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

3 May 2001

Case T-99/00

Ignacio Samper

v

European Parliament

‛Officials — Reestablishment of career — Consideration of comparative merits — Criteria — Principle of equal treatment’

Full text in French II-507

Application for:

annulment of the Parliament's decision of 9 June 1999 re-establishing the applicant's career, in so far as it promotes him to grade A4 with effect from 1 January 1998 rather than 1 January 1997

Held:

The decision of the Parliament of 9 June 1999 re-establishing the applicant's career is annulled, in so far as that decision specifies 1 January 1998 as the date on which his promotion to grade A4 is to take effect. The defendant is ordered to pay all the costs.

Summary

Officials — Promotion — Consideration of comparative merits — Obligation to base choice on consideration of the comparative merits of all the candidates eligible for promotion — Principle of equal treatment

(Staff Regulations, Art. 45(1))

In a promotion procedure, the appointing authority must, under Article 45(1) of the Staff Regulations, base its choice on a comparative consideration of the periodical reports and respective merits of the candidates eligible for promotion. The requirement under that article that the comparative merits of candidates for promotion and their staff reports should be considered is an expression of both the principle of equal treatment of officials and the principle that they should have reasonable career prospects. Those principles would be breached if such consideration were restricted to the officials eligible for promotion within one directorate-general.

(see para. 38)

See: T-13/95 Kyrpitsis v ESC [1996] ECRSC I-A-167, II-503, para. 33
Keywords

Summary



Keywords

1. Officials - Actions - Judgment annulling a decision - Effects - Obligation to take measures to comply with that judgment - Scope - Lodging of an appeal - Obligation, in the absence of a suspension of application ordered by the Court of Justice, to adopt the necessary measures within a reasonable period without awaiting the judgment on the appeal

(Art. 233 EC)

2. Officials - Non-contractual liability of the institutions - Failure to comply with the obligation to give effect to a judgment annulling a decision - Service-related fault

(Art. 233 EC)

3. Officials - Non-contractual liability of the institutions - Failure to comply with the obligation to give effect to a judgment annulling a decision - Service-related fault giving rise per se to non-material damage

Summary

1. As an appeal to the Court of Justice does not have suspensory effect, an institution responsible for an act that has been declared void by the Court of First Instance is required to take the measures necessary to comply with the judgment annulling that act within a reasonable period without awaiting the judgment which the Court of Justice will be required to deliver on the appeal.

The institution cannot argue that awaiting the judgment of the Court of Justice constitutes, in those circumstances, a proper administration of justice. It is for the Court of Justice alone, should an application for suspension be brought before it, to order that implementation of the contested judgment be suspended if it considers that the circumstances so warrant.

( see paras 35-38 )

2. The conduct of an institution in refusing to take any specific measure to comply with a judgment of the Court of First Instance annulling a decision amounts to an infringement of Article 233 EC and for that reason constitutes unlawful conduct capable of rendering the Community liable.

( see para. 43 )

3. The refusal by a Community institution or body to comply with a judgment of the Court of First Instance, even if such a refusal is limited to the period between delivery of that judgment and that of the judgment to be delivered by the Court of Justice on the appeal, adversely affects the confidence that litigants must have in the Community judicial system, which is based, in particular, on respect for the decisions made by the Community Courts. Consequently, irrespective of any material damage which might result from non-compliance with a judgment, an express refusal to comply with it will in itself involve non-material damage for the party who has obtained a judgment in his favour.

( see para. 51 )
Heads of claim directed against a decision which is replaced during the course of proceedings may be regarded as being directed against the replacement decision because the latter decision constitutes a new factor which entitles the applicant to amend its heads of claim and pleas in law. It would, in fact, not be in the interests of the administration of justice and would be contrary to the requirement of procedural economy to oblige the applicant, in such an eventuality, to make a fresh application to the Court.

The deliberations of the Committee on Excise Duties, and the documents of that committee, are to be regarded as being the deliberations and documents of the Commission. The main task of the committee, which was constituted in pursuance of a Community act, is to assist the Commission, which presides over it and provides its secretariat. The Commission thus draws up the minutes which the committee adopts. In addition, it appears that this committee does not have its own administration, budget, archives or premises, still less an address of its own. Consequently, the committee is not a natural or legal person, nor a Member State or any other national or international body, and cannot be regarded as another ‘Community institution or body’ within the meaning of the code of conduct adopted by Decision 94/90 on public access to Commission documents.

Given that the Committee on Excise Duties is thus to be regarded as part of the Commission, the Commission is entitled to rely upon the exception relating to the protection of the confidentiality of its deliberations where the documents to which access has been requested concern the deliberations of that committee.

