Case C-277/01 P: Appeal brought on 13 July 2001 by European Parliament against the judgment delivered on 3 May 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-99/00 between Ignacio Samper and European Parliament
Date: 2001-09-01
Institutions: Court of Justice
Subjects: European Parliament, European official, General Court (EU), action for annulment (EU), equal treatment, regulations for civil servants

1.9.2001

EN

Official Journal of the European Communities

C 245/15

Information Action brought on 12 July 2001 by the
Commission of the European Communities against the
Kingdom of Belgium

Appeal brought on 13 July 2001 by European Parliament
against the judgment delivered on 3 May 2001 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-99/00 between Ignacio
Samper and European Parliament

(Case C-274/01)

(2001/C 245/27)

(Case C-277/01 P)

(2001/C 245/28)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 12 July
2001 by the Commission of the European Communities,
represented by M. Wolfcarius, acting as Agent.

The applicant claims that the Court should:

1. Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Council Directive 98/76/EC of 1 October 1998 amending
Directive 96/26/EC on admission to the occupation of
road haulage operator and road passenger transport
operator and mutual recognition of diplomas, certificates
and other evidence of formal qualifications intended to
facilitate for these operators the right to freedom of
establishment
in national and international transport
operations (1), the Kingdom of Belgium has failed to fulfil
its obligations under that directive; and

An appeal against the judgment delivered on 3 May 2001 by
the Fourth Chamber of the Court of First Instance of the
European Communities in case T-99/00 between Ignacio
Samper and European Parliament was brought before the
Court of Justice of the European Communities on 13 July
2001 by European Parliament, represented by H. Von Herzen
and D. Moor, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance;

— give a final decision on the dispute by dismissing
the action for annulment brought by Mr Samper as
unfounded;

— in the alternative, refer the case back to the Court of First
Instance for it to adjudicate anew on the action for
annulment brought by Mr Samper;

2. Order the Kingdom of Belgium to pay the costs.

— make an appropriate order as to costs.

Pleas in law and main arguments

Pleas and main arguments

Article 2(1) of the directive in question provides that Member
States are to bring into force the laws, regulations and
administrative provisions necessary to comply with this Direc-
tive no later than 1 October 1999 and are forthwith to inform
the Commission thereof.

The Parliament claims that the Court of First Instance distorted
the clear sense of the evidence and overstepped the limits of
judicial review.

Distortion of the clear sense of the evidence:

The necessary measures have not yet been adopted by Belgium.

(1) OJ 1998 L 277, p. 17.

The Court of First Instance wrongly found, in paragraph 40 of
the judgment, that, for 1997, the ‘decisive’ criterion should be,
according to the decision of the appointing authority, the level
of responsibility deployed, personal investment made and the
consistency of effort vis-à-vis his responsibilities. The decision
in question does not, however, make mention of any factors
other than those appearing in the staff reports and refers to a
comparison between the various duties only to justify its
decision to depart from the Promotions Committee’s pro-
posals.

C 245/16

EN

Official Journal of the European Communities

1.9.2001

The Court of First Instance was wrong to find, at paragraph 47
of the judgment, that
the assessment of the Promotions
Committee was based on the view that the applicant experi-
enced difficulties in adjusting to his duties as Head, of the
Madrid Information Office. According to the minutes of the
Committee’s meeting, that assessment, however, is no more
than an assessment by the Chair of the Committee who does
not even have a vote on the Committee.

Finally, the Court of First Instance was wrong to find, at
paragraph 48 of the judgment, that the Promotions Committee
based itself solely on the marks awarded in the staff reports. It
follows,
in fact, from the minutes of the meeting of the
Committee, that it had decided to take into account the level
of responsibility of the duties carried out by the applicant and
to uprate the applicant’s marks accordingly.

Limits of judicial review:

The Court of First Instance has replaced the assessment of the
Promotions Committee with its own subjective assessment of
the applicant’s merits.

The Court of First Instance wrongly found, at paragraph 52 of
the judgment, that the applicant carried out the duties of Head
of the Information Office with success and failed, in so doing,
to make an objective comparison between the applicant and
his colleagues.

The Court of First
Instance wrongly takes the view, at
paragraph 53 of the judgment, that the appointing authority
failed to take proper account of the duties actually carried out
by the applicant with success. That subjective assessment does
not however support the conclusion that the Promotions
Committee committed a manifest error of assessment.

Action brought on 13 July 2001 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-278/01)

(2001/C 245/29)

An action against Kingdom of Spain was brought before the
Court of Justice of the European Communities on 13 July
2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, acting as Agent, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt, contrary to its obligations
under Article 4 of Council Directive 76/160/EEC (1) of
8 December 1975 concerning the quality of bathing
water, measures to ensure that the quality of inshore
bathing water in Spain conforms to the limit values set
by Article 3 of that directive, the Kingdom of Spain has
failed to comply with the judgment of the Court of Justice
of the European Communities of 12 February 1998 in
Case C-92/96 (2), and thus failed to fulfil its obligations
under Article 228 of the EC Treaty;

— order the Kingdom of Spain to pay to the Commission of
the European Communities, into the ‘European Com-
munity own resources’ account, a penalty payment of
EUR 45 600 in respect of every day it delays in taking the
measures necessary to comply with the judgment in Case
C-92/96, from the date on which judgment is delivered
in the present case until such time as the judgment in
Case C-92/96 is complied with;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In Case C-92/96 Commission v Spain, the Court of Justice
held that by failing to take all necessary measures to ensure
that the quality of inshore bathing waters in Spain conforms
to the limit values set in accordance with Article 3 of Council
Directive 76/160/EEC of 8 December 1975 concerning the
quality of bathing water, the Kingdom of Spain had failed to
fulfil its obligations under Article 4 thereof.

Article 228(1) of the EC Treaty requires the Kingdom of Spain
to take the measures necessary to comply with the judgment.

There is no doubt whatsoever that the Kingdom of Spain
should long ago have adopted the measures necessary to
ensure that the quality of bathing water conformed to the limit
values set in Article 3 of the directive; more than two years
elapsed between the judgment and the reasoned opinion
the Spanish Government having adopted any
without
measures.

Pursuant to Article 228(2) EC, the Commission asks the Court
to order the Kingdom of Spain to pay a penalty payment of
EUR 45 600 in respect of every day it delays in taking the
measures necessary to comply with the judgment in Case
C-92/96, as from the date of delivery of the judgment in the
present case.

(1) OJ 1976 L 31, p. 1.
(2) Case C-92/96 Commission v Spain [1998] ECR I-505.