ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

1 June 1994

Case T-4/93

Christian André

v

Commission of the European Communities

‛Officials — Rejection by general meeting of staff of a proposed amendment to the Rules of the local Staff Committee — Application for annulment’

Full text in French II-471

Application for:

the annulment of the ‘decision’ adopted by the extraordinary general meeting of Commission staff in Luxembourg on 31 March 1992 and not amending Article 5 of the Rules of the local Staff Committee and, subject to the requirements of legal certainty, for annulment of all measures taken in application of that ‘decision’.

Decision:

Application dismissed.

Abstract of the Judgment

A proposal to revise Article 5 of the Rules of the Staff Committee was rejected by the extraordinary general meeting of Commission staff for failure to attain a two-thirds majority of the members present. The applicant lodged a complaint against that ‘decision' not to amend the provision in question and brought the present action after the implied rejection of his complaint.

Admissibility

Claims for the annulment of the ’decision' of the general meeting of 31 March 1992 and of the implied decision to reject the applicant's complaint

Since the conditions of admissibility of an action are a matter of public policy, the Court of First Instance may, in accordance with Article 113 of its Rules of Procedure, consider of its own motion whether the action is for the annulment of a measure against which proceedings may be brought for the purposes of Article 91(1) of the Staff Regulations (paragraph 16).

See: 6/60 Humblet v Belgium [1960] ECR 559, p. 570; T-130/89Ő. v Commission [1990] ECR II-761; T-29/93 Calvo Alonso-Cortés v Commission [1993] ECR II-1389, para. 40

That is not the case here because the proposal to amend Article 5, cited above, did not receive the approval of the required majority and the general meeting cannot therefore be deemed to have adopted a measure producing legal effects in relation to that provision (paragraphs 16, 18 and 19).

The Court also dismisses the claim for annulment of the implied decision rejecting the complaint as inadmissible, because such a decision, whether implied or express, does not on its own constitute a measure against which an action lies (paragraph 21).

See: 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 9; T-14/91 Weyrich v Commission [1991] ECR II-235, para. 43

The claim for the annulment of the measures taken in application of the ‘decision' of the general meeting on 31 March 1992

Since the applicant's complaint does not concern the measures taken in application of the ’decision' in question, the claim for the annulment of those measures is inadmissible as they were not the subject of a pre-litigation procedure in accordance with Article 90 of the Staff Regulations (paragraph 25).

Operative part:

The application is inadmissible.
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Accession of new Member States to the Communities ° Spain ° Portugal ° Fisheries ° Continuation of fishing activities resulting from agreements concluded with non-member countries ° EEC-Morocco agreement on relations in the sea fisheries sector ° Submission of requests for fishing licences to the Moroccan authorities ° Priority given to Spanish and Portuguese fishermen ° Breach of the prohibition of discrimination on grounds of nationality ° None

(EEC Treaty, Art. 7; Act of Accession 1985, Arts 167(3) and 354(3); Council Regulation No 3760/92)

Summary

Articles 167(3) and 354(3) of the Act of Accession of Spain and Portugal, read in the light of the other provisions of the chapters to which they belong, of the preparatory documents and of Regulation No 3760/92 establishing a Community system for fisheries and aquaculture, require the Council to continue the fishing activities in which Spain and Portugal were engaged on the basis of fisheries agreements concluded by them with non-member countries before their accession to the Communities. It follows that, when submitting requests for fishing licences to the Moroccan authorities in accordance with the 1992 agreement on relations in the sea fisheries sector between the Community and Morocco, the Commission was right to give priority to Spanish and Portuguese fishermen, in so far as that agreement did not create fishing possibilities exceeding those used by Spanish and Portuguese fishermen on the basis of the bilateral agreements referred to in Articles 167(1) and 354(1) of the Act of Accession.

