Case C-446/00 P: Appeal brought on 1 December 2000 by P.-J. Cubero-Vermurie against the judgment delivered on 3 October 2000 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-187/98 between P.-J. Cubero-Vermurie and the Commission of the European Communities
Date: 2001-02-10
Institutions: Court of Justice
Subjects: European official, General Court (EU), action for annulment (EU), equal treatment, promotion, regulations for civil servants

C 45/10

EN

Official Journal of the European Communities

10.2.2001

— The allocation of the reduction of the ecopoints
over several years carried out in Article 1 of the
contested regulation (‘stretching model’) and the
general
introduction of the stretching model by
Article 2(1) of the contested regulation are, in their
content, in clear contradiction of the primary law
rules in Protocol No 9.

Appeal brought on 1 December 2000 by P.-J. Cubero-
Vermurie against the judgment delivered on 3 October
2000 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-187/98 between
P.-J. Cubero-Vermurie and the Commission of the Euro-
pean Communities

The legal view clearly underlying the contested
regulation, namely that ‘absolute priority’ is to be
given to the free movement of goods and the
internal market, as opposed to other provisions and
policies of primary law, is not shared by the Republic
of Austria. Even the functioning of the internal
market is to be ensured only in compliance with the
requirements of environmental protection. It would
also have been possible to avoid detriment to the
internal market with the use of measures less
restrictive of the implementation of Protocol No 9.

— The reduction in ecopoint quotas carried out by the
contested regulation takes account only of a (pure)
causation principle and fails to take due account
also of the solidarity principle and the principle of
proportionality. Moreover, the use of the traffic
volume figures in the — arbitrarily chosen — years
1995 to 1997, in which the 108 % limit was not
exceeded, for comparison with figures for 1999, so
the
as to determine the ‘main perpetrator’ of
exceeding of
foundation in
(primary) law and leads to a disproportionate result.

that limit,

lacks all

— (In the alternative) Legal infringements and insufficient
statement of reasons when applying the calculation
method in accordance with paragraph 3 of Annex 5 to
Protocol No 9 to the 1994 Act of Accession: The system
underlying the contested regulation is, in view of the
extraordinary reduction in the number of ecopoints,
wrongly based on the exclusion, or failure to take account
of, ‘illegal’ transit journeys without payment of ecopoints.
There is no legal basis for that in Protocol No 9. An
interpretation of the calculation method laid down in
paragraph 3 of Annex 5 that corresponds to the declared
aims of Protocol No 9 can only be one which allows the
damage to the environment and to health arising from
‘illegal’ journeys also to be included in the calculation.

— (In the alternative) Infringement of the EC Treaty and/or
Protocol No 9 to the 1994 Act of Accession on account
of insufficient legal basis.

(1) OJ No L 241, 26.9.2000, p. 18.
(2) OJ No L 341, 30.12.1994, p. 20.

(Case C-446/00 P)

(2001/C 45/20)

in Case

An appeal against the judgment delivered on 3 October 2000
by the Fifth Chamber of the Court of First Instance of the
between
European Communities
P.-J. Cubero-Vermurie and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 1 December 2000 by P.-J. Cubero-
Vermurie, represented by E. Boigelot, of the Brussels Bar, with
an address for service in Luxembourg at the Chambers of
L. Schiltz, 2 Rue du Fort Rheinsheim.

T-187/98

The appellant claims that the Court should:

(1) declare the appeal admissible and well founded;

(2)

consequently:

(a)

set aside the contested judgment;

(b)

itself determine the case and, upholding the appel-
lant’s initial claim:

— annul the appointing authority’s decision of
6 April 1998 not to promote the appellant to
grade A 5 in the context of the 1998 promotion
procedure;

— annul the decision of 9 October 1998 expressly
rejecting the complaint against the decision
annulment of which is sought, that complaint
having been submitted by the appellant on
27 April 1998 and registered in the Secretariat-
General on 6 May 1998 under number
R/436/98;

— order the Commission of the European Com-
munities to pay to the appellant compensation
for the combined material and non-material
damage suffered by him, fixed on an equitable
basis in the sum of BEF 250 000;

— order the Commission of the European Com-
munities to pay all the costs in any event, both
of the first-instance proceedings and of the
present appeal.

10.2.2001

EN

Official Journal of the European Communities

C 45/11

Pleas in law and main arguments

Pleas in law and main arguments

— Infringement of Community law, in particular Article 33

of the Statute of the Court of Justice:

The pleas in law and main arguments are similar to those
advanced in Case C-443/00 (2).

— error of law and inconsistency in the grounds of the
contested judgment, inasmuch as the Court of First
Instance declared inadmissible the head of claim
alleging infringement of the third and fourth para-
graphs of Article 24 of the Staff Regulations;

— inconsistency in the grounds of the contested judge-
ment and error of lax, inasmuch as the contested
judgment does not accept that the Commission
committed a manifest error of assessment;

— inconsistency in the grounds of the contested judge-
ment and error of law, inasmuch as the Court of
First
the appellant had not
established any manifest error of assessment in the
context of the comparison of his merits with those
of other officials, more particularly Mr G;

Instance held that

— error of law and inconsistency in the grounds of the
contested judgement, inasmuch as the Court of First
Instance decided that there had been no breach of
the principles of equal treatment and fairness in the
present case.

Action brought on 6 December 2000 by the Commission
of the European Communities against the French Republic

(Case C-449/00)

(2001/C 45/21)

An action against the French Republic was brought before the
Court of Justice on 6 December 2000 by the Commission of
the European Communities, represented by Xavier Lewis, of
its Legal Service, acting as Agent, with an address for service
in Luxembourg at the office of Carlos Go´ mez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.

The Commission of the European Communities claims that
the Court should:

(1) declare that, by failing to bring into force within the
prescribed period the laws, regulations and administrative
measures, including provisions imposing penalties, which
are necessary in order to comply with Directive 95/46/EC
the Council of
of
24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of such data (1), the French Republic has failed
to comply with its obligations under Article 32 of that
directive;

the European Parliament and of

(2) order the French Republic to pay the costs.

(1) OJ L 281 of 23.11.1995, p. 31.
(2) See p. 8 of this Official Journal.

Action brought on 6 December 2000 by the Commission
of the European Communities against the Grand Duchy
of Luxembourg

(Case C-450/00)

(2001/C 45/22)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice on 6 December 2000 by
the Commission of the European Communities, represented
by Xavier Lewis, of its Legal Service, acting as Agent, with an
address for service in Luxembourg at the office of Carlos
Go´ mez de la Cruz, of
its Legal Service, Wagner Centre,
Kirchberg.

The Commission of the European Communities claims that
the Court should:

(1) declare that, by failing to bring into force within the
prescribed time-limit the laws, regulations and adminis-
trative measures, including provisions imposing penalties,
which are necessary in order to comply with Directive
95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the
free movement of such data (1), the Grand Duchy of
Luxembourg has failed to comply with its obligations
under Article 32 of that directive;

(2) order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are analogous to those
advanced in Case C-443/00 (2).

(1) OJ L 281 of 23.11.1995, p. 31.
(2) See p. 8 of this Official Journal.