ddrg/super_eurlex huggingface dataset:
Failure to comply with the time-limits laid down in Article 90(2) of the Staff Regulations is not an obstacle to the admissibility of a prior administrative complaint or the action brought against the rejection of that complaint where the person concerned has made an excusable error. The concept of excusable error must be strictly construed and can cover only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all reasonable diligence.

The exercise of the discretion conferred on the appointing authority by Article 31(2) of the Staff Regulations may be regulated by internal directives. There is nothing, in principle, to prevent the appointing authority from laying down, by means of an internal decision of a general nature, rules for the exercise of the discretion conferred on it by the Staff Regulations. Such a directive must be regarded as a guiding rule of conduct which the administration imposes on itself and from which it cannot depart without stating its reasons for doing so, under pain of infringing the principle of equal treatment.

An internal decision of a general nature concerning classification in grade and step which expressly states that the date chosen for the purpose of calculating the professional experience taken into account for classification is the date on which the post is offered is consistent with the purposes of the Staff Regulations, both for administrative reasons and for substantive reasons. First, it is not possible to take account, when making an offer of employment, of any professional experience that may be acquired in the period between the date on which that offer is made and the date on which the candidate takes up his post. Second, there is normally very little time between the offer of employment being made and its being sent to the candidate or between its being sent and the offer being accepted or refused. Third, the time when the contract is signed and the time when the person concerned takes up his post are not generally very far apart. Last, to require the institution to review the terms of the offer of employment after it had been accepted by the person concerned in order to take account of professional experience acquired between the time when the offer was made and the time when he actually takes up his post would allow him to postpone taking up his post in order to obtain a better classification, without objective reason or the possibility of effective control by the institution.

(see paras 49 to 55)

See: T-92/96 Monaco v Parliament [1997] ECRSC I-A-195 and II-573, para. 46
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

20 September 2000

Case T-261/97

Eleonore Orthmann

v

Commission of the European Communities

‛Officials — Scientific and technical services — Transfer from Category B to Category A — Interest in bringing proceedings’

Full text in Italian II-829

Application for:

annulment of the Commission decision rejecting the applicant's candidature for a post in Category A at the Institute of the Enviromnent at the Joint Research Centre, Ispra, annulment of the procedure for call for an expression of interest used by the Commission to allocate a post as temporary servant at that Institute and, in the alternative, annulment of the appointment of the candidate chosen following that procedure.

Held:

Application dismissed. The parties shall bear their own costs.

Summary

Officials — Scientific and technical services — Transfer from Category B to Category A — Discretion of the administration as to the choice of procedure applicable — Internal directive (Staff Regulations, Arts 45(2) and 98, second para.) Officials — Actions — Interestin bringing proceedings — Filling of a vacant post — Obligation to show eligibility to fill the post (Staff Regulations, Art. 91) Officials — Actions — Interest in bringing proceedings — Plea alleging breach of essential procedural requirements — No scope for the exercise of discretion on the part of the administration — Plea inadmissible (Staff Regulations, Art. 91)
Keywords



Keywords

European Community public procurement - Arbitration clause attributing competence to the Court of Justice - Service contract - Obligation of payment - Non-performance - Claim for damages

(EAEC Treaty, Art. 153)
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Transport - Inland waterway transport - Structural improvements - Contribution to the scrapping fund - Exemption for specialised vessels - Assessment on the basis of the characteristics of the vessel concerned - Grant of the exemption to another vessel with the same technical specifications - No effect

(Council Regulation No 1101/89, Art. 8(3)(c))

Summary

$$When a vessel does not display the characteristics of a specialised vessel within the meaning of Article 8(3)(c) of Regulation No 1101/89 on structural improvements in inland waterway transport, an exemption from the special contribution to the scrapping fund provided for under that article cannot be allowed on the ground that it was allegedly granted for another vessel displaying the same technical specifications when the Court has not even been called on to examine the case of the latter vessel.

( see para. 98 )
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Summary



Keywords

1. Competition - Dominant position - Relevant market - Geographical delimitation - Criteria

(EC Treaty, Art. 86 (now Art. 82 EC))

2. Competition - Dominant position - Existence - Evidence - Market share

(EC Treaty, Art. 86 (now Art. 82 EC))

3. Competition - Dominant position - Meaning

(EC Treaty, Art. 86 (now Art. 82 EC))

Summary

1. In the general scheme of Article 86 of the EC Treaty (now Article 82 EC) the geographical market must be defined so as to determine whether the undertaking concerned is in a dominant position in the Community or a substantial part of it. The definition of the geographical market calls for an economic assessment. The market can thus be defined as the territory in which all traders operate under the same, or sufficiently similar, conditions of competition in so far as concerns specifically the relevant products, without it being necessary for the objective conditions of competition between traders to be perfectly homogeneous. Furthermore, the market may be confined to a single Member State.

( see para. 39 )

2. The possession of very large market shares is in itself and save in exceptional circumstances, evidence of the existence of a dominant position. An undertaking which has a very large market share and holds it for some time, by means of the volume of production and the scale of the supply which it stands for - without holders of much smaller market shares being able to meet rapidly the demand from those who would like to break away from the undertaking which has the largest market share - is by virtue of that share in a position of strength which makes it an unavoidable trading partner and which, because of this alone, secures for it, at the very least during relatively long periods, that freedom of action which is the special feature of a dominant position.

( see para. 51 )

3. A dominant position is a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.

( see para. 51 )
That conclusion is not invalidated by the fact that, during the period in which he holds the local staff post, the person concerned does not receive his pension. That circumstance is merely the consequence of applying the second paragraph of Article 40 of Annex VIII to the Staff Regulations, according to which a retirement pension is not to be drawn concurrently with a salary payable by an institution of the Communities.

A local staff post held temporarily for a Community institution by a former official in receipt of a pension payable on early retirement pursuant to the second indent of Article 9 of Annex VIII to the Staff Regulations does not alter the pension rights which he acquired on the date of his request to start to draw the pension. The local staff contract under which that post is filled does not have the effect of reinstating the person concerned in his former status as an official, but merely of placing him temporarily in the service of the Community.

Under Article 19 of the EC Statute of the Court of Justice, applicable to the proceedings before the Court of First Instance under Article 46 of that Statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, an application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which it is based. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling. In order to ensure legal certainty and sound administration of justice, for an action to be admissible the facts and law on which it is based must be apparent from the text of the application itself, at least summarily, provided that 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 from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there to be a causal link between that conduct and the harm he claims to have suffered, and the nature and extent of that harm.

Although, in special circumstances, it has been held that it was not essential to specify the exact extent of the harm in the application and to state the amount of compensation sought, the applicant must nevertheless establish in that application, or at least indicate, the existence of any such circumstances.

The applicant's claim must therefore be held to be inadmissible since he has neither clearly indicated the nature of the alleged illegal conduct of the institution concerned nor provided evidence from which the actual damage alleged and the existence of a causal link between that conduct and the alleged damage can be identified, and since he has also failed to indicate the circumstances which allegedly prevented him from specifying the extent of the harm suffered by him and from stating the amount of compensation sought by him.

(see paras 80-84)

See: T-195/95 Guérin automobiles v Commission [1997] ECR II-679, paras 20 and 21; T-262/97 Goldstein v Commission [1998] ECR II-2175, para. 25
Judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 17 March 2005 − Eurocoton v Council

(Case T-192/98)

Dumping – Failure by the Council to adopt a Commission proposal for a regulation imposing a definitive anti-dumping duty – Absence of simple majority necessary for the adoption of a regulation – Obligation to state reasons

1. Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects – Failure to adopt a proposal for a regulation imposing an anti-dumping duty – Effect of the regulatory nature of the anti-dumping procedure – None (Art. 230 EC; Council Regulation No 384/96, Art. 6(9)) (see paras 30-32)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Failure to adopt a proposal for a regulation imposing a definitive anti‑dumping duty (Art. 253 EC; Council Regulation No 384/96) (see para. 35)

