ddrg/super_eurlex huggingface dataset:
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1 . Officials - Actions - Act adversely affecting an official - Definition - Notice determining rights to allowance on termination of service

( Staff Regulations of Officials, Arts 90 and 91 )

2 . Officials - Termination of service - Special measures on accession - Pension contributions

( Staff Regulations of the ECSC, Art . 34; Council Regulation No 3518/85, Arts 4(7 ) and 5(1 ) )

Summary

1 . The notice determining rights to an allowance on termination of service is a measure against which an application for annulment lies, whereas the salary statements drawn up on the basis of such notices are merely confirmatory inasmuch as they do not alter it or contain any new factor .

2 . Article 4(7 ) of Regulation No 3518/85 introducing special measures to terminate the service of officials of the European Communities as a result of the accession of Spain and Portugal does not envisage any derogation from the obligation to pay contributions to the pension scheme incumbent on the recipient of an allowance under Article 34 of the Staff Regulations of the ECSC and Article 95 of the Rules and Regulations of the ECSC .
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1. Competition - Administrative procedure - Request for information - Need for the existence of a connection between the information requested and the infringement under investigation

(Council Regulation No 17, Art. 11(1) and (3))

2. Competition - Administrative procedure - Professional secrecy - Obligation on the competent authorities of Member States to observe the confidentiality of information sent by the Commission - Breach of the principle of proportionality arising from the risk of disclosure within the national administration of information obtained by the Commission from an undertaking by means of a request for information - Absence

(Council Regulation No 17, Arts 10(1), 11 and 20)

Summary

1. In the context of the administrative procedure for ascertaining whether there has been an infringement of the competition rules, the only information which the Commission may require an undertaking to disclose is information which may enable it to investigate putative infringements which justify the conduct of the investigation and are set out in the request for information. It follows from the combined effect of Article 11(1) and (3) of Regulation No 17 and from the requirements relating to regard for the right to a fair hearing of the undertakings concerned that the criterion of necessity laid down in Article 11 must be assessed according to the purpose of the investigation, which must be stated in the request for information itself.

The requirement that there must exist a correlation between the request for information and the putative infringement must be considered to be satisfied, since at that stage in the proceeding the request may legitimately be regarded as having a connection with the putative infringement.

2. The provisions of Article 20 of Regulation No 17, which prohibit, first, the disclosure of information acquired as a result of the application of that regulation and of the kind covered by the obligation of professional secrecy and, secondly, the use of such information for any purpose other than that for which it has been requested, are intended to ensure the confidential treatment of information transmitted to Member States as a result of the application of Article 10(1) of Regulation No 17.

Those provisions preclude the disclosure of information not only outside the national administration of a Member State but also to anyone in the departments of the national administration apart from those in charge and the officials or other servants of the competent departments dealing with competition matters. It follows that an undertaking cannot claim to avoid a request for information sent to it by the Commission pursuant to Article 11 of Regulation No 17 by invoking a breach of the principle of proportionality arising from the risk that the documents sought from it may circulate between different administrative departments of a Member State, which could use them to the detriment of its commercial interests.
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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, para. 1)

Summary

The appointing authority does not exceed the limits of its discretion under Article 12, first paragraph, of Annex X to the Staff Regulations, as regards the rules for the payment of the remuneration of officials serving in non-member countries, by adopting 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. Although the system thereby established differs 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, since that principle requires both that identical situations should be treated identically and that different situations should 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 ° Actions ° Measure adversely affecting an official ° Meaning ° Preparatory measure ° Opinion of an advisory body ° Excluded

(Staff Regulations, Arts 90 and 91)

2. Officials ° Promotion ° Comparison of merits ° Criteria ° Discretion of the administration ° Review by the Court ° Limits

(Staff Regulations, Art. 45)

3. Officials ° Promotion ° Complaint by a candidate who was not promoted ° Decision rejecting the complaint ° Obligation to state reasons

(Staff Regulations, Arts 45 and 90(2))
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Officials ° Actions ° Prior complaint through official channels ° Time-limits ° Applicability to a request for recalculation of pension ° Time-barred ° Starting time running again ° Conditions ° New fact

(Staff Regulations, Arts 90 and 91; Annex VIII, Art. 41, first para.)