(see paras 37-38)
Paragliding cannot be regarded as parachuting within the meaning of the third indent of Article 4(1)(b) of the Rules on the insurance of officials of the European Communities against the risk of accident and occupational disease. The two sports are different.

Under the third indent of Article 4(1)(b) of the Rules on the insurance of officials of the European Communities against the risk of accident and occupational disease, ‘accidents shall not be covered by Article 73 of the Staff Regulations if they are due to ... [p]ractice of sports regarded as dangerous, such as boxing, karate, parachuting, speleology, underwater fishing and exploration with breathing equipment including containers for the supply of air or oxygen’.

That provision, in so far as it defines the concept of sports regarded as dangerous excluded from the coverage of risks provided for by Article 73 of the Staff Regulations, by reference to a list given for guidance of sports regarded as such, is in breach of the principle of legal certainty and is therefore unlawful.

The principle of legal certainty cannot tolerate a situation where an official who is considering practising a sport not mentioned in the list contained in the third indent of Article 4(1)(b) of the Rules is required to weigh up whether that sport, in the light of the degree of similarity which it displays with one of those referred to in that list, may be considered by the Community administration to be regarded as dangerous. The same principle likewise cannot allow that administration, when confronted with a request for the application of Article 73 of the Staff Regulations to an accident which has occurred during the practice of a sporting activity, to have discretion to assess whether the activity in question belongs to the category of sports regarded as dangerous within the meaning of the abovementioned rules.

(see paras 64-72, 84)

See: 169/80 Gondrand Frères and Garancini [1981] ECR 1931, para. 17; 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, para. 30; 92/87 and 93/87 Commission v France and United Kingdom [1989] ECR 405, para. 22; T-23/95 Bitha v Commission [1996] ECR-SCI-A-13 and II-45, paras 40 and 41; C-143/93 Van Es Douane Agenten [1996] ECR I-431, para. 27
JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

23 January 2002

Case T-101/00

Miguel Ángel Martín de Pablos

v

Commission of the European Communities

‛Officials — Open Competition — Non-admission of the applicant to the oral test — Action for annulment — Action for damages’

Full text in Spanish II-1

Application for:

first, annulment of the decision of the selection board refusing to admit the applicant to the oral test in open competition COM/A/11/98 and, second, compensation for the damage allegedly caused by the late notification of that decision.

Held:

The application is dismissed. The parties are ordered to bear their own costs, including those relating to the proceedings for interim measures.

Summary

Officials — Competitions — Selection board — Rejection of candidature — Obligation to state reasons — Scope — Observance of the secrecy of the board's proceedings (Staff Regulations, Art. 25; Annex III, Art. 6) Officials — Actions — Pleas in law — Misuse of powers — Definition — Presumption of legality attaching to acts of the institutions — No evidence calling in question the legality of the act — Consequences
Keywords

Summary



Keywords

1. Actions for annulment - Action brought against a decision merely confirming an earlier decision - Inadmissible - Definition of a confirmatory decision - Identical decision taken after re-examination of the circumstances - Excluded from the definition

(Art. 230 EC)

2. European Community public procurement - Conclusion of a contract following an invitation to tender - Discretion of the institutions - Judicial review - Limits

Summary

$$1. An application for annulment brought against a decision which merely confirms an earlier decision is inadmissible. A decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation of the addressee of the earlier measure. The fact that the Parliament does not resile from its initial view after conducting a fresh examination of the arguments put forward by the addressee of the earlier measure is not sufficient to allow a decision to be regarded as purely confirmatory of an earlier decision.

( see paras 30, 35 )

2. In procedures for the award of a contract following a call for tenders, the Community institutions are required to ensure that the conditions laid down in an invitation to tender do not induce potential tenderers to infringe the national legislation applicable to their business. Since the interpretation of national law is a matter solely for the national authorities, the Community Court has merely to determine whether the contracting institution, in a decision rejecting a request made by tenderer whose tender was not accepted concerning the validity of the contract entered into by that institution and the successful tenderer, committed a manifest error of assessment in its interpretation of the national legislation.

( see para. 63 )
Notwithstanding its discretion with regard to the procedures for and content of the tests in a competition, the selection board is bound by the wording of the notice of competition as published. The tesic function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post, in order to enable them to judge, first, whether they should apply for it and, second, what supporting documents are important for the proceedings of the selection board and must therefore be enclosed with the application.

With regard, in particular, to the conditions for admission to the competition relating to professional experience, the actual assessment of the level of that experience must take place within the framework established by the wording of the notice of competition and cannot in any way allow the selection board to add any condition which does not actually appear in the notice.