Re:

ACTION for the annulment of the Council’s decision of 5 October 1998 rejecting the proposal for a Council Regulation (EC) imposing a definitive anti-dumping duty on imports of certain unbleached cotton fabrics originating in the People’s Republic of China, Egypt, India, Indonesia and Pakistan, definitively collecting the provisional duty imposed by Commission Regulation (EC) No 773/98 of 7 April 1998 (OJ 1998 L 111, p. 19) and terminating the anti-dumping proceeding in respect of imports of these fabrics originating in Turkey, submitted by the Commission of the European Communities on 21 September 1998 (document COM(1998) 540 final)

Operative part

The Court:

1. Annuls the Council’s decision of 5 October 1998 rejecting the Commission’s proposal for a Council Regulation (EC) imposing a definitive anti-dumping duty on imports of certain unbleached cotton fabrics originating in the People’s Republic of China, Egypt, India, Indonesia and Pakistan, definitively collecting the provisional duty imposed by Regulation (EC) No 773/98 (OJ 1998 L 111, p. 19) and terminating the anti-dumping proceeding in respect of imports of these fabrics originating in Turkey, submitted by the Commission of the European Communities on 21 September 1998 (document COM(1998) 540 final);

2. Orders the Council of the European Union to pay the costs;
JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

13 July 2000

Case T-157/99

Helga Griesel

v

Council of the European Union

‛Officials — Promotion refused — Statement of reasons — Examination of the comparative merits of the candidates’

Full text in French II-699

Application for:

annulment of the Council's decision not to promote the applicant from grade C 5 to grade C 4 in the course of the 1998 promotions procedure.

Held:

Application dismissed. The parties to bear their own costs.

Summary

Officials — Promotion — Comparative examination of merits — Factors which may be taken into account — Professional experience acquired prior to taking up post with the institution — Performance by the official of duties corresponding to a grade higher than his own

The obligation to state reasons for refusing a promotion, at least at the stage when a complaint is rejected, is intended, on the one hand, to provide the official concerned with sufficient information to determine whether the act adversely affecting him is well founded and whether it is appropriate to bring legal proceedings and, on the other, to enable the Court to review the legality of the contested decision. Since promotions are ‘by selection’, under Article 45, the statement of reasons can concern only whether the legal conditions which, under the Staff Regulations, govern the validity of the procedure have been met. (see paras 19 and 20) See: T-142/95 Delvaax v Commission [1997] ECRSC I-A-477 and II-1247, para. 84; Case T-157/98 Oliveira v Parliament [1999] ECRSC I-A-163 and II-851, para. 50

In the absence of any evidence calling in question the legality of measures adopted by the Community institutions, such measures are presumed to be lawful. (see para. 25) See: T-272/94 Brulant v Parliament [1996] ECRSC I-A-513 and II-1397, para. 35
JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

11 May 2000

Case T-34/99

Philippe Pipeaux

v

European Parliament

‛(Officials — Thalassotherapy cure — Refusal of prior authorisation — Reasons)’

Full text in French II-337

Application for:

annulment of the decision of 6 March 1998 of the Luxembourg office responsible for settling claims rejecting the applicant's request to take a thermal cure.

Held:

The application is dismissed. The parties shall bear their own costs.

Summary

Officials — Decision adversely affecting an official — Obligation to state reasons — Scope — Sickness insurance — Decision rejecting a request for prior authorisation to follow a thermal cure (Staff Regulations, Art. 25, second para.) Officials — Social security — Sickness insurance — Request for prior approval to take a thermal cure — Individual assessment by the office responsible for settling claims (Staff Regulations, Art. 72(1); Rules on sickness insurance, Annex I, para. XI(1))
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Keywords

Non-contractual liability - Conditions - Damage - Causal link - Burden of proof

(EC Treaty, Art. 215, second para. (now Art. 288 EC, second para.))

Summary

$$It is for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage it alleges and to show that there was a direct causal link between the unlawful conduct of which it accuses the institution and the damage it has allegedly sustained.

