ddrg/super_eurlex huggingface dataset:
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Officials ° Actions ° Action challenging a refusal to admit to a competition ° Pleas based on irregularities in the competition notice not challenged in due time ° Pleas concerning the grounds for the decision challenged ° Admissibility

(Staff Regulations, Art. 91)

Summary

The fact that candidates in a competition are entitled to challenge directly, within the time-limits laid down by Article 91 of the Staff Regulations, a competition notice which, by including conditions preventing them from participating, constitutes a decision by the appointing authority adversely affecting them, does not bar a candidate who has not exercised that right from bringing an action challenging the individual decision not to admit him to a competition when that action is based on irregularities in the competition notice conditions on which the decision is based. A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the competition notice, comprising the justification for the individual decision concerning him taken on the basis of the conditions laid down in the notice, inasmuch as only the decision applying them affects his legal position individually and enables him to ascertain with certainty how and to what extent his personal interests are affected. The principle applies equally where the conditions for admission set out in the notice leave no margin of discretion to the selection board and pose no problems of interpretation as regards their application, having regard to the circumstances of the case.
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1. Competition ° Agreements, decisions and concerted practices ° Restriction on competition ° Prohibition on resale and exports

(EEC Treaty, Art. 85(1))

2. Competition ° Agreements, decisions and concerted practices ° Restriction on competition ° Criteria for assessment ° Anti-competitive object ° Sufficient

(EEC Treaty, Art. 85(1))

3. Competition ° Community rules ° Infringements ° Carried out intentionally ° Meaning

(Regulation No 17 of the Council, Art. 15(2))

Summary

1. By its very nature, a clause prohibiting exports constitutes a restriction on competition, whether it is adopted at the instigation of the supplier or of the customer, since the agreed purpose of the contracting parties is to endeavour to isolate a part of the market.

2. The fact that a clause in an agreement between undertakings, whose object is to restrict competition, has not been implemented by the contracting parties is not sufficient to remove it from the prohibition in Article 85(1) of the Treaty.

3. For an infringement of the Treaty' s competition rules to be considered to have been committed intentionally, it is not necessary for the undertaking to have been aware that it was infringing a prohibition laid down by those rules; it is sufficient that it was aware that the object of the offending conduct was to restrict competition.
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The Court points out that for actions brought by officials to be admissible, the prior administrative procedure laid down in Articles 90 and 91 of the Staff Regulations must have been properly conducted (see, most recently, the judgment in Fioroni v Parliament, cited above). The pre-litigation procedure required under the Staff Regulations where the damage for which compensation is sought has been caused by an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations differs from that required where the damage has been caused by conduct that is not in the nature of a decision. In the first case, the admissibility of the action for compensation is subject to the condition that the person concerned should have submitted to the appointing authority, within the prescribed period, a complaint against the act which caused the damage and to the condition that he should have brought the action within three months of the rejection of his complaint. In the second case, on the other hand, the administrative procedure involves two stages. The person concerned must first submit a request for compensation to the appointing authority. Not until that request has been expressly or implicitly rejected is there an act adversely affecting an official, against which a complaint may be lodged, and only after a decision has expressly or impliedly rejected that complaint may an action be brought before the Court of First Instance (see the judgment of the Court of First Instance in Case T-59/92 Carolina v Commission [1993] ECR II-1129).
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1. Officials ° Actions ° Plea of breach by the institution of an agreement with trade unions and staff associations ° Possibility of pleading such breach ° Finding by the Court of own motion

2. Officials ° Agreement made by an institution solely to govern collective labour relations with the staff associations ° Inadmissibility of plea of breach of the agreement

3. Officials ° Decision adversely affecting an official ° Obligation to state reasons ° Scope

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

Summary

1. The Court must consider of its own motion the question whether an official may validly invoke, in support of an action for annulment of a decision addressed to him individually, the breach by the defendant institution of an agreement made by it with the trade unions and staff associations.

