Case T-32/02: Action brought on 14 February 2002 by José Cuenda Guĳarro against the Council of the European Union
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: Council of the European Union, European official, access to information, action for annulment (EU), medical data, personal data, professional secret

4.5.2002

EN

Official Journal of the European Communities

C 109/55

The applicant claims that the Court of First Instance should:

The applicant claims that the Court should:

— Annul the defendant’s decision of 11 June 2001 to reset
at zero the applicant’s tally of promotion points after his
promotion in 2000;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant objects to the decision of the European Parlia-
ment to reset at zero the applicant’s stock of promotion points
following his promotion in 2000, thereby preventing the
applicant from carrying over to his new grade the promotion
points that he acquired over and above the relevant threshold
for promotion.

The resetting at zero is the result of a transitional scheme prior
to the implementation of a new promotion system in the
European Parliament. Under that transitional scheme the tally
of promotion points is automatically reset at zero following
a promotion, whereas the definitive scheme provides that
promotion points acquired over and above the relevant
threshold are carried over to the new grade.

According to the applicant, the contested decision infringes
Article 45 of the Staff Regulations as well as the principle
prohibiting discrimination.

— annul the decisions taken by the Commission in relation
to commencing proceedