ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Fourth Chamber) of 8 November 1990. - Rita Buccarello and others v European Parliament. - Official - Competition - Condut of the typing tests. - Case T-155/89.



European Court reports 1990 Page II-00635

Pub.RJ Page Pub somm



Parties

Operative part



Keywords

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Officials - Recruitment - Competition - Competition on the basis of qualifications and tests - Practical test - Provision to candidates of different makes of typewriters - Equal treatment - Infringement - None

( Staff Regulations of Officials, Annex III )

Parties

In Case T-155/89,

Rita Buccarello, Paula Ravacchioli, Roberto Tiseni, Roberto Galtieri, Gina Fortino et Luisa Parlavecchio, represented by Carlo Revoldini, of the Luxembourg Bar, with an address for service in Luxembourg at his Chambers, 21 rue Aldringen,

applicants,

v

European Parliament, represented by Jorge Campinos, Jurisconsult, and by Manfred Peter, Head of Division, acting as Agents, with an address for service in Luxembourg at the General Secretariat of the European Parliament, Kirchberg,

defendant,

APPLICATION for the annulment of Competition PE/104/C organized by the European Parliament to establish a reserve list of Italian-language typists,

THE COURT OF FIRST INSTANCE ( Fourth Chamber )

composed of : R . Schintgen, President of Chamber, D . A . O . Edward and R . García Valdecasas, Judges,

( The grounds of the judgment are not reproduced .)

hereby :

Operative part

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs, including those relating to the application for interim measures .
Keywords

Summary



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1 . Officials - Social security - Insurance against accidents and occupational disease - Medical report - Review by the Court - Limits

( Staff Regulations, Art . 73; Rules on the Insurance of Officials against the Risk of Accident and of Occupational Disease, Arts 23 and 28 )

2 . Officials - Actions - Prior administrative complaint - Subject-matter - Correspondence between the complaint and the application - Submission not made in the complaint - Not admissible

( Staff Regulations, Arts 90 and 91 )

Summary

1 . In an action brought against a decision adopted by the appointing authority applying the Rules on the Insurance of Officials against the Risk of Accident and of Occupational Disease, the review by the Court cannot extend to assessments of a purely medical nature made by the committee provided for by Article 23 of those rules . Such assessments must be regarded as definitive if made under proper conditions .

2 . The purpose of the pre-litigation procedure is to permit an amicable settlement of differences which have arisen between officials or servants and the administration . In order that such a procedure may fulfil its purpose, it is necessary that the appointing authority should be in a position to know in sufficient detail the criticisms made by the aggrieved official of the contested decision .

A submission not put forward in the complaint submitted prior to the commencement of proceedings must be dismissed as inadmissible if the official concerned was in a position to make that submission in his complaint .
Keywords

Summary



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1 Officials - Promotion - Minimum period in grade - Calculation - Starting point - Establishment - Member of the temporary staff appointed an official - Immaterial

(Staff Regulations, Art. 45(1))

2 Officials - Promotion - Assurances - Disregard of the provisions of the Staff Regulations - Legitimate expectations - None

(Staff Regulations, Art. 45(1))

3 Officials - Equality of treatment - Limits - Advantage unlawfully granted

Summary

1 It follows from Article 45 of the Staff Regulations that in the case of an official' s first promotion after recruitment the minimum period which he must complete in his grade in order to be eligible for promotion is calculated from the date of his establishment.

There is no provision in the Staff Regulations which allows the period during which an official, before his appointment, was employed by his institution as a member of the temporary staff to be taken into account for the purposes of that minimum period in grade even if, when he was employed as a member of the temporary staff, he was eligible, as a successful candidate in a competition, to be appointed an official.

2 Assurances that are given, without regard to the relevant provisions of the Staff Regulations, to the effect that, for the purposes of promotion, the period during which an official was employed by his institution as a member of the temporary staff would be taken into consideration cannot give rise to legitimate expectations on the part of the official.