2. Since he is subject to the Staff Regulations and other regulations, an official, acting in his individual capacity, cannot validly invoke, in support of an action for annulment of a decision, relating to him individually, to make deductions from pay following a strike, breach of the provisions relating to work stoppages of an agreement between the defendant institution and the trade unions and staff associations, since that agreement is intended only to govern collective labour relations between the institution and those organizations and it does not give rise, in relation to each official taken individually, to any obligation or to any right.

3. The purpose of the duty to state the grounds for decisions adversely affecting officials laid down in Article 25 of the Staff Regulations is to enable the Community judicature to review the legality of the decision and to give sufficient information to the party concerned so that he may know whether the decision is valid or whether it is defective so that he may challenge its legality. That requirement is satisfied when the measure against which an action is brought has been adopted in circumstances which are known to the official concerned and which enable him to apprehend the scope of a measure concerning him personally.
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Actions for annulment ° Interest in bringing proceedings ° Applicant contesting a decision authorizing national aid in favour of a competitor ° Applicant subsequently declared bankrupt but before payment of the aid ° No longer any interest in bringing proceedings ° No need to give judgment

(EC Treaty, Art. 173)

Summary

There is no need to give a decision on an action for annulment brought by an undertaking against a Commission decision authorizing national aid to a competitor, where the applicant' s interest in bringing the proceedings, if there were any, no longer subsists owing to the fact that it has in the meantime, but before payment of the aid could affect its competitive situation, been declared bankrupt.
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Council ° Public right of access to Council documents ° Refusal of disclosure without balancing the competing interests involved ° Unlawful

(Rules of Procedure of the Council, Art. 5(1); Council Decision 93/731, Art. 4(2))

Summary

Article 4 of Council Decision 93/731 on public access to Council documents lays down exceptions to the principle that the public is to have access to such documents, distinguishing between the cases referred to in Article 4(1), in which access may not be granted where its disclosure could undermine certain interests listed therein, and those referred to in Article 4(2), in which access may be refused to protect the confidentiality of the Council' s proceedings.

It is clear both from the terms of Article 4 and from the objective pursued by the decision, namely to allow the public wide access to Council documents, that the Council must, when exercising its discretion under Article 4(2), genuinely balance the interest of citizens in gaining access to its documents against any interest of its own in maintaining the confidentiality of its deliberations. Citizens enjoy rights under Article 4(2) which the Council cannot defeat merely by relying on the fact that under Article 5 of its Rules of Procedure its deliberations are covered by an obligation of professional secrecy, since that obligation applies, according to that article itself, only in so far as the Council does not decide otherwise.

Where it is established that the competing interests involved were not balanced before disclosure was refused, in particular because the reason given was that the Council' s Rules of Procedure do not allow disclosure of documents such as those requested, relating to the Council' s deliberations, such refusal must therefore be annulled.
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1. Agriculture ° Common organization of the markets ° Milk and milk products ° Buying-in of intervention butter ° Resumption of standing intervention arrangements after their suspension ° Conditions regarding the level of prices and stocks ° Detailed rules for calculating prices and stocks

(Council Regulation No 777/87, Art. 1(4); Commission Regulation No 1547/87, Art. 1(2))

2. Non-contractual liability ° Conditions ° Unlawful conduct ° Damage ° Causal link

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

Summary

1. By not resuming, at the end of 1990 and at the beginning of 1991, the buying-in of butter in accordance with the standing intervention arrangements, the Commission infringed neither Article 1(4) of Regulation No 777/87 modifying the intervention arrangements for butter and skimmed-milk powder nor Article 1(2) of Regulation No 1547/87 laying down detailed rules for applying Regulation (EEC) No 777/87 as regards the buying-in of intervention butter. The Commission was entitled to find that the conditions for resuming those arrangements were not satisfied, by calculating the relationship between the market price of butter and the intervention price in figures accurate to two decimal places and by taking into account quantities accepted under the tendering procedure, whether or not the intervention agencies had put them into store, when calculating the actual stocks of butter held by those agencies.

