Case T-20/01: Action brought on 25 January 2001 by Concetta Cerafogli and 5 other employees of the European Central Bank against the European Central Bank
Date: 2001-04-07
Institutions: Court of First Instance
Subjects: European Central Bank, action for annulment (EU), allowances and expenses, labour law, white-collar worker, work contract

C 108/24

EN

Official Journal of the European Communities

7.4.2001

The applicant claims that the Court should:

— Order the defendant to pay damages pursuant to Article
288 EC for the losses suffered by it through the unlawful
measures
by Commission Regulation
2362/98 (1), all sums to be increased with compensatory
interest at a rate of 8 % to be applied from the day on
which the damage materialised.

introduced

— Order the defendant to pay legal interest on such sums as

are found to be due at a rate of 8 %

— Order the defendant to pay the costs of these proceedings

Pleas in law and main arguments

The applicants operate their business in the EC as a single
economic entity, and the core of the their operations is the
marketing, distribution and sourcing of bananas.

As the factual and legal background for their claims, the
applicants have indicated that
in 1993 the EC ‘banana
regime’ was introduced through Council Regulation 404/93 (2).
Following a dispute settlement procedure in the WTO finding
aspects of this regime to be WTO-incompatible, the EC agreed
to make its banana regime compatible by 1 January 1999.
This was purportedly done by Council Regulation No
1637/98 (3) and Commission Regulation No 2362/98. How-
ever, the EC’s amended banana regime was also found to be
WTO-incompatible in two supplemental WTO rulings issued
in April 1999 which related inter alia to the system for
distribution of import licences and the division of a yearly
tariff rate quota of 2 553 000 tonnes opened for imports from
Latin America into ‘country allocations’. In spite of those
rulings, these allegedly unlawful measures remain in force.

The applicants state that as a result of the discriminatory
licences as introduced by Regulation No
distribution of
2362/98, they have suffered a loss of market share and have
been forced to buy or lease the use of import licences and to
accept unfavourable contract conditions. The applicants claim
to have sustained substantial damage and losses caused by the
defendant’s breach of law, and under Articles 235 and 288 EC
they claim compensation for a continuing loss of profit and
for non-recurring costs which would not have been incurred
had the measures in the regulation not been introduced.

The applicants submit that Regulation No 2362/98 is unlawful
in that it infringes superior rules of law,
i.e. WTO rules
and obligations, as well as the fundamental policy of the
Community to amend the banana regime in order to make it
WTO-compatible.

Furthermore, the applicants allege that the measures intro-
duced via the regulation violate the limits of the Commission’s
implementing powers as to the WTO-compatibility of the
licensing regime and the division into ‘country allocations’,
and that the Commission has acted in breach of its clear
mandate from the Council.

Finally, the applicants contend that the measures introduced
by Regulation No 2362/98 infringe the principle of non-
discrimination, the freedom to pursue trade or business as well
as the principle of good faith in international law and the
legitimate expectations traders can derive from that.

(1) Commission Regulation (EC) No 2362/98 of 28 October 1998
laying down detailed rules for the implementation of Council
Regulation (EEC) No 404/93 regarding imports of bananas into
the Community (OJ 1998 L 293, p. 32).

(2) OJ L 47, 25.2.1993, p. 1.
(3) OJ L 210, 28.7.1998, p. 28.

Action brought on 25 January 2001 by Concetta Cerafogli
and 5 other employees of the European Central Bank
against the European Central Bank

(Case T-20/01)

(2001/C 108/45)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 25 January 2001 by Concetta Cerafogli and 5 other
employees of the European Central Bank, represented by
Norbert Pflüger, Regina Steiner and Silvia Mittländer, Rechtsan-
wälte, with an address for service in Luxembourg.