3 An official cannot rely on the principle of equality of treatment to claim the benefit of a practice contrary to the provisions of the Staff Regulations since no person may plead in his own cause an unlawful act committed in favour of another.
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Officials ° Remuneration ° Payment in the currency of the place of employment ° Weighting ° Special provisions and exceptions applicable to officials serving in non-member countries ° Internal implementing directives ° Legality ° Infringement of the principles of equivalence of purchasing power and equal treatment ° None

(Staff Regulations, Arts 63 and 64; Annex X, Arts 11 and 12, first para.)

Summary

Although by adopting, for the application of the first paragraph of Article 12 of Annex X to the Staff Regulations, an internal directive which limits to 80% the part of their remuneration which, at the request of the officials concerned, is paid in the currency of the country of employment with application of the weighting for that country but reserves the right to grant requests for payment of a higher proportion in duly reasoned cases, the appointing authority has provided for those officials a system different from that applicable to officials serving within the Community, whose remuneration, pursuant to Articles 63 and 64 of the Staff Regulations, is automatically paid in full in the currency of the country of employment with application of the corresponding weighting, it is not in breach of the principle of equal treatment. That principle requires both that identical situations be treated identically and that different situations be treated differently in so far as is commensurate with the difference found to exist.

The situation of officials serving in a non-member country differs from that of officials serving in the Community, in particular as regards the expenditure that is likely to be incurred in the country of employment. In order to ensure that officials enjoy equivalent purchasing power, irrespective of their place of employment, the rules for payment of remuneration must take account of that difference between their respective situations. The presumption that officials serving in a non-member country are likely to spend only 80% of their remuneration in the country of employment, whereas officials serving in the Community are assumed to spend their entire remuneration in the country in which they perform their duties, constitutes a difference in treatment which is proportionate to the difference in the respective situations of those two categories of officials. Pursuant to Annex X to the Staff Regulations, officials serving in a non-member country are not required to bear either accommodation costs or the cost of health care in their place of employment.
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1. Officials ° Decision adversely affecting an official ° Failure to refer to legal basis not causing any ambiguity for the person concerned ° Breach of obligation to state grounds ° None

(Staff Regulations, Art. 25, second para.)

2. Officials ° Actions ° Jurisdiction of the Court of First Instance ° Interpretation of a concept of national law for the purposes of applying a provision of the Staff Regulations ° Necessary

3. Officials ° Temporary staff ° Definitive termination of service ° Allowance ° Method of calculation

(Council Regulation No 2274/87, Art. 4(4))

4. Officials ° Temporary staff ° Definitive termination of service ° Cover by the Joint Sickness Insurance Scheme ° Condition ° No cover under another scheme by virtue of legal or statutory provisions ° Scope ° Criterion of equivalence of benefits provided ° Not necessary

(Staff Regulations, Art. 72; Council Regulation No 2247/87, Art. 4(6))

Summary

1. Failure to refer to the legal basis for a decision adversely affecting an official is not a breach of the obligation to state the grounds on which it is based provided for in the second paragraph of Article 25 of the Staff Regulations, where it has been proven that there can be no doubt as to that legal basis in the mind of the addressee of the decision.

2. Where the application of a rule of the Staff Regulations depends on the application of a legal rule applying in the legal system of one of the Member States, it is in the interest of justice and the proper application of the Staff Regulations that the Court' s review should also extend to an examination of the way in which the appointing authority of a Community institution has applied the national law of one of the Member States.

3. Article 4(4) of Regulation No 2274/87 introducing special measures to terminate the service of temporary staff of the European Communities must be interpreted as meaning that the income to be deducted from the allowance provided for in Article 4(1) is that which accrues to the recipient of the allowance from any new employment, after deduction of duly attested social security contributions which have actually been paid by the person concerned but before deduction of any national tax. In that respect, failure to take account of the particular features of each national tax system and in particular of the extent to which tax rates are graduated cannot be a breach of the principle of equal treatment.