2. The Community incurs liability under the second paragraph of Article 215 of the Treaty only where the wrongfulness of the conduct alleged against the institutions, the fact of the damage and the existence of a causal link between that conduct and the alleged damage are established.
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Actions for annulment — Actionable measures — Refusal of the Commission to propose appropriate measures pursuant to Article 93(1) of the Treaty — Excluded — (EC Treaty, Arts 93(1) and 173)

Summary

When the Court is considering whether an action for the annulment of a negative decision of an institution is admissible, that decision must be appraised in the light of the nature of the request to which it constitutes a reply. Where, in response to a request made by an undertaking, the Commission refuses to propose to the government of a Member State appropriate measures pursuant to Article 93(1) of the Treaty concerning a general aid scheme, such a refusal is not an act amenable to an action under Article 173 of the Treaty since the act requested cannot be challenged under that provision.

Such an act does not constitute a measure which produces binding legal effects and is such as to affect the interests of that undertaking, since according to the actual wording of Article 93(1) of the Treaty, appropriate measures are merely proposals which the State concerned is not bound to adopt.
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1 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Conduct differing from that agreed by the cartel - Assessment

(ECSC Treaty, Art. 65(5))

2 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding

(ECSC Treaty, Art. 65(5))

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 The fact that an undertaking which has been proved to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed. An undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit.

2 A reduction in the amount of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

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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1 Competition - Agreements, decisions and concerted practices - Trade between Member States affected - Where buyers are prevented from re-selling or exporting goods

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Criteria of assessment - Anti-competitive object - Sufficient to establish the existence thereof

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3 Competition - Community rules - Infringements - Committed intentionally - Meaning

(Council Regulation No 17, Art. 15(2))

4 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Factors to be taken into account

(Council Regulation No 17, Art. 15(2))

Summary

1 By its nature, a clause inserted in an agreement between undertakings, the purpose of which is to prevent a buyer from reselling or exporting goods he has bought, is liable to partition the markets and consequently to affect trade between Member States.

2 The fact that a clause in an agreement between undertakings, the object of which is to restrict competition, has not been implemented by the contracting parties is not sufficient to remove it from the ambit of the prohibition laid down in Article 85(1) of the Treaty (now Article 81(1) EC).

Accordingly, the Commission may properly hold that, where an infringement has been found to exist in the form of the conclusion of, and participation by the parties in, an exclusive distribution agreement in which one of the clauses pursues an object contrary to Article 85(1) of the Treaty, the infringement will not end until the two parties remove the clause in question.

3 It is not necessary for an undertaking to have been aware that it was infringing one of the prohibitions prescribed in the competition rules of the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the object of the contested conduct was to restrict competition. Advice given to the undertaking by a lawyer whom it has consulted cannot exonerate it in that respect.

4 The amount of the fine imposed for infringement of the competition rules of the Treaty must be fixed at a level which takes account of the circumstances and the gravity of the infringement, the last-mentioned matter to be appraised by taking account of the nature of the restrictions on competition.
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Actions for failure to act - Failure cured after the action has been brought - Action rendered devoid of purpose - No need to proceed to judgment

(EC Treaty, Art. 175)
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1 International agreements - Fourth ACP-EEC Lomé Convention - Provisions concerning financial and technical cooperation - Award and implementation of public supply contracts - Action for compensation brought against the Commission - Jurisdiction of the Court of First Instance - Scope - Liability of the Community - Conditions

(EC Treaty, Arts 178 and 215, second para.; Fourth ACP-EEC Lomé Convention of 15 December 1989, Art. 317)

2 Procedure - Costs - Costs unreasonably or vexatiously caused

(Rules of Procedure of the Court of First Instance, Article 87(3), second subpara.)

