CELEX: C1999/281/42
Language: en
Date: 1999-10-02 00:00:00
Title: Case T-165/99: Action brought on 9 July 1999 by Omega Air Limited and Seven Q Seven Inc. against the Council of the European Union

C 281/22               EN                      Official Journal of the European Communities                                      2.10.1999
Pleas in law and main arguments                                           when fitted by the second applicant (7Q7) with new engines
                                                                          having a by-pass ratio of less than three may not be placed on
The contested decision is the same as that in issue in Case               EU registers as from 4th May 2000 and even if registered
T-107/99 Garcia Retortillo (1). The pleas in law and main                 outside the EU may not be operated to and from EU airports
arguments are the same as those advanced in that case.                    as from 1st April 2002. None of these re-engined 707s would
                                                                          be ready for registration in the EU before 4th May 2000. This
                                                                          is despite the fact that these re-engined 707s would meet noise
The applicant pleads, in support of his application, infringe-            pollution emission standards applicable to other aeroplanes
ment of Article 7 of Protocol No 2 annexed to the Treaty of               whose continued operation is permitted under the contested
Amsterdam, of Articles 27 and 39 of the Staff Regulations and             regulation.
of the principle of non-discrimination, together, in the present
case, with an error of law committed by the Council in the
formulation of the decision of 1 May 1999. That error consists,
in particular, in the absence of any objective justification for          The applicants contend in this regard that the by-pass criterion
using the date of 2 October 1997 as a criterion for taking into           does not determine the noise or pollution emissions of any
consideration the names of persons working in the Schengen                re-engined aeroplane. The use of a by-pass ratio criterion does
Secretariat for the purposes of their integration into the said           not relate to any justifiable technical objective and should be
General Secretariat, and also in the manner in which the                  considered as arbitrary. Moreover, the regulation imposes no
applicant’s contract for an indefinite period was brought to an           noise standard and would prejudice Omega’s aeroplanes even
end.                                                                      if they were totally silent. They submit that Omega’s aeroplanes
                                                                          as re-engined by 7Q7 will be less, or at least no more, noisy
                                                                          than many aeroplanes permitted to continue in operation in
(1) Not yet published in the Official Journal.                            the EU under the contested regulation, and that they will also
                                                                          produce less pollution emissions than other aircraft that will
                                                                          be allowed to operate for many years in the EU.
                                                                          On this basis, the applicants state that the contested regulation:
Action brought on 9 July 1999 by Omega Air Limited and
Seven Q Seven Inc. against the Council of the European                    — reduces immediately the value of Omega’s fleet of 7Q7 by
                               Union                                           some 30 % at least;
                          (Case T-165/99)                                 — writes off both applicants’ substantial investment in the
                                                                               7Q7 test and recertification programme;
                         (1999/C 281/42)
                                                                          — prevents the implementation of the applicants’ existing
                                                                               re-engining programme for five aircraft which has been
                   (Language of the case: English)                             under way since 1992, and their planned re-engining of
                                                                               other aircraft, with a consequential loss of increased
An action against the Council of the European Union was                        revenue for engined aircraft with the extended life of those
brought before the Court of First Instance of the European                     aircraft; and
Communities on 9 July 1999 by Omega Air Limited and Seven
Q Seven Inc., represented by David Vaughan QC, Aidan                      — causes the applicants loss and damage, including costs
Robertson and Michael Offer, with an address for service in                    incurred in attempting to ensure that the contested regu-
Luxembourg at the Chambers of Faltz & Kremer, 6 rue Heine.                     lation did not exclude aircraft re-engined with engines
                                                                               having a by-pass ratio of less than three.
The applicants claim that the Court should:
— annul Council Regulation (EC) No 925/1999 in so far as it
    applies to re-engined aircraft having a by-pass ratio of less         The applicants contend that the contested regulation infringes
    than three;                                                           the obligation under Article 235 of the Treaty to state the
                                                                          reasons for measures, the general principles of non-
— award damages pursuant to Articles 235 and 288(2) of the                discrimination, proportionality and protection of the legit-
    EC Treaty;                                                            imate expectations, as well as the General Agreement of Tariffs
                                                                          and Trade, the Agreement of Technical Barriers to Trade and
— order the Council to pay the applicants’ costs.                         the Chicago Convention.
Pleas in law and main arguments
The applicants in the present case seek the annulment of the              (1) OJ 1999 L 115 of 4 May 1999, p. 1.
Council Regulation (EC) No 925/1999 (1), in so far as it
prohibits aircraft which have been re-engined with engines
having a by-pass ratio of less than three but allowing them if
the by-pass ratio is three or more. As a result of that regulation,
Boeing 707 aeroplanes owned by the first applicant (Omega)