CELEX: C2002/289/65
Language: en
Date: 2002-11-23 00:00:00
Title: Case T-295/02: Action brought on 27 September 2002 by Koninklĳke BAM NBM N.V. v Commission of the European Communities

23.11.2002             EN                      Official Journal of the European Communities                                     C 289/35
Action brought on 25 September 2002 by Miguel Vicente-                           has or will have received since 1 April 2000 as pay and
Núñez against Commission of the European Communities                             subsequently as retirement pension, in view of his
                                                                                 classification as Grade A5/3+1 on 1 April 2000, and the
                                                                                 total of the amounts which he should have received, on
                        (Case T-294/02)                                          the same grounds and during the same period had he
                                                                                 been reclassified in Grade A5/2+6 on 1 April 1998,
                                                                                 minus, if appropriate, the compensation already paid to
                        (2002/C 289/64)                                          the applicant for the same reason;
                                                                          In any event:
                   (Language of the case: French)
                                                                          —      order the Commission to pay to the applicant
                                                                                 EUR 5 000 as compensation for the non-material damage
                                                                                 caused to him by the unlawful nature of the contested
                                                                                 decisions;
An action against the Commission of the European Com-                     —      order the Commission to pay the costs.
mission was brought before the Court of First Instance of the
European Communities on 25 September 2002 by Miguel
Vicente-Núñez, residing in Krainem (Brussels), represented by
Marc-Albert Lucas, lawyer.                                                Pleas in law and main arguments
                                                                          The applicant in the present case, like the applicant in Case
The applicant claims that the Court should:                               T-10/99 (1), challenges the manner in which, in compliance
                                                                          with the judgment delivered in that case, the appointing
                                                                          authority finally decided to appoint him to Grade A 5, Step 3,
—    annul the decision of 17 October 2001 of the appointing              while fixing his period of service in that grade by reference to
     authority to promote the applicant to Grade A5/3+1 with              1 March 2000 rather than to 1 April 1998.
     effect from 1 April 2000 rather than to Grade A5/2+6
     on 1 April 1998;
                                                                          In support of his arguments, the applicant puts forward a
                                                                          single plea in law in which he alleges breach of the obligation
—    order the Commission to pay to the applicant by way of               to comply with the aforementioned judgment and of the
     compensation for the harm done to his career arising                 principles of equal treatment and that officials should have
     from the contested decisions an amount corresponding                 reasonable career prospects, inasmuch as the contested
     to the difference between the total remuneration received            decision leaves in place, for the period between 1 April 1998
     since 1 April 2000 until the judgment in the present case            and 1 March 2000, certain unlawful aspects criticised by the
     is delivered and the total remuneration which he should              Court of First Instance, by placing him in a less favourable
     have received during the same period if he had been                  position than his colleagues who were promoted to Grade A 5
     reclassified to Grade A5/2+6 on 1 April 1998, minus, if              during the 1998 promotion procedure for promotion from
     appropriate, the compensation already paid to the appli-             one career bracket to the next and by reducing his chances of
     cant for the same reason;                                            being promoted earlier to a higher grade.
—    order the Commission to pay to the applicant default                 (1 ) T-10/99 Vicente Núñez v Commission [2000] ECR-SC I-A-47; II-
     interest at the rate of 8 % per annum on that amount,                     203.
     with effect from the date on which that remuneration
     should have been paid to him until full payment.
In the alternative:
                                                                          Action brought on 27 September 2002 by Koninklijke
—    annul the decision of 11 June 2002 of the appointing                 BAM NBM N.V. v Commission of the European Communi-
     authority following the administrative complaint of                                                   ties
     30 January 2002 inasmuch as it grants the applicant
     compensation of EUR 1 000 for non-material damage
     and harm to his career which leaves in place its decision                                      (Case T-295/02)
     of 17 October 2001 to promote him to Grade A5/3+1
     on 1 April 2000 rather than to Grade A5/2+6 on 1 April                                         (2002/C 289/65)
     1998;
                                                                                               (Language of the case: Dutch)
—    order the Commission to pay to the applicant, by way of
     making good the non-material damage caused to him as
     a result of the contested decisions, an amount correspond-           An action against Commission of the European Communities
     ing to the difference between the total of the amounts he            was brought before the Court of First Instance of the European
 ---pagebreak--- C 289/36              EN                     Official Journal of the European Communities                                    23.11.2002
Communities on 27 September 2002 by Koninklijke BAM                     The applicant also claims infringement of Article 9(3) of
NBM N.V., whose registered office is in the Hague (Nether-              Regulation No 4064/89 concerning the market for the pro-
lands), represented by E.H. Pijnacker Hordijk and G.W.H. Cor-           duction of asphalt. The Commission omitted to indicate the
stens.                                                                  specific regional markets on which there would be negative
                                                                        consequences for competition.