4. Article 4(6) of Regulation No 2274/87 must be interpreted as meaning that a member of the temporary staff in receipt of the allowance provided for by that Regulation who is covered by a national system of social security based on provisions of public law, such as the German system of assistance for civil servants which incorporates sickness benefits, cannot be covered by the Joint Sickness Insurance Scheme provided for in Article 72 of the Staff Regulations regardless of the equivalence or otherwise of the benefits provided by the two schemes.
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Officials ° Careers ° Change of category or service following participation in an open competition ° Classification in step ° Application of rules on promotion ° Exception resulting from the need to take account of professional experience acquired before taking up duties ° Scope

(Staff Regulations, Art. 32, second para., and Art. 46)

Summary

In view of the respective aims of the second paragraph of Article 32 and Article 46 of the Staff Regulations, the classification in step of an official moving from one category to another following an open competition must be based on the principles laid down in Article 46 and not on those laid down in the second paragraph of Article 32. Article 32 is intended in particular to enable the appointing authority to take into account, albeit within rather strict limits, training and professional experience acquired before a Community official takes up his duties, whereas the purpose of Article 46 is to ensure the greatest possible continuity regarding his seniority and salary as his career develops, even when he moves from one category or service to another after a competition.

However, when the application of Article 46 would not allow any account to be taken of the training and the specific professional experience acquired by an official before taking up his duties, the second paragraph of Article 32 must be applied, whatever his seniority when notice of the competition in which he took part was published, because discrimination on such a basis between officials who have been successful in a competition cannot be justified.
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Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision applying the rules on competition ° Decision relating to several addressees ° Identification of the entity liable for an infringement ° Inadequate statement of reasons ° Possibility of characterizing the inadequacy as a mere error ° Conditions

(EEC Treaty, Art. 190)

Summary

If it relates to several addressees and there is a problem with regard to liability for the infringement, a decision taken in application of the competition rules in the Treaty must include an adequate statement of reasons with respect to each of the addressees, in particular those whom it identifies as having to bear liability for the infringement.

The statement of reasons must be especially detailed if during the administrative procedure the undertaking on which the final decision imposes a fine has advanced several reasons why it cannot be held liable for the infringement and the Commission has not clarified its position on this point.

In particular, for a Commission decision in a competition case, which in its statement of reasons merely identifies as the party committing an infringement the legal entity which existed prior to the date of the purchase of its assets by another undertaking, lawfully to be able to impute liability for that infringement to the purchaser of the undertaking, there must be no dispute as to the identity of the successor legal entity or as to the reality of the continuance by that entity of the activity, carried on by the undertaking in question, which gave rise to the proceedings.

The Commission cannot attribute an inadequacy, from the point of view of the requirements of the Treaty, in a statement of reasons to an error unless it establishes that error with sufficient certainty. That is not the case if it does not refer to such an error until the final stage of the procedure before the Community courts and has not notified a corrigendum in the proper form to the addressee of the decision.

That is all the more so where the alleged error relates, firstly, to the actual operative part of the contested decision and, secondly, to the very identity of the addressees, in other words, those who are ordered to pay the fine imposed, those being points on which scrupulous observance of the principle of legal certainty is essential.

There is no adequate statement of reasons if the operative part of a decision holds a company liable for an infringement, while identifying another company as having committed the infringement, solely on the ground that it has taken over the assets of a company which itself is not identified as having committed the infringement.
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Officials ° Competitions ° Competition based on qualifications and tests ° Conditions for admission ° Competition for category C posts ° Exclusion of candidates with a university degree ° Not permissible having regard to the principle of equal treatment and the aims of the recruitment policy

(Staff Regulations, Arts 5(1) and 27, first para.)

Summary

Any condition in a competition notice which prohibits candidates with a university degree from entering a competition for category C posts is unlawful ° as is any decision of a selection board based on such a condition ° because it is incompatible with the principle of equal treatment in conjunction with the first paragraph of Article 27 of the Staff Regulations, which provides inter alia that recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity.