Summary

An official who has submitted a request for recalculation of his pension, relying on the first paragraph of Article 41 of Annex VIII to the Staff Regulations, may lodge a complaint and, if necessary, bring an action against the refusal of his request, but he must comply with the time-limits provided for in Articles 90 and 91 of the Staff Regulations.

With regard to the manner in which a pension is calculated, it is the notification of the breakdown of his pension entitlement to the person concerned by the administration which causes those time-limits to begin to run. The breakdown, which fixes the rate and the amount of the pension and clearly shows the provisions on the basis of which the entitlement was calculated, constitutes the act adversely affecting the official.

Once the time-limits have expired, only the existence of a new fact could start time running again. The fact that the person concerned disputes, for the first time in his request for recalculation, the applicability of the provisions of the Staff Regulations on which the calculation of his pension was based cannot be a new fact since it is solely based on a different interpretation of a rule of law and not on any change in the applicant' s situation.
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1. Officials ° Promotion ° Complaint by candidate not promoted ° Decision rejecting complaint ° Grounds ° Scope

(Staff Regulations, Arts 45 and 90(2))

2. Officials ° Decision affecting the administrative status of an official ° Account taken of matters not recorded in personal file ° Not permissible ° Limits ° Account taken, in granting promotion, inter alia of comparative assessment of candidates' abilities by their immediate superior ° Whether permissible

(Staff Regulations, Art. 26)

Summary

1. The appointing authority is required, in accordance with Article 90(2) of the Staff Regulations, to give reasons for its decision rejecting a complaint contesting promotion, so that the Community judicature can review the legality of that decision on promotion and the person concerned has sufficient information to ascertain whether the decision is well founded or vitiated by an error which will allow its legality to be contested. Where it has promoted an official who is not included on a list drawn up by a joint body required to give its opinion, it discharges that obligation if, in its letter rejecting the complaint, it makes clear that it made its comparative assessment of all the candidates' qualifications, merits and knowledge required for the performance of duties on the basis of the staff reports of all the officials eligible for promotion.

2. The purpose of Article 26 of the Staff Regulations is to safeguard an official' s right to a fair hearing by ensuring that decisions taken by the appointing authority and affecting his administrative status and his career are not based on matters concerning his conduct which are not mentioned in his personal file. A decision based on such matters is contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

That is not the case where the appointing authority makes a decision granting promotion to an official, in preference to others, on the basis both of the staff reports of the candidates and of a comparative assessment of their abilities by their immediate superior, which, as a value judgment likely to be damaging to the unsuccessful candidates, must not be communicated to them or included in their personal file.
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As regards the admissibility of the objection of illegality raised by the applicant under Article 184 of the Treaty with regard to the sickness insurance rules, it must be borne in mind that, as the Court of Justice has held (Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 39 to 41), the objection of illegality gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being contested. Consequently, such objections cannot be limited to measures in the form of a regulation, the only kind mentioned in Article 184 of the Treaty, but must be interpreted broadly as including all measures of general application. The sickness insurance rules which, having been adopted in implementation of Article 72(1) of the Staff Regulations, essentially cover the reimbursement of the various sickness expenses incurred by members of the Joint Scheme, were adopted, in their original version, in 1974 by the European Community institutions in an agreement recorded on 31 October 1974 by the President of the Court of Justice; they have been amended on several occasions, most recently in 1991, the agreement of the institutions having been recorded by the President of the Court of Justice on 28 November 1991. Those rules are of a general nature, in that they apply to situations that are determined objectively and have legal effects with regard to categories of persons referred to in a general and abstract manner (judgment of the Court of Justice in Joined Cases 44/74, 46/74 and 49/74 Acton and Others v Commission [1975] ECR 383, paragraph 7, and Case 206/87 Lefebvre Frère et Soeur v Commission [1989] ECR 275, paragraph 13). Consequently, although they are not in the form of a regulation, those rules may be the subject of an objection of illegality. Moreover, the Court of Justice itself has described them as ‘provisions implementing the Staff Regulations’ and has examined their compatibility with the relevant provisions of the Staff Regulations, in particular as to whether in certain respects they exceed the limits laid down by the Council in Article 72 of the Staff Regulations (Case 806/79 Gerin v Commission [1980] ECR 3515, paragraph 15, and Case 339/85 Brunotti v Commission [1988] ECR 1379, paragraph 13).
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Economic and social cohesion ° Structural assistance ° Community financing granted for national operations ° Financing conditional on compliance with regulations setting out Community policies ° Suspension or reduction of financial assistance granted for a national operation ° Procedure distinct and separate from that of an action for failure to fulfil obligations