( see paras 55, 76 )
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1. Council - Power of internal organisation - Integration of the Schengen Secretariat into the General Secretariat of the Council - Detailed arrangements

(Merger Treaty, Art. 24(1), 2nd subpara.; Protocol integrating the Schengen acquis into the framework of the European Union, Art. 7; Council Decision 1999/307)

Summary

1. Nothing prevents Article 7 of the Protocol integrating the Schengen acquis into the framework of the European Union, under which the Council is to adopt the detailed arrangements for the integration of the Schengen Secretariat into its own General Secretariat, from being interpreted by the Council as authorising it to integrate the staff of the former Schengen Secretariat.

As regards the detailed arrangements for this integration, that Protocol, which has the status of primary law, did not require the Council to follow a particular procedure. The second subparagraph of Article 24(1) of the Treaty establishing a single Council and a single Commission of the European Communities, far from itself establishing a recruitment system of general application, does no more than empower the Council to adopt the Staff Regulations of Officials of the European Communities and the Conditions of Employment of other servants of the European Communities, without laying down guiding rules or principles for that purpose.

The Council was therefore authorised, under Article 7 of the Protocol, to establish a recruitment scheme independent of the provisions of the Staff Regulations of Officials of the European Communities and the Conditions of Employment of other servants of the European Communities for the purposes of integrating the former members of staff of the Schengen Secretariat, in order to ensure continuity of application of the Schengen acquis within its own General Secretariat. Moreover, the Staff Regulations and the Conditions of Employment do not constitute an exhaustive body of rules prohibiting the employment of persons otherwise than within the framework of those rules.

( see paras 60-62 )

2. A provision of secondary Community law must, as far as possible, be given an interpretation consistent with the provisions of the Treaty and the general principles of Community law. That method of interpretation may legitimately be applied to the constituent documents of the procedure for creating an act of secondary Community law, where the question is whether that procedure complied with the primary law on the basis of which the act was adopted.

( see para. 80 )
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Keywords

Own resources of the European Communities - Repayment or remission of import or export duties - Existence of a special situation, within the meaning of Article 905 of Regulation No 2454/93, making it obligatory for the national customs authorities to forward the file to the Commission - Commission's power to adopt decisions - Detailed rules concerning its exercise - Fraud

(Commission Regulation No 2454/93, Art. 905(1) and (2))

Summary

$$Article 905(1) of Commission Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, on the basis of which a request is made to the Commission by the national customs authority which, presented with an application for remission of duties in respect of which it had made an initial assessment, considers that there is evidence of the existence of a special situation justifying the remission of duties, to make a definitive assessment on the basis of the information placed before it as to whether a special situation exists, includes a general equitable provision designed to cover the exceptional situation in which the economic operator concerned might find himself in comparison with other operators engaged in the same business.

In order to determine whether the facts in question constitute a special situation within the meaning of that provision, the Commission must, in the context of the broad margin of assessment it enjoys in that respect, assess all the facts and must balance, on the one hand, the Community interest in ensuring that the customs provisions are respected and, on the other, the interest of the economic operator acting in good faith not to suffer harm beyond normal commercial risk.

Where the factual information constituting the fraud, which has been sent to the Commission by the national authorities, is not questioned or supplemented, because the Commission has not asked for additional information, and where it derives from purely internal operations of the administration of a Member State which the applicant has no right to monitor, and which it can not influence in any way, the Commission cannot merely make a finding that the applicant is not in a special situation since those circumstances go beyond the commercial risk it would normally incur.

In those circumstances, the Commission is not entitled to limit the scope of its assessment to the possibility of active complicity by a particular customs official and to require the applicant to supply, if necessary by producing a document from the competent national authorities, formal and definitive proof of such complicity. By doing so the Commission fails to appreciate both its obligation to assess all the facts itself in order to determine whether they constitute a special situation, and the autonomous nature of the procedure laid down in Article 905 et seq. of the implementing regulation.

( see paras 52-55, 57-58 )