(see paras 35-36)

See: 225/87 Belardinelii v Court of Justice [1989] ECR 2353, para. 13; T-214/99 Carrasco Beultet v Commission [2000] ECRSCI-A-257 and II-1169, para. 69; T-95/00 and T-96/00 Zaur-Gora and Dubigh v Commission [2001] ECRSC I-A-79 and II-379, para. 47, and the case-law cited
State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Community courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission's assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC.

In order to determine whether a State measure constitutes aid it is necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions and whether that advantage has been granted directly or indirectly through State resources or constitutes an additional charge for the State or for bodies designated or established by the State for that purpose.

Where a public body, linked to a third party by a supply contract from which it cannot release itself, chooses, given the losses it would incur through performance of that contract, to assign performance of its obligation to another operator in consideration of the grant of a subsidy of an amount less than the total loss that it would have incurred under its contractual supply obligation, then that subsidy cannot be regarded as State aid within the meaning of Article 87(1) EC if the comprehensive arrangement of which it forms a part represents a normal commercial transaction in the course of which the various parties behaved as rational operators in a market economy and the public entity involved did not have regard to any economic or social policy objectives.

(see paras 38-39, 43-54)
It follows that any ground of challenge which was not relied on in the complaint prior to action, even though the official concerned was given the opportunity to put it forward, must be rejected as inadmissible. In so far as that question of admissibility has not been raised by the defendant, the Court may consider it of its own motion under Article 113 of the Rules of Procedure since it is a matter of public policy.

The purpose of the procedure prior to bringing an action is to facilitate the amicable settlement of disputes arising between officials or other servants and the administration. To enable such a procedure to attain its objective, the appointing authority must be in a position to know sufficiently precisely the criticisms made by those concerned against the contested decision.

The rationale for the derogation concerning the grant of the expatriation allowance, provided for in the last sentence of Article 4(1 )(a) of Annex VII to the Staff Regulations, in favour of officials who, during the reference period, did work for an international organisation or for a State other than that in which their place of employment is situated, lies in the fact that, in such circumstances, those officials cannot be deemed to have established lasting ties with the country in which they are employed.

Although that derogation cannot be restricted solely to persons who have served on the staff of another State or of an international organisation, since it covers all ‘circumstances arising from work done for another State or for an international organisation’, its application nevertheless requires that the official concerned have at least had direct legal ties with the institution or State in question.

Any person who has not been employed directly by an institution under a contract or in any other form, in accordance with the Conditions of Employment of Other Servants or other Community legislation, conferring entitlement to application of the derogation provided for in the abovementioned article, and who has done work only under temporary work contracts with temporary employment agencies which have themselves entered into contracts for the supply of temporary staff with that institution, cannot claim to have had a direct legal relationship with that institution.

(see paras 50-51, 58, 69)

See: 1322/79 Vinera v Commission [1981] ECR 127, para. 8; 246/83 De Augelis v Commission [1985] ECR 1253, para. 13; T-43/93 Lo Giudice v Parliament [1995] ECRSC I-A-57 and II-189, para. 34; T-72/94 Diamantaras v Commission [1995] ECRSC I-A-285 and II-865, para. 52; T-60/00 Liaskou v Council [2001] ECRSC I-A-107 and II-489, para. 49
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

5 December 2002

Case T-249/00

Paul Edwin Hoyer

v

Commission of the European Communities

‛Temporary staff — Termination of contract — Calculation of the period of notice — Days of leave not taken’

Full text in Dutch II-1249

Application for:

annulment of the Commission's decisions of 14 June 2000 concerning the calculation of the date of expiry of the period of notice on termination of the applicant's contract as a member of the temporary staff (Decision R/78/2000) and establishing the number of days of leave not taken on his departure (Decision R/26/2000).

Held:

The application is dismissed. The parties are ordered to bear their own costs.

Summary

Officials — Sick leave — Proof of sickness — Production of a medical certificate enabling the administration to determine the need for a medical officer's examination — Production as soon as possible

(Staff Regulations, Arts 59 and 60)

Under Article 59 of the Staff Regulations, when an official reports that he is unable to perform his duties because of sickness or accident, he must notify his institution of his incapacity as soon as possible and produce a medical certificate justifying his absence if he is absent for more than three days. The administration may not deny the validity of such a medical certificate and claim that the absence of the official concerned is unauthorised unless it has first required him to undergo a medical examination. The duty to arrange such an examination before refusing to accept a medical certificate necessarily has as its corollary a duty on the part of the official to submit, as soon as possible, a certificate showing conclusively and in sufficient detail the nature of the incapacity on which he intends to rely, failing which the provisions of Articles 59 and 60 of the Staff Regulations would be rendered ineffective.