(EEC Treaty, Art. 169; Council Regulations No 2052/88, Art. 7(1), and No 4253/88, Art. 24)

Under Article 7(1) of Regulation No 2052/88, measures financed by the Structural Funds or receiving assistance from the European Investment Bank (EIB) or from another existing financial instrument are required to be in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Community policies, including those concerning the rules on competition, the award of public contracts and environmental protection. Under Article 24 of Regulation No 4253/88, the Commission may suspend or reduce assistance in respect of an operation if, after examination of the case in the framework of a partnership with the authorities of the Member State concerned, it finds that there has been an irregularity.

The procedure for the suspension or reduction of Community financial aid for which Article 24 of Regulation No 4253/88 provides is independent of the procedure under Article 169 of the Treaty for failure to fulfil obligations in so far as neither the initiation of a procedure for failure to fulfil obligations nor a declaration to that effect automatically entails the suspension or reduction of Community financial assistance and a decision to discontinue a procedure for failure to fulfil obligations does not in any way prevent the Commission from suspending or reducing Community assistance, even after completion of the work, particularly where one or more of the conditions to which that assistance has been made subject have not been satisfied.

It follows that the decision by the Commission not to initiate a procedure against a Member State for failure to fulfil obligations on the ground of the latter' s failure to meet its obligations with regard to environmental protection in connection with the realization of a project benefiting from Community financial assistance cannot be treated as constituting at the same time a decision not to make use of the possibility of reviewing that assistance.
The principle of the protection of legitimate expectations cannot be relied upon by an undertaking which has committed a manifest infringement of the rules in force. Whilst it is important to ensure compliance with requirements of legal certainty which protect private interests, those requirements must be balanced against requirements of the principle of legality which protect public interests, and precedence must be accorded to the latter when the maintenance of irregularities would be likely to infringe the principle of equal treatment.

Undertakings which have benefited from Community financial aid granted under Regulation No 4028/86 on Community measures to improve and adapt structures in the fisheries and aquaculture sector for the purpose of building new fishing vessels cannot therefore rely, in disputing the validity of Commission decisions ordering withdrawal of that aid and repayment of sums already paid, on infringement of an alleged legitimate expectation if they have quite knowingly committed flagrant breaches of the rules in force, consisting in particular in the repeated submission, both in application forms for aid and in certificates drawn up with a view to its payment, of declarations not reflecting the true position.

Nor can they rely on an infringement of the principle of legal certainty based on the excessive duration of the verification procedure, since, even if the passage of a significant period of time during which the Commission takes no steps in relation to an undertaking and the adoption at the end of such a period of a measure affecting the position of that undertaking may be capable of infringing the principle of legal certainty, the consequences to be drawn depend on the context. In the case of undertakings which have deliberately adopted an attitude which contravenes the rules in force, the passage of a period of 16 months, or 23 months, during which the Commission took no external steps cannot be regarded as unreasonable.