The applicant claims that the Court should:
                                                                        Furthermore, the applicant claims infringement of the principle
                                                                        of the right to a fair hearing and the obligation to state
1.    Annul the Commission Decision of 3 September 2002                 reasons. The Commission bases its finding concerning the
      pursuant to Article 9(3) of Regulation (EEC) No 4064/89           consequences of the concentration for the civil and utility
      in Case COMP/M.2881-BAM NMB/HBG;                                  construction sectors, on the one hand, and the earth-moving,
                                                                        hydraulic engineering and road construction sectors, on the
                                                                        other, on the results of a survey. The applicant states that it
2.    Order the Commission to pay the costs.                            was never able to inspect that information and was unable to
                                                                        comment on it.
                                                                        Finally, the applicant claims infringement of the obligation to
Plea in law and main arguments                                          state reasons with regard to the markets for the production of
                                                                        asphalt.
The applicant notified the Commission of its planned acqui-             (1 ) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
sition of the Hollandsche Beton Group N.V. Both undertakings                 the control of concentrations between undertakings (OJ 1989
are active in the construction sector and in related markets.                L 395, p. 1) (corrected version published in OJ 1990 L 257,
                                                                             p. 13).
By the contested decision, the Commission, at the request of
the Netherlands Minister for economic affairs, referred the case
to the Netherlands competition authority as regards the
construction sector and the regional asphalt markets. As
regards the other activities of the applicant and of Hollandsche
Beton Group, the planned concentration was approved by a
Commission decision of the same date pursuant to
Article 6(1)(b) of Regulation No 4064/89 (1).                           Action brought on 27 September 2002 by Lidl Stiftung &
                                                                        Co. KG against the Office for Harmonisation in the
                                                                                  Internal Market (Trade Marks and Designs)
In support of its application the applicant submits, first, that
in its referral decision the Commission made a manifestly                                         (Case T-296/02)
incorrect appraisal of the facts. According to the applicant, the
Commission errs in finding that the applicant and Hollandsche
Beton Group N.V. have a joint market share of more than                                           (2002/C 289/66)
25 % on the relevant market for major works.
                                                                        (Language of the case: to be determined pursuant to Article 131(2)
                                                                        of the Rules of Procedure — Language in which the application has
The applicant also submits that the contested decision infringes
                                                                                                been drafted: German)
Article 9(3) of Regulation No 4064/89. The Commission
misappraises the effects of the concentration on the civil and
utility construction sectors, on the one hand, and the earth-
moving, hydraulic engineering and road construction sectors
on the other hand. In particular the market shares of the
                                                                        An action against the Office for Harmonisation in the Internal
applicant and of Hollandsche Beton Group for major projects
                                                                        Market (Trade Marks and Designs) was brought before the
in those sectors are much smaller than the Commission
                                                                        Court of First Instance of the European Communities on
concludes. Projects of that kind are implemented by various
                                                                        27 September 2002 by Lidl Stiftung & Co. KG, of Neckarsulm
undertakings which work together on one project. According
                                                                        (Germany), represented by Peter Gross, Rechtsanwalt.
to the applicant, the Commission erred in completely attribu-
ting to the applicant and Hollandsche Beton Group the market
shares of those groups of undertakings in which they took
part, without taking into account the other undertakings                A further party to the proceedings before the Board of Appeal
cooperating with them.                                                  was REWE-Zentral AG, of Cologne (Germany).