It follows that an official who provides evidence of incapacity to perform his duties because of sickness is not automatically entitled to sick leave irrespective of whether or not he produces a medical certificate, since, if that were the case, the institution would be unable, where appropriate, to carry out its task of verification, the need for which must be determined on the basis of the particulars shown in the medical certificate.

(see paras 42-43)

See: T-135/95 Z v Commission [1996] ECRSC I-A-519 and II-1413, paras 32 and 34; T-29/96 Schoch v Parliament [1997] ECRSC I-A-219 and II-635, para. 38
Keywords

Subject of the case

Operative part



Keywords

Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law conferring rights on individuals – No discretion for the institution – Mere infringement of Community law sufficient (Art. 288, second para., EC) (see paras 79-83)

2. Actions for damages – World Trade Organisation – Not possible to rely on the WTO Agreements in order to contest the lawfulness of a Community act – Exceptions – Community measure intended to implement a WTO Agreement or expressly and specifically referring thereto – Community regime governing the import of bananas – Incompatibility with the WTO rules established by the Dispute Settlement Body of the WTO – Judicial review of the lawfulness of that regime under the WTO rules – Excluded (Art. 288, second para., EC; Council Regulations Nos 404/93 and 1637/98; Commission Regulation No 2362/98) (see paras 102, 105-107)

3. Non-contractual liability – Conditions – No unlawful conduct on the part of the Community institutions – Real damage, causal link and unusual and special damage – Cumulative requirements (Art. 288, second para., EC) (see para. 149)

4. Non-contractual liability – Conditions – Retention of a Community banana import regime incompatible with the WTO Agreements – Damage arising from the adoption of a retaliatory measure by the United States authorities – Causal link (Art. 288, second para., EC) (see paras 166-167, 172-174, 178)

5. Non-contractual liability – Conditions – No unlawful conduct on the part of the Community institutions – Damage arising from the incompatibility of the Community regime governing the import of bananas with the WTO Agreements – Unusual damage – None – Liability of the Community – Excluded (Art. 288, second para., EC) (see paras 183-184, 186, 191, 193)

Subject of the case

Re:

ACTION for compensation in respect of the damage allegedly caused by the levying by the United States of America of increased customs duty on imports of the applicants’ cotton bed linen, as authorised by the Dispute Settlement Body of the World Trade Organisation (WTO), following a finding that the Community regime governing the import of bananas was incompatible with the agreements and understandings annexed to the Agreement establishing the WTO.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the applicants to bear, in addition to their own costs, the costs incurred by the Council and the Commission;

3. Orders the Kingdom of Spain to bear its own costs.
Case T-57/00





Banan-Kompaniet AB and Skandinaviska Bananimporten AB

v

Council of the European Union

and Commission of the European Communities







«(Bananas – Common organisation of the markets – Decision 94/800/EC – Regulation (EC) No 478/95 – Export licence scheme – Action for damages)»

Judgment of the Court (Fifth Chamber), 6 March 2003

Summary of the Judgment
Case T-369/00





Département du Loiret

v

Commission of the European Communities





«(Action for annulment – State aid – Regulation (EC) No 659/1999 – Article 15 – Limitation period – Recovery of aid – Act interrupting the limitation period)»

Judgment of the Court of First Instance (Fifth Chamber, Extended Composition), 10 April 2003

Summary of the Judgment

1.. State aid – Administrative procedure – Regulation No 659/1999 – Limitation period for recovery of unlawful aid – Application to aid granted before the regulation entered into force

(Council Regulation No 659/1999, Art. 15)

2.. State aid – Administrative procedure – Excessive delay – Assessment in the light of the Commission's becoming aware of the aid



3.. State aid – Planned aid – Not notified by the Member State concerned – Legitimate expectation on the part of the local authority which granted the aid – None

(Arts 87 EC and 88 EC)

4.. State aid – Recovery of unlawful aid – Request for information addressed to a Member State concerning aid which may have been granted unlawfully – Effect – Interruption of the limitation period established by Article 15 of Regulation No 659/1999

(Council Regulation No 659/1999, Arts 2(2), 5(1) and (2), 10(2) and 15)

5.. State aid – Recovery of unlawful aid – Ten-year limitation period laid down in Article 15 of Regulation No 659/1999 – Application to both the Member State concerned and the beneficiary and third parties – Interruption of the limitation period by a request for information of which the beneficiary was unaware – Not relevant

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 15)

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