Furthermore, to maintain aids granted to the undertakings concerned, or already paid to them, when the granting and payment of those aids are tainted with flagrant irregularities, would undermine equality of treatment of all applications made to the Commission for Community subsidies of projects for the construction of new fishing vessels.
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International agreements ° Third Lomé ACP-EEC Convention ° Provisions concerning financial and technical cooperation ° Procedure for the award of public supply contracts ° Respective roles of the ACP State and the Commission ° Competence of the ACP State to conclude contracts ° Commission' s power of review ° Doubt concerning the Community origin of goods ° Liability of the Community alleged by reason of the request for evidence made by the Commission ° Excluded

(Third ACP-EEC Convention of 8 December 1984)

Summary

In the context of financial and technical cooperation under the Third ACP-EEC Convention, contracts financed by the European Development Fund remain national contracts which only the ACP States have the responsibility of preparing, negotiating and concluding. For their part, undertakings which submit tenders for or are awarded the contracts in question remain outside the exclusive dealings conducted on this matter between the Commission and the ACP States.

However, the Commission has not only the right but also the duty to ensure, before any payments are made out of Community funds, that the conditions for such payments are in fact fulfilled. To that end, it is under a duty in particular to seek the necessary information in order to ensure the economical administration of the resources of the European Development Fund and to refuse to endorse invoices submitted to it where it has serious grounds for doubting that the conditions for Community financing have been satisfied.

Since one of those conditions is that the goods in question must be of Community origin, proof of which is the responsibility of the successful tenderer, the Commission cannot be accused of unlawful or improper conduct for having, as a result of serious doubts, required the successful tenderer to produce documents or provide information evidencing the Community origin of the goods.
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Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation establishing a quota system in relation to the production of potato starch - Special rules for one Member State - Action brought by an operator of starch plants - Inadmissible

(EC Treaty, Art. 173, fourth para.; Council Regulation No 1868/94)

Summary

An action brought by an operator of potato-starch plants for annulment of Regulation No 1868/94 establishing a quota system in relation to the production of potato starch is inadmissible. The fact that the regulation introduces special rules for one Member State is irrelevant.

That regulation is drafted in general, abstract terms and applicable in all the Member States, without any account being taken of the situation of individual producers, and hence applies to situations which have been determined objectively and has legal effects for a category of persons viewed in a general and abstract manner. The special treatment granted to one Member State forms part of the general objective of the regulation and is therefore not connected with the inherent particularities of the persons affected by the difference in treatment. The regulation cannot be considered to be of individual concern to the applicant merely because of its application to a limited number of ascertained traders, since the regulation is applied by virtue of a situation which it determines objectively in harmony with its objective, namely the grant of Community aid, through the Member States, to starch manufacturers which have benefited from previous Community measures.
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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 - Producers who did not resume production on expiry of their non-marketing undertakings - Breach of the principle of protection of legitimate expectations - No such breach

(EC Treaty, Art. 215, second para. (now Art. 288, second para., EC); Council Regulations Nos 1078/77 and 857/84)

Summary

$$The Community cannot, as a result of the application of Regulation No 857/84 fixing the reference quantity to be allocated under the scheme for additional levies on milk to each producer on the basis of production delivered during a reference year, be held liable with regard to a producer who, on account of a non-marketing undertaking entered into under Regulation No 1078/77 which expired before the entry into force of Regulation No 857/84, did not resume production on that date for reasons unconnected with the non-marketing undertaking and who has failed to adduce objective evidence of any intention to resume production upon expiry of that undertaking.

Producers who have not manifested such an intention cannot claim to have had a legitimate expectation in the possibility of resuming production at some unspecified future date because their position is no different from that of economic operators who did not produce milk and who, after the introduction of the reference quantity scheme, were prevented from commencing such production. 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 49, 67, 71 )