CELEX: C1997/142/46
Language: en
Date: 1997-05-10 00:00:00
Title: Action brought on 4 March 1997 by Onno Plug against the Commission of the European Communities (Case T-47/97)

No C 142/22            EN                 Official Journal of the European Communities                                   10 . 5 . 97
— in the specific analysis of the compensation paid for              Action brought on 4 March 1997 by Onno Plug against
    each year in the period between 1992 and 1996, the                      the Commission of the European Communities
    Commission provides information which is manifestly                                     ( Case T-47/97)
    inadequate and did not lead evidence in the
    proceedings which would enable it to arrive at the                                       ( 97/C 142/46 )
    conclusions it did,
                                                                                     (Language of the case: French)
— infringement of Article 92 of the Treaty, inasmuch as              An action against the Commission of the European
    the measures complained of by the applicant do not               Communities was brought before the Court of First
    constitute State aid. As regards the granting of                 Instance of the European Communities on 4 March 1997
    compensation, the applicant considers that, even if it is        by Onno Plug, residing in Thonex ( Switzerland),
    accepted ( merely as a working hypothesis ) that                 represented by Georges Vandersanden and Laure Levi, of
    fulfilment by RTP of requirements which justify                  the   Brussels   Bar,  with    an   address  for  service    in
    payment of compensation could be characterized as                Luxembourg at the offices of Fiduciaire Myson Sari, 30,
     'public service requirements', the criteria when                Rue de Cessange .
    determining the remuneration for the provision of
    such 'public service' lead directly to the conclusion            The applicant claims that the Court should :
    that State aid within the meaning of Article 92 of the
    Treaty is involved .                                             — annul the implied decision rejecting his complaint of
                                                                         22 February 1996 and, in so far as is necessary, the
The applicant points out that the option adopted by the                  express decision rejecting his complaint, adopted on
Portuguese legislature manifestly creates objective                      27 November 1996 and notified to him on 2 December
conditions for the breach of the rules on competition.                   1996, in so far as the Commission refused to adopt
                                                                         the decision provided for by Article 19 of the Rules on
— RTP is in direct and immediate competition with SIC                    the Insurance of Officials of the European
    and with TVI ( and is also in competition with other                 Communities against the Risk of Accident and of
    major channels =— in particular European channels —                  Occupational Disease without seeking new expert
    mainly broadcast in Portugal via satellite or                        medical reports,
     distributed by cable )
                                                                     — order the Commission to pay a sum equivalent to 13
                                                                         years of his salary, on the basis that account is to be
— RTP's activity as holder of the concession for a public                taken of the amount of pay to which he would have
     service is an ancillary, marginal activity which                    been entitled on the day of delivery of the judgment
    constitutes a very small part of its programming                     and that interest will be payable on that sum at 8 %
     ( especially of its programmes in periods in which                  per annum from the date of the judgment to be given,
     significant income from advertising is generated ).
                                                                     — order the Commission to pay the entire costs .
— Almost the whole of the 'public service programme' is
     undertaken by RTP's second channel alone, since                 Pleas in law and main arguments adduced in support:
     RTP's Channel 1 is, in practice, exclusively
    commercial ( more commercial than the private                    The applicant, formerly a temporary servant of the
    channels of other European countries, according to the           European Commission, was given retirement with an
     findings of the Commission ).                                   invalidity pension with effect from 1 January 1985 . In
                                                                     1989, he brought an action against the Commission
Besides the question of compensation, the applicant                  relating to the procedure for being invalided out and the
mentions      other  State   measures  in  favour    of  RTP:        relationship between the procedures laid down in
exemptions from charges and taxes, waiver by the Social              Articles 73 and 78 of the Staff Regulations, and for
Security of a charge of Esc 1 206 600 000, late payments             damages . The Court of First Instance of the European
tolerated by Portugal Telecom ( owner of the television              Communities gave judgment on 27 February 1992 ( Case
signal distribution network ) and the conditions of the              T-165/89 Plug v. Commission [ 1992] ECR 11-367).
debenture loan for 1994 .
                                                                     On 22 February 1996, the applicant submitted a request
                                                                     under Article 90 ( 1 ) of the Staff Regulations seeking, in
In the applicant's view, it is clear that the aid granted by         particular, that the Commission take a decision on the
the State to RTP does not fall under any of the                      request for recognition of the occupational nature of his
exemptions provided for in Article 92 ( 2 ) of the Treaty.           disease, in accordance with Article 73 of the Staff
Nor can reliance be placed on Article 90 of the Treaty in            Regulations and the Insurance Rules, without seeking new
order to attempt to demonstrate that the aid of which                expert medical reports .
RTP is the recipient is lawful under Community law.