Summary

3 When hearing an action for compensation brought against the Commission in connection with a supply contract financed by the European Development Fund, under the Fourth ACP-EEC Convention, the Court of First Instance has no jurisdiction to determine what rights may be available to the successful tenderer under the contract concerned with a view to securing its implementation. On the other hand, there is nothing to prevent the Court from examining the conduct of the Commission delegation in the ACP country concerned, in the light of its obligations under Article 317 of the Convention to facilitate and expedite preparation, appraisal and execution of projects and programmes in accordance with the requirements of sound administration. In that regard, even if the delegation did not fully observe those requirements, that fault does not in itself establish the Commission's liability such as to confer on the successful tenderer the right to compensation for the damage which he claims. For the Community to incur liability the applicant must prove not only the illegality of the conduct of which the institution concerned is accused and the fact of the damage but also the existence of a causal link between that conduct and the damage complained of and, moreover, the damage must be a sufficiently direct consequence of the conduct complained of.

4 Where the defendant institution's conduct has contributed to the emergence of the dispute, in that it failed to observe the requirements of sound administration, the applicant cannot be taken to task for instituting proceedings before the Court for review of that conduct and assessment of any resultant damage. In such circumstances, it is therefore appropriate to apply the second subparagraph of Article 87(3) of the Rules of Procedure under which the Court may order a party, even if successful, to pay the costs of proceedings which have been brought about by its own conduct.
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1 Own resources of the European Communities - Repayment or remission of import duties - Article 239 of the Community Customs Code - Commission decision concerning the repayment of import duties in special circumstances - Powers of the Commission - Limits - Application of substantive customs law - Exclusive competence of national authorities

(Council Regulation No 2913/92, Arts 236, 239 and 243; Commission Regulation No 2454/93, Art. 905)

2 Own resources of the European Communities - Repayment or remission of import duties - Article 239 of the Community Customs Code - Commission decision concerning the repayment of import duties in special circumstances - Duty to state reasons - Scope

(EC Treaty, Art. 190; Council Regulation No 2913, Art. 239)

Summary

1 Applications for the repayment or remission of import duties on equitable grounds, which are submitted to the Commission pursuant to Article 239 of Regulation No 2913/92 establishing the Community Customs Code, in conjunction with Article 905 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, are not concerned with whether or not the provisions of substantive customs law have been correctly applied by the national customs authorities. Under Article 236 of the Customs Code such a question falls within the exclusive competence of the national authorities, whose decisions may be challenged before the national courts pursuant to Article 243 of the Customs Code; those courts may make a reference to the Court of Justice pursuant to Article 177 of the Treaty.

2 When it adopts a position on applications for repayment of import duties submitted pursuant to the general equitable provision in Article 239 of the Customs Code, it is for the Commission to indicate in respect of each such application whether or not special circumstances within the meaning of that provision exist and to give reasons for its decision on that point.

That requirement is not satisfied by a Commission decision rejecting an application submitted on the basis of Article 239 of the Customs Code, the grounds of which give the reasons why the Commission considers that the import duties imposed by the national customs authority are legally payable, and the operative part of which answers the questions whether the circumstances of the case enabled the importers to be exempted, pursuant to the general equitable provision, from payment of the duties which were, according to the formal legislative provisions, legally payable. Such a decision is therefore vitiated by a failure to state reasons.
When the Parliament engages freelance interpreters as auxiliary servants on the basis of Article 78 of the Conditions of employment of other servants, it is entitled to deduct Community tax from their remuneration pursuant to the first indent of Article 2 of Regulation No 260/68 laying down the conditions and procedure for applying the tax for the benefit of the European Communities.

In that regard, since the Parliament has a legal basis for levying Community tax on the remuneration of interpreters engaged on that basis, it is correspondingly required to levy that tax and, in light of the budgetary aspect of the tax, it has no discretion in the matter. When it states, in Article 2, that persons coming under the Conditions of employment of other servants ‘shall be liable to ... [Community] tax’ and, in Article 9, that ‘[t]he tax proceeds shall be entered as revenue in the budgets of the Communities’, Regulation No 260/68 leaves no room for doubt as to the obligation imposed on the Parliament in that connection.

(see paras 53, 64 and 64)

See: 15/76 and 16/76 France v Commission [1979] ECR 321, para. 28; T-109/96 Gebhard v Commission [1998] ECR II-2785, para. 45