Case T-164/01: Action brought on 19 July 2001 by Arnaldo Lucaccioni against Commission of the European Communities
Date: 2001-09-29
Institutions: Court of First Instance
Subjects: EC action to establish liability, European Commission, European official, asbestos, indemnification, occupational health

29.9.2001

EN

Official Journal of the European Communities

C 275/15

The applicant claims that the Court should:

European Communities on 19 July 2001 by Arnaldo Lucac-
cioni, represented by Mauro Cimino.

— annul the decision of the Commission of 7 September
2000 not to promote the applicant to Grade A4 in the
1999 promotions procedure;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant challenges the decision not to promote him to
Grade A4 in the 1999 promotions procedure.

In support of his application, the applicant claims that the
appointing authority committed a manifest error of assessment
by comparing the circumstances of the applicant against the
average staff report results for the directorate to which he was
posted. Moreover, the decision is allegedly based on the sole
factor that his Directorate General only had available three
posts for promotion to Grade A4 for 1999. Since he was listed
4th by his Directorate General,
the appointing authority
automatically and without examining his merits in comparison
with those of the other candidates eligible for promotion,
removed the applicant’s chances of being promoted in that
year.

The applicant pleads:

— infringement of Article 45 of the Staff Regulations;

— breach of the principle that officials should have reason-

able career prospects;

— manifest error of assessment;

— breach of the principle of equal treatment and non-

discrimination.

Action brought on 19 July 2001 by Arnaldo Lucaccioni
against Commission of the European Communities

(Case T-164/01)

(2001/C 275/30)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the

The applicant claims that the Court should:

— order compensation for biological and non-material
damage, caused by the defendant between 1967 and
1990, irrespective of (or under) Article 73 of the Staff
Regulations, as a result of the inexcusable fault of the
institution, which thus incurs liability, inasmuch as it:

— caused continuous and culpable bodily harm to the
applicant, in that it obliged him to work, giving
untrue reassurances, in an environment contamin-
ated by asbestos, knowing full well that asbestos is
harmful even for persons not at risk

— deliberately attempted to harm the applicant, at the
risk of killing him, which is mentioned only to
support the allegation of harm

— deliberately attempted against the applicant’s safety

at work, by seriously neglecting safety

amounting to ITL 7 000 000 000, by analogy with the
amounts ordered in respect of each of
the victims
(totalling some ITL 1 000 000 000) in the judgment in
Case 4840/96 of 5 July 1996 delivered by the Pretura
Circondariale di Torino (District Magistrate’s Court, Turin)
and the compensation ordered for each of the victims
of
namely
‘Cermis’
ITL 4 000 000 000.

disaster,

cable

the

car

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present case, the same applicant as in
Case T-165/95 Lucaccioni v Commission (1)? was awarded a
rate of total permanent invalidity of 130% and was paid the
capital at the rate of 100 % under Article 12 of the Joint Rules
and compensation at the rate of 30 %, under Article 12 of the
same rules. The applicant could no longer, apparently, avail
himself of Article 73 of the Staff Regulations, since in 1985
the defendant decided that the cumulated total under the two
articles could not exceed 100 %. The applicant now seeks
compensation for biological and non-material damage suffered
during the period from 1967 to 1990 irrespective of (or under)
Article 73 of the Staff Regulations, attributable to the conduct
of the defendant for the way in which it dealt with the
problems arising from the presence of asbestos in the Berlay-
mont building.

C 275/16

EN

Official Journal of the European Communities

29.9.2001

The applicant states in that respect that, in Case C-257/98
P Lucaccioni v Commission, the damages sought were exam-
ined by the Court of Justice only in the context of the Staff
Regulations and with regard to occupational diseases. Despite
the fact that the Medical Committee’s report had given the
diagnosis date as January 1990, the Court took the view that
payment of the compensation/interest should be dated from
April 1994, the date on which the proceedings were brought
to a close. It is therefore evident that the Court did not take
into account the non-material and biological damage suffered
by the applicant and unquestionably caused by the European
Commission from September 1967 until April 1994, or at
least until November 1980, in accordance with the legal rules
currently in force, the Charter of fundamental rights of the
European Union and the Convention on Human Rights.

(1) Case T-165/95 Lucaccioniv Commission [1998] ECR FP-IA-

203,II-67.

Action brought on 17 July 2001 by Schmitz-Gotha
Fahrzeugwerke GmbH against the Commission of the
European Communities

(Case T-167/01)

(2001/C 275/31)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 July 2001 by Schmitz-Gotha
Fahrzeugwerke GmbH, Gotha (Germany), represented by
Martin Matzat, Rechtsanwalt.

The applicant claims that the Court should:

— annul Commission Decision No C 41/99 (ex N 49/95) of
28 March 2001 in so far as it holds the applicant liable
in respect of the portion of aid due for repayment
attributable to Gothaer Fahrzeugwerk GmbH;

— in the alternative, should the Commission’s decision not
be open to a challenge in part, annul the above decision
in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By its decision of 28 March 2001, the Commission ordered
the Federal Republic of Germany to recover aid totalling
DEM 34 978 000 from Lintra Beteiligungsholding GmbH
and/or
including Gothaer Fahrzeugwerke
GmbH.

its subsidiaries,

Gotha Fahrzeugwerke GmbH’s main activity was in the vehicle
construction business. The company’s assets in that area were
transferred to the applicant. According to the applicant, the
Commission may be acting on the assumption that
the
applicant is the (partial)
legal successor to Gothaer Fahr-
zeugwerke GmbH, thereby establishing liability for repayment
on the part of the applicant even though only assets were
acquired.

According to the applicant, Gothaer Fahrzeugwerk GmbH,
which is currently in liquidation, repaid its share of the total
amount of aid to be repaid. If, however, that company were to
be declared insolvent, that repayment might be called back
into question and the corresponding amount partially or
insolvency mass. For that
wholly included in the general
reason, the applicant has a legal
interest in Commission’s
decision being annulled.

The applicant argues that there has been an infringement of
essential procedural requirements on account of inadequate
reasoning for the decision, inasmuch as the Commission holds
that the decision enables a requirement for repayment to be
established against the applicant. The applicant submits that,
if the Commission orders in a decision that aid should be
reclaimed from certain undertakings named in that decision,
that decision is limited solely to those particular undertakings.
If, however, the Commission takes the view that other, third-
party, undertakings, which are legally independent and have
merely had assets transferred to them, may also be held liable
for repayment of the aid, such a view requires that those
undertakings be specifically named in the decision itself and
that a detailed justification be provided as to why the factual
requirements for such liability are present.

The applicant further argues that, by assuming or declaring
the applicant to be liable, the Commission has infringed the
Treaty. It maintains, inter alia, that to hold the acquirers of
assets unrestrictedly liable is not compatible with Community
principles. In particular, such comprehensive liability infringes
the principle of proportionality. Moreover, the claims for
repayment bore no relation to the assets taken over.