The applicants claim that the Court should:

(1)

annul the rule laid down in Article 8.1.0 of the provisional
Staff Rules, as brought into force by the European Central
Bank with effect from 16 August 2000, and the rule laid
down in Article 7.2.0 of the provisional Staff Rules, as
brought into force with effect from 26 September 2000,
alternatively annul those rules as regards the relationship
between the defendant and the applicants;

(2)

annul Administrative Circular 01/2000 concerning the
Rules for Business Travel, alternatively annul Administrat-
ive Circular 01/2000 as between the defendant and the
applicants;

7.4.2001

EN

Official Journal of the European Communities

C 108/25

(3)

annul
the contractual rules to be contained in the
applicants’ employment documentation whereby future
amendments to the Conditions of Employment or to the
provisional Staff Rules are to form the subject-matter of
contractual obligations;

(4)

annul the decision of the President of the defendant of
27 November 2000 rejecting the applicant’s grievance;

(5) order the defendant to pay the costs.

Pleas in law and main arguments

By their application, the applicants, who are in an employment
relationship of unlimited duration with the European Central
Bank, seek annulment of two rules contained in the defendant’s
provisional Staff Rules (‘SR’), which lay down a time-limit for
commencing the administrative review procedure. Until the
amendment of those rules, there was no time-limit. The
applicants regard the amendment of the provisions of Articles
their
8.1.0 and 7.2.0 of
contractual rights.

the SR as an infringement of

In addition, the applicants’ business travel was previously
governed by Administrative Circular 07/1998. The rules
applying to the applicants were altered, to the detriment of
the applicants, by Administrative Circular 01/2000. In the
applicants’ view, those rules affect the essence of their employ-
ment relationships, and the amendment of them likewise
constitutes an infringement of their contractual rights.

The applicants further claim that, upon concluding their
contracts, they were compelled to accept a rule whereby future
amendments to the Conditions of Employment or to the SR
are to form the subject-matter of contractual obligations.
However, the defendant is not empowered to lay down rules
in the nature of employment legislation, and can therefore
neither unilaterally alter substantive provisions for the reim-
bursement of travel costs nor unilaterally change the contrac-
tual obligations by means of the new rules contained in
Articles 7.2.0 and 8.1.0 SR.

Action brought on 31 January 2001 by Francisco Miguel
Viana França against Commission of the European Com-
munities

The applicant claims that the Court should:

— annul the implied decision of the appointing authority
refusing to grant special
leave for elections and the
relevant travelling time from the afternoon of 10 June to
the morning of 15 June 1999 and from the afternoon of
7 October to the morning of 12 October 1999;

— order the Commission to pay the costs.

Pleas in law and main arguments

I.

L a c k o f c o m p e t e n c e

The decision of the appointing authority of 31 March 2000,
signed by the Deputy Director-General for Competition, on
the basis of which 6 days of annual leave were deducted,
amounting to an implied refusal of the applicant’s request for
special leave for elections and the relevant travelling time,
infringes the provisions in force relating to the powers of the
appointing authority and to any decisions to delegate authority,
inasmuch as it was signed by someone who was not empow-
ered to do so.

II.

I n f r i n g e m e n t o f
a n d
C o m m i s s i o n o f 2 1 F e b r u a r y 1 9 9 6

t h e S t a f f R e g u l a t i o n s
t h e

i n s t r u c t i o n o f

i n t e r n a l

t h e

The implied refusal of the appointing authority infringes
Article 57 of the Staff Regulations and Annex V respectively,
instruction of the Commission of
as well as the internal
21 February 1996, which provides that travelling time is to be
granted only upon submission of documentary evidence of
participation in the elections. The requirement to submit any
other documentary evidence other than that required for
special leave and the relevant travelling time for elections has
no legal basis.

(Case T-25/01)

(2001/C 108/46)

III.

(Language of the case: Portuguese)

B r e a c h o f t h e d u t y t o c o o p e r a t e i n g o o d
f a i t h
p r o -
p o r t i o n a l i t y

p r i n c i p l e

a n d

t h e

o f

o f

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 31 January 2001 by Francisco
Miguel Viana França, residing in Brussels, represented by
Gonçalo Gentil Anasta´cio, advogado.

First, the applicant was asked, in February 2000, to submit
documents relating to the events which took place in June and
October 1999, despite the fact that no provision of law obliged
the applicant
it was
unreasonable to expect him to possess them.

to keep such documents and that