That priority is not contrary to the prohibition of discrimination on grounds of nationality laid down in Article 7 of the Treaty. Fishermen who did not have fishing activities in a given zone are not in the same position as those who had fishing activities in that zone and the difference between their situations is justification for giving priority to the latter in the allocation of fishing licences for the zones in question. The requirements of the Act of Accession thus concur with those of the principle of equal treatment, the distinguishing criterion applicable being imposed by Articles 167(3) and 354(3) of that Act.
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Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Commission decision, taken following a proposal by a Member State, to reduce assistance from the European Social Fund for a training programme

(EEC Treaty, Art. 190)

Summary

The purpose of the obligation to state the reasons on which an individual decision is based, set out in Article 190 of the Treaty, is to enable the Community judicature to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested. The extent of that obligation depends on the nature of the measure in question and on the context in which it was adopted.

In the case of a decision reducing the amount of assistance initially granted by the European Social Fund, such a decision must, in view in particular of the fact that it has serious consequences for the person benefiting from the assistance, either clearly set out itself the reasons which justify a reduction of the amount of the assistance initially granted or, failing that, and bearing in mind the system of close collaboration between the Commission and the Member States on which the grant of such assistance is based, refer with sufficient clarity to a measure of the competent national authorities of the Member State concerned in which those authorities set out clearly the reasons for such a reduction.
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Non-contractual liability ° Conditions ° Unlawfulness ° Damage ° Causal link ° Concept ° Burden of proof

(EC Treaty, Art. 215, second para.)

Summary

In order for the Community to incur non-contractual liability under the second paragraph of Article 215 of the Treaty, a set of conditions must be fulfilled: the conduct alleged against the Community institutions must be unlawful, actual damage must have been incurred and a causal link must exist between the conduct and the alleged damage.

There is a causal link for the purposes of the second paragraph of Article 215 of the Treaty where there is a direct causal link between the fault committed by the institution concerned and the injury pleaded, the burden of proof of which rests on the applicants.
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1. Economic and Social Committee ° Procedure for appointing members ° Council' s duty to check the representative character of all the candidates appearing on the national lists ° Council' s discretion ° Review by the Court ° Limits ° Duty to consult the Commission regarding appointments envisaged ° Scope

(EC Treaty, Art. 195(1) and (2))

2. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Council decision appointing the members of the Economic and Social Committee

(EC Treaty, Arts 190, 194 and 195; Council Decision 94/660)

Summary

1. As part of the procedure for appointing the members of the Economic and Social Committee (ESC), the Council must, in order to verify whether, in accordance with Article 195(1) of the Treaty, the composition of the ESC ensures at the Community level adequate representation of the various categories of economic and social activity, assess for itself the representative character of all the candidates appearing on the national lists, and it must not consider itself bound by any distinction made by the Member States between candidates proposed as principal candidates and those proposed as alternative candidates. In order to make such an assessment, the Council enjoys a wide discretion; consequently, when exercising its power of review, the Court may only verify whether the Council has used its power in a manifestly erroneous manner.

The Council' s duty under Article 195(2) of the Treaty to consult the Commission must concern the choices which it intends to make on the basis of the national proposals and not those proposals themselves.

2. The statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and the Court to exercise its power of review.

In addition to the general considerations set out in its preamble, Council Decision 94/660 appointing the members of the ESC lists by Member State the names of the persons appointed to the ESC and in each case indicates below the person' s name the office or membership held, thus making it possible to determine the economic or social interests each is able to represent on the ESC. By so doing, it justifies the choice of members by reference to the representativity requirements laid down in Articles 194 and 195 of the Treaty, and therefore provides an adequate statement of reasons.
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1 ECSC - Agreements, decisions and concerted practices - Undertaking - Concept - Economic unit

(ECSC Treaty, Art. 65(1); EC Treaty, Art. 85(1))

2 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement by a subsidiary - Administrative support from the parent company - Subsidiary may be held responsible

(ECSC Treaty, Art. 65(1))

3 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Cases in which the fine is fixed by the Community judicature - Unlimited jurisdiction

(ECSC Treaty, Art. 36, second para.)

Summary

1 Like the prohibition in Article 85(1) of the EC Treaty, the prohibition in Article 65(1) of the ECSC Treaty is aimed, inter alia, at `undertakings'. The concept of an undertaking within the meaning of Article 85 of the EC Treaty must be understood as referring to an economic unit consisting of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision. The same applies to Article 65 of the ECSC Treaty.

2 According to the case-law, in consideration of the unity of the economic group formed by a parent company and its subsidiaries, the acts of the subsidiaries may in certain circumstances be imputed to the parent company, especially where the subsidiary, although having separate legal personality, does not determine its market conduct independently but in all material respects carries out the instructions given to it by the parent company. Likewise, the company responsible for coordinating the action of a group of companies may be held answerable for the infringements committed by the companies in the group, even where they are not subsidiaries in the legal sense of the word.

Having regard to the fundamental concept of economic unity which underlies that case-law, the latter may be applied to the opposite situation. The Commission is therefore justified in imputing the conduct of the parent company to the subsidiary where the latter appears to be the principal author and beneficiary of the infringements which occurred, whereas the parent company confined itself to the accessory role of providing the administrative assistance which facilitated the commission of the infringements by the subsidiary, and had no decision-making power or freedom of initiative.

3 By its nature, the fixing of a fine by the Court of First Instance in the exercise of its unlimited jurisdiction is not an arithmetically precise operation. Moreover, the Court is not bound by the Commission's calculations, but must carry out its own assessment, taking all the circumstances of the case into account.
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Procedure - Application originating proceedings - Formal requirements - Identification of subject-matter of the proceedings - Summary of the pleas relied on - Application seeking compensation for damage caused by a Community institution

(EC Statute of the Court of Justice, Art. 19; Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

Summary

Under Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance all applications must indicate the subject-matter of the proceedings and include a brief statement of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court of First Instance to decide the case, if appropriate without other information. In order to ensure legal certainty and the sound administration of justice, for an action to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible.

In order to satisfy those requirements, an application seeking compensation for damage caused by a Community institution must state the evidence on which the alleged conduct of the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage.
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Common commercial policy - Protection against dumping - Review procedure - Period of application of anti-dumping duties - Council's discretion

(Council Regulations No 2423/88, Art. 15(1), (2), (3) and (4), and Nos 535/87 and 3283/94)

Summary

In the light of the wording, historical origin, structure and purpose of basic anti-dumping Regulation No 2423/88, Article 15(1) thereof must be construed as allowing the Council a discretionary power to fix at less than five years the period of application of definitive anti-dumping duties adopted following a procedure for the review of the measures initially adopted if, owing to special circumstances, such a limitation best serves to protect the differing interests of the parties to the procedure and maintain the equilibrium between those interests which the basic regulation seeks to establish.

Where the unusual length of the review affects the legal situation of the parties to the procedure to the detriment of the undertakings subject to the anti-dumping measures, it constitutes a factor capable of justifying limitation of the period during which definitive anti-dumping measures adopted following that procedure are to apply.

In those circumstances, the Council did not exceed the limits of its discretion in deciding that in view of the length of the review procedure a period of application of two years for Regulation No 2380/95 imposing a definitive anti-dumping duty on imports of plain paper photocopiers originating in Japan was reasonable.

Moreover, limiting the period of operation of Regulation No 2380/95 to two years did not impair the rights available to the Community industry in order to combat absorption or circumvention of the anti-dumping duty.

Regulation No 3283/94 on protection against dumped imports from countries not members of the European Community does not permit the adoption of definitive anti-dumping measures for a period exceeding five years and it is therefore inevitable that, after three years at the most, the definitive anti-dumping measures will lapse within two years or less if no application for review is made. It follows that even if it is difficult in practice for the Community industry to avail itself of the procedures which are designed to protect it against attempts to absorb and/or circumvent the anti-dumping duty when the anti-dumping measures are to lapse within two years, that situation is dictated by the rules established by the basic regulation.
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Non-contractual liability - Conditions - Unlawful conduct of the institutions - Milk producers deprived of reference quantities under the additional levy scheme following their suspension of deliveries under non-marketing premium arrangements - Where a producer did not voluntarily resume production on expiry of his non-marketing undertaking - Breach of the principle of protection of legitimate expectations - No such breach

(Council Regulations Nos 1078/77 and 857/84)

Summary

The Community cannot be deemed to have incurred liability merely by virtue of the application of Regulation No 857/84 (fixing, in the context of the additional levy scheme, the reference quantity for each milk producer on the basis of the production delivered during a particular reference year) to a milk producer who, upon the expiry during the reference year of a non-marketing undertaking signed pursuant to Regulation No 1078/77, did not resume production immediately - for reasons unconnected with the non-marketing undertaking - and evinced no intention of resuming production until several years later.

That producer was not unlawfully prevented from resuming his activities at the end of the non-marketing period. Accordingly, he cannot claim to have entertained the legitimate expectation that he would be able to resume production at some unspecified time in the future. In the sphere of the common organisation of the markets, which necessitates constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy.
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1. Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation imposing anti-dumping duties - Undertaking which has submitted observations on the Commission regulation imposing a provisional antidumping duty in the course of the same procedure - Inadmissibility

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC))

2. Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Holder of capital in an undertaking concerned by a Community measure - Obligation to act as a member of the undertaking

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC))

Summary

1. It does not follow from the mere fact that an undertaking submitted observations on a Commission regulation imposing a provisional antidumping duty and that there are references to those observations in the Council regulation imposing the definitive antidumping duty that its action for annulment of the Council regulation must be regarded as admissible because the undertaking was involved in the preliminary investigation or impliedly identified in the contested regulation. Unless the undertaking adduces evidence of other special circumstances of such a nature as to identify it in the light of the measure in question, its mere participation in the administrative procedure after the adoption of the Commission regulation and its identification by implication in the contested regulation cannot be said in any way to have prompted the Community institutions' intervention or to have formed any part of the raison d'être of that regulation.

( see paras 47-48 )

2. A person must show a legal interest in bringing proceedings separate from that of an undertaking which he partly controls and which is concerned by a Community measure. Otherwise, in order to defend his interests in relation to that measure his only remedy lies in the exercise of his rights as a member of that undertaking which itself has a right of action.

( see para. 50 )
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Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation imposing an anti-dumping duty - Undertaking participating in the administrative procedure - Inadmissibility

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC))

Summary

$$Although participation by an undertaking in an anti-dumping proceeding may be taken into account, amongst other factors, in order to establish whether that undertaking is individually concerned, within the meaning of the fourth paragraph of Article 173 EC (now, after amendment, the fourth paragraph of Article 230 EC), by the regulation introducing anti-dumping duties adopted at the conclusion of that proceeding, if there are no other factors giving rise to a particular situation which distinguishes that undertaking from all other traders, with respect to the measure in question, such participation does not, of itself, give rise to a right enabling the undertaking to bring a direct action against that regulation. For that purpose, the mere fact that a number of the applicant undertakings were specifically named in the contested regulation cannot lead to a different conclusion.

( see paras 61-62 )
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1 Actions for failure to act - Commission under an obligation to act - Must adopt a decision as to how to respond to a complaint alleging infringement of the competition rules - Action to be taken within a reasonable time

(EC Treaty, Art. 175 (now Art. 232 EC))

2 Actions for failure to act - Jurisdiction of the Community judicature - Whether a direction may be issued to one of the institutions - Not permissible

(EC Treaty, Arts 175, second para., and 176 (now Arts 232, second para., EC and 233 EC)

Summary

1 In the context of an action for failure to act, it is necessary to verify whether, when the Commission was served with a formal request under Article 175 of the Treaty (now Article 232 EC), it was under an obligation to act.

When the procedure in respect of an alleged infringement of the competition rules has entered its third stage, that is to say, when the complainant has submitted his observations on the notification pursuant to Article 6 of Regulation No 99/63, the Commission is required, within a reasonable time, either to initiate a procedure with respect to the person complained against or to adopt a definitive decision rejecting the complaint.

The question whether the duration of an administrative proceeding is reasonable must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages to be followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved. In the particular context of an investigation into a complaint alleging infringement of the competition rules, it is appropriate, where the proceeding has entered its third stage, to take account of the years already spent on the investigation, the present state of the investigation of the case and the attitudes of the parties considered as a whole.

2 The Court of First Instance has no jurisdiction to issue directions to the Community institutions. Consequently, pursuant to Article 175 of the Treaty (now Article 232 EC), the Court may only declare that there has been an unlawful failure to act. It is then incumbent on the institution concerned, pursuant to Article 176 of the Treaty (now Article 233 EC), to take the measures necessary to comply with the judgment of the Court.