Moreover, the Commission does not rely on that provision             The applicant contends that the Commission has not
in the contested decisions .
                                                                     granted the request but has made the decision referred to
                                                                     in Article 19 of the Insurance Regulations subject to a new
(') OJ No C 77, 16 . 3 . 1996, p. 14.                                expert medical opinion. The medical reports in the
                                                                     applicant's file contain all the information that is needed
                                                                     for   the   Commission      to   take   that  decision .   The
 ---pagebreak---  10 . 5 . 97           EN                 Official Journal of the European Communities                                 No C 142/23
Commission's position fails to take account of the binding           concerned the unlawful appointment by the Parliament on
authority of the judgment of 27 February 1992, Articles 18           3 July 1989, with effect from 1 June 1989, and its
and 19 of the Insurance Rules and the principle of good              subsequent re-appointment, of another official to the post
management. Having regard to everything on the file, its             of Language Adviser in the Danish Translation Division,
position also constitutes a misuse of powers. Since                  despite the fact that the applicant fulfilled all the necessary
27 February 1992, the Commission has systematically                  conditions and had been proposed for appointment to the
been acting in disregard of the applicant's rights and               post .
contrary to the Insurance Rules, as it had before that date .
The Commission could not legitimately instruct a new                 The applicant complains that the Parliament failed
expert for the purpose of the decision under Article 19 of           correctly to comply with the judgments delivered by the
the Insurance Regulations . In addition the pre-litigation           Court of First Instance and the Court of Justice, that it
procedure was not adhered to since the Commission made               disregarded the consequences of those judgments, and that
its decision on the complaint without convening the                  it refused to acknowledge the unlawfulness of its conduct,
Interdepartmental Group.                                             in that it persisted in such unlawful acts .
As regards the application for damages, the applicant                The Parliament's conduct has adversely affected the career
contends that the persistently unlawful behaviour of the             progress of the applicant, who is seeking, on a provisional
Commission over 13 years, since the application made on              basis, compensation for the material damage suffered in
24 January 1984, or at the very least over five years, since         the sum of Bfrs 6 000 000, corresponding to the difference
the judgment of 27 February 1992, has had a detrimental              in his salary and related allowances over the period from
effect on his physical and psychological health.                     1 June 1989 until the date of the applicant's retirement.
                                                                     Moreover, the applicant has suffered considerable non­
                                                                     material damage, estimated in the sum of Bfrs 5 000 000,
                                                                     because the Parliament's conduct has seriously affected his
                                                                     health,    in  that   he     has   contracted  three   illnesses
Action brought on 4 March 1997 by Erik Dan Frederiksen               acknowledged by the appointing authority as being serious
                against the European Parliament                      illnesses within the meaning of Article 72 ( 1 ) of the Staff
                         ( Case T-48/97 )                            Regulations .
                           ( 97/C 142/47
                 (Language of the case: French)
An action against the European Parliament was brought                Action brought on 4 March 1997 by TAT European
before the Court of First Instance of the European                   Airlines against the Commission of the European
Communities on 4 March 1997 by Erik Dan Frederiksen,                                            Communities
residing at Howald ( Luxembourg ), represented by Georges                                    ( Case T-49/97)
Vandersanden, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Fiduciaire Myson                                       ( 97/C 142/48 )
Sari, 30 Rue de Cessange .
                                                                                     (Language of the case: French)
The applicant claims that the Court should:
                                                                     An action against the Commission of the European
— award the applicant, on a provisional basis,                       Communities was brought before the Court of First
      compensation for the material damage suffered in the           Instance of the European Communities on 4 March 1997
      estimated sum of Bfrs 6 000 000,                               by TAT European Airlines, established at Tours ( France ),
                                                                     represented by Romano Subiotto, of the Law Society of
                                                                     England and Wales, and Nicholas Levy, of the Bar of
— award the applicant compensation for the non­                      England and Wales, with an address for service in
      material damage suffered, estimated on an equitable            Luxembourg at the Chambers of Elvinger & Hoss, 15
      basis to amount to the sum of Bfrs 5 000 000,                  Cote d'Eich .
— order the European Parliament to pay all the costs.                The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                  — annul the contested communication pursuant to
                                                                          Article 173 of the Treaty, primarily on account of
The applicant has previously brought a number of actions                  infringement of essential procedural requirements and,
against the European Parliament ( for example, Case                       in the alternative, by reason of manifest errors of
                                                                          assessment,
T-169/89, reported at [ 1991 ] ECR 11-1403 , and Case
T-106/92 , reported at [ 1995] ECR SC 11-99, an abstract of
which appears at [ 1995] ECR-SC I-A-29 ), all of which               — order the Commission to pay the costs .