The fact that the appointing authority enjoys a wide discretion in choosing competition requirements is irrelevant. The choice to be made in the exercise of that power must always be governed by the requirements of the posts to be filled and, more generally, the interests of the service. There is no link at all, however, between the contested condition and those requirements or interests.

Likewise irrelevant are the conditions laid down in Article 5(1) of the Staff Regulations and the requirements in Article 1(1) of Annex III to the Staff Regulations. Article 5(1), which lays down the minimum education and experience required for each staff category neither requires nor authorizes the application of a criterion which excludes candidates from a competition solely on the ground that they have a higher level of education than a particular maximum determined inter alia by the minimum for a category higher than that to which the competition relates. As regards Article 1(1) of Annex III, which lists the requirements to be stated in competition notices, it is evident that it does not relate to the diplomas and other evidence of formal qualifications possession of which entails exclusion of the holder from the competition, and that it also says nothing of the choice to be made by the appointing authority as regards the precise nature of the qualifications which may be required for a particular competition.
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Keywords

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 conversion premium arrangements - Producer not resuming production on expiry of his conversion undertaking - Breach of the principle of protection of legitimate expectations - None

Summary

$$The Community cannot be held liable, as a result of the application of Regulation No 857/84 fixing, within the context of the additional levy scheme for milk, the reference quantity for each producer on the basis of the production delivered during a reference year, to a producer who, following an undertaking under Regulation No 1078/77 to convert his herd for a period of four years, has not shown that he intends to produce milk after the conversion period.

While the producer did manifest such an intention several years after that period, he could not have a legitimate expectation in the possibility of resuming milk production at some unspecified future date. In the sphere of the common organisations of the market, whose purpose involves constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions which may arise out of future rules of market or structural policy.

( see paras 46, 49-50 )
Judgment of the Court of First Instance (Third Chamber) of 24 September 1996. - Compagnie Continentale (France) v Commission of the European Communities. - Emergency assistance given by the Community to the States of the former Soviet Union - Invitation to tender - Action for annulment - Admissibility. - Case T-494/93.



European Court reports 1996 Page II-01157



Summary



Keywords

1. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Implementation of a loan granted by the Community to the Soviet Union and its constituent republics ° Commission decision addressed to the borrower, refusing to recognize amendments made to contracts concluded between the agent designated by the borrower and an undertaking to which the contract is awarded as being in conformity with the applicable Community provisions ° Action brought by the undertaking ° Inadmissibility

(EC Treaty, Art. 173, fourth para.)

2. Actions for annulment ° Jurisdiction of the Community judicature ° Claims for restoration of the applicant' s rights ° Inadmissibility

(EC Treaty, Art. 173)

Summary

1. In the implementation of a loan granted by the Community to the Soviet Union and its constituent republics in order to enable agricultural and food products and medical supplies to be imported, an undertaking awarded a contract for the supply of wheat is not directly concerned, within the meaning of the fourth paragraph of Article 173 of the Treaty, by a Commission decision addressed to the financial agent of the borrowing republic refusing to recognize amendments made to the contracts concluded between the contracting undertaking and the agent designated for that purpose by the borrowing republic as being in conformity with the applicable Community provisions, since that undertaking has a legal relationship only with the party with whom it contracts, namely the agent appointed to conclude purchase contracts, whilst the Commission has legal relations only with the party with whom it contracts, namely the financial agent of the borrowing republic, and the action of the Commission, whose role is merely to verify that the conditions laid down by the Community rules are fulfilled, does not therefore affect the legal validity of the aforementioned contracts.

It follows that the undertaking to which the contract is awarded does not have the right to bring proceedings for annulment of the decision in question.

2. In an action for annulment based on Article 173 of the Treaty, the role of the Community judicature is restricted to reviewing the legality of the contested act. In those circumstances, a claim for restoration of the applicant' s rights goes beyond the limits of the jurisdiction conferred on the Community judicature by the Treaty and must therefore be declared inadmissible.
Keywords

Summary



Keywords

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

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.