informed of the possibility of his implication in past or
                                                                              current investigations, was not informed of the allegations
    8 March 2002 or earlier or does not meet its obligation
    to supply that assistance automatically by appropriate                    made against him and was not invited to express his
                                                                              views on all the facts concerning him before conclusions
    means;
                                                                              referring to him by name were drawn from the investi-
                                                                              gations;
                                                                        —     infringement of the principles of certainty and of the
—   annul the implied decision of the Director of the European                protection of legitimate expectations, in that the European
    Anti-Fraud Office of 7 July 2002 rejecting the applicant’s                Anti-Fraud Office, with the agreement of the Com-
    complaints of 8 March against the decisions and failures                  mission, regarded as new matters capable of justifying the
    to take measures imposed by the rules of law applicable                   reopening of formal investigations or fresh disciplinary
    to the Office which he asks to be annulled or found                       measures against the applicant matters which the Com-
    unlawful, or rejecting his requests for the measures                      mission had precluded from being such in previous
    required by the rules of law applicable to the Office to be               decisions, specifically in the decisions following Case
    taken in relation to him;                                                 T-108/00 R Gómez-Reino v Commission (2);
 ---pagebreak--- 12.10.2002                EN                       Official Journal of the European Communities                                      C 247/15
—      infringement of the principle of legality of administrative            Pleas in law and main arguments
       action and of the first subparagraph of Article 4(1) of
       Regulation No 1073/1999 of the European Parliament
       and of the Council ( 3), in that the investigations of the
       European Anti-Fraud Office were opened or reopened on                  The applicant was involved as a shareholder in three companies
       the basis of information obtained in breach of the secrecy             under the name Verlipack. When it became a shareholder in
       of the proceedings of the Disciplinary Board which is to               those companies it assumed responsibility for repurchasing a
       be observed under the second paragraph of Article 6 of                 specified number of shares from the public authorities. In
       Annex II to the Staff Regulations, in conjunction with a               1991 the authorities concerned insisted on compliance with
       breach of the obligation of discretion laid down for                   this obligation of repurchase and the applicant accordingly
       officials by the second paragraph of Article 17 of the                 found itself obliged to buy back the shares. Repurchase was
       Staff Regulations and for members of the Commission by                 spread over several years.
       Article 287 of the EC Treaty.
                                                                              In 1996 the Regional Authority for Wallonia pressed for
( 1) Decision of 2 June 1999 concerning the terms and conditions for          accelerated repurchase of those shares by the applicant. The
     internal investigations in relation to the prevention of fraud,          latter thereupon took over the shares from the Regional
     corruption and any illegal activity detrimental to the Communities’      Authority for Wallonia, which thereby obtained an outstand-
     interests (OJ 1999 L 149, p. 57).                                        ing claim against the applicant. According to the applicant,
( 2) That case was brought to a close by an order of removal from the         the purchase had no economic significance for it and the
     register of 3 July 2000 (OJ 2000 C 259, p. 31).                          shares were of no value to it. The shares, however, had to be
( 3) Regulation of 25 May 1999 concerning investigations conducted            bought for a fixed price. The applicant also derived no
     by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).
                                                                              advantage whatever from the shares as they were shortly
                                                                              afterwards brought into a separate company over which the
                                                                              applicant had no control.
                                                                              In 1998 the Regional Authority for Wallonia reached agree-
                                                                              ment with the applicant that it would transfer its shares in
                                                                              Verlipack Holding II to that Authority. In exchange, the claim
                                                                              which that Authority held against the applicant would lapse.
Action brought on 22 July 2002 by Ter Lembeek Inter-
national N.V. against the Commission of the European
                              Communities
                                                                              The decision under challenge treats this latter agreement as
                                                                              constituting State aid and as being incompatible with the
                                                                              Common Market. That decision states that the shares given in
                            (Case T-217/02)
                                                                              payment were at that moment in fact worthless. The Regional
                                                                              Authority for Wallonia thus permitted its claim against the
                                                                              applicant to lapse without receiving any consideration. The
                            (2002/C 247/24)
                                                                              decision accordingly also takes the view that the applicant
                                                                              obtained free of cost the shares which it was required to
                                                                              purchase from the Regional Authority for Wallonia in 1996.
                       (Language of the case: Dutch)
                                                                              According to the applicant, the decision under challenge
                                                                              breaches Article 87(1) EC and Articles 7 and 13 of Regulation
An action against the Commission of the European Communi-                     No 659/1999. (1) It argues that no benefit was obtained. In its
ties was brought before the Court of First Instance of the                    view, the economic value of the shares when they were
European Communities on 22 July 2002 by Ter Lembeek                           repurchased in 1996 was nil, or even negative, and it also
International N.V., having its registered office in Wielsbeke                 derived no advantage from those shares. Moreover, according
(Belgium), represented by Jean-Pierre Vande Maele, Frank                      to the applicant, it was not the beneficiary of any aid measure,
Wijckmans and Filip Tuytschaever.                                             as it held the shares only for a very short period of time. It
                                                                              goes on to submit that there was no distortion of competition.
                                                                              According to the decision under challenge, competition was
                                                                              distorted within the textiles sector, whereas the alleged aid
The applicant claims that the Court should:                                   measure was granted within the glass sector.
1.     Annul Articles 1 and 2 of the Commission decision of
       24 April 2002 concerning State aid granted by Belgium
                                                                              The applicant pleads, second, an infringement of the pro-
       to the Beaulieu Group (Ter Lembeek International);
                                                                              portionality principle and Article 14 of Regulation No 659/
                                                                              1999. In its opinion, the requested repayment of the aid bears
2.     Order the defendant to pay the costs.                                  no relation to the advantage allegedly enjoyed.