CELEX: C2002/031/28
Language: en
Date: 2002-02-02 00:00:00
Title: Case T-286/01: Action brought on 22 November 2001 by Johannes Priesemann against the European Central Bank

C 31/14                EN                  Official Journal of the European Communities                                       2.2.2002
—     order the Commission to pay the costs incurred by the           The Applicant submits that there is no justification for the
      Applicant in the present proceedings;                           failure of the Commission to act within a reasonable time.
                                                                      The preliminary investigation of the Commission has taken
                                                                      63 months for the first complaint and 16 months for
—     take further action as the Court may deem appropriate.          the second complaint. Moreover, the formal investigation
                                                                      procedure has already taken two years. Consequently, Deutsche
                                                                      Post has been able to profit from illegal state aid without any
                                                                      interference from the Commission for an extremely long
                                                                      period. As a result of this the competitive position of the
                                                                      Applicant as a competitor of Deutsche Post has been seriously
                                                                      affected.
Pleas in law and main arguments
                                                                      (1) OJ C 20, 23.1.1999, p. 30.
                                                                      (2) OJ C 174, 19.6.1999, p. 14.
On 7 July 1994, the Applicant, a company in the United Parcel         (3) Published in the OJ C 306, 23.10.1999, p. 25.
Services Group (UPS), which distributes parcels throughout
the world, lodged a complaint with the Commission alleging
ongoing state aid arising from, among other things, the
covering of losses and cross-subsidisation of the parcel service
by monopoly revenues from Deutsche Post’s letter post
activities; by the same letter a complaint was also filed under
Article 82 of the EC Treaty. On 2 October 1998, the
Commission informed the Applicant that it would examine               Action brought on 22 November 2001 by Johannes
the position and the behaviour of Deutsche Post AG under                     Priesemann against the European Central Bank
Article 82 of the Treaty and would not begin, at least for the
time being, a procedure under Article 88. The Applicant
lodged an Application asking the Court of First Instance to                                    (Case T-286/01)
annul this ‘decision’ (Case T-182/98) (1).
                                                                                                (2002/C 31/28)
On 8 June 1998, the Applicant filed another complaint,                                   (Language of the case: German)
alleging that state aid was involved in the use of monopoly
revenues for the financing of the acquisition of shares of DHL
International. On 21 December 1998 it sent a letter to the
Commission asking it to take a position on its complaint              An action against the European Central Bank was brought
within two months. The period of two months expired without           before the Court of First Instance of the European Communities
the Commission having taken a decision or defined its position        on 22 November 2001 by Johannes Priesemann, residing in
and accordingly the Applicant initiated proceedings under             Frankfurt am Main, Germany, represented by Norbert Pflüger,
Article 232 of the Treaty (Case T-98/99) (2).                         Rechtsanwalt.
                                                                      The applicant claims that the Court should:
By letter of 17 August 1999, the Commission notified the
Federal Republic of Germany of its decision to initiate the           —     set aside the decision of the European Central Bank to
procedure laid down in Article 88(2) of the Treaty (3). The                 refuse the education allowance for the benefit of his three
Application in Case T-182/98 was dismissed as inadmissible                  children, and, if necessary, set aside the decisions of the
(Order of the Fourth Chamber of 30 September 1999) and                      defendant in the preliminary proceedings;
Case T-98/99 was removed from the register (Order of the
President of the Fourth Chamber of 29 October 1999).                  —     order the European Central Bank to pay the costs.
On 5 June 2001, given that the Commission had not taken a             Pleas in law and main arguments
position as to the compatibility with the Common Market of
the measures that are the subject of the two complaints, the
Applicant asked it to define its position and/or take the             The applicant, an employee of the European Central Bank,
measures requested in each of the complaints. The time period         applied for an education allowance to send his three children
of two months within the meaning of Article 232 EC Treaty             to an international school. The defendant refused the appli-
expired on 5 August 2001 without the Commission having                cation on the ground that the applicant did not fulfil the
defined its position with regard to the Applicant’s complaints.       conditions for the allowance, not being already entitled to the
Therefore the Applicant has lodged the present Application.           expatriation allowance.
 ---pagebreak--- 2.2.2002               EN                      Official Journal of the European Communities                                        C 31/15
In support of his claim, the applicant argues that the contested          —     order the Commission to pay to the applicant any amount
decision infringes the principle of equal treatment and thus                    which the Court may deem appropriate by way of
also Article 19 of the Conditions of Employment. The                            compensation for the damage which the applicant has
applicant maintains that, by comparison with the group of                       suffered;
employees entitled to expatriation allowance under Article 17
of the Conditions of Employment, he is being discriminated                —     order the Commission to pay the costs.
against, and that that discrimination is not justified.
The applicant argues that the position is not affected by the             Pleas in law and main arguments
fact that Article 19 of the Conditions of Employment is only a
‘temporary solution’ pending the establishment of a European
School in the Frankfurt am Main area. In this phase also, he              The present application seeks a declaration that, by terminating
maintains, he cannot be treated differently from the employees            the Thermie contract, signed on 22 December 1994 bearing
entitled to expatriation allowance.                                       number BM 1007/1994 IT/DE/UL/PO, for the construction of
                                                                          a thermal power station in Italy, fuelled by plant-based biomass
                                                                          based on a fluidised bed air gasifier on a combined cycle, the
                                                                          Commission acted unlawfully. 40 % of the cost of the contract
The applicant finds it incomprehensible that the education                was originally financed by Community contributions. The
allowance is linked to the existence of a right to expatriation           applicant company, which was coordinating the project,
allowance under Article 17 of the Conditions of Employment.               consisted of five of the seven original parties to the contract in
He argues that the purpose of the education allowance is to               question.
enable all-day schooling to take place, and that it is designed
not to benefit the employee but to support the dependent
child by making a contribution to its maintenance costs.                  The decision to terminate was adopted after a number of
                                                                          problems regarding performance of the contract, in particular
                                                                          with regard to the failure of Lurgi Energie, one of the
                                                                          contractors, to contribute technological support which led the
                                                                          defendant to the conclusion that it would be impossible to
                                                                          complete the programme of work of the project within the
                                                                          agreed time limit.
                                                                          In support of its application the applicant puts forward the
Action brought on 20 November 2001 by Bioelettrica                        following pleas in law:
S.p.A. against the Commission of the European Communi-
                                ties
                                                                          —     failure to give one month’s notice by registered letter;
                        (Case T-287/01)                                   —     failure to notify the termination to all the Contractors;
                                                                          —     infringement of Clause 8(8).2(f) of Annex II to the General
                          (2002/C 31/29)                                        Terms and Conditions of the Contract, inasmuch as that
                                                                                provision provides for the Commission to be able to
                                                                                terminate the contract where the other contracting party
                   (Language of the case: Italian)                              has not commenced work by the date laid down in the
                                                                                contract, bearing in mind that the contract was entered
                                                                                into in December 1994 and that Clause 2.1 of the
                                                                                Contract lays down 1 January 1995 as the date for the
                                                                                commencement of work. According to the applicant, it is
An action against the Commission of the European Communi-                       unbelievable that the Commission should have taken six
ties was brought before the Court of First Instance of the                      years to complain about the failure to commence work;
European Communities on 20 November 2001 by Bioelettrica
S.p.A., represented by Ombretta Fabe Dal Negro,                           —     breach of the general principle of legal certainty with
                                                                                regard to legal relationships with a contractor who may
                                                                                not under any circumstances be subject to unforeseeable
The applicant claims that the Court should:                                     or unspecified consequences either as regards the con-
                                                                                ditions which the parties have imposed on themselves or,
                                                                                even less, the applicable legislation. The applicant points
—     find that, by terminating by letter of 6 September
                                                                                out that this is particularly the case inasmuch as the
      2001 the Thermie contract of 12 December 1994 with
                                                                                unforeseen effect arises from the exercise of an arbitrary
      Bioelettrica S.p.A., the Commission has acted unlawfully,
                                                                                power, which is not provided for either under the law or
      and consequently
                                                                                under the contract, to extinguish the existing contractual
                                                                                relationship by withdrawing on the basis of an improper
—     declare the contract valid and effective; and                             and moreover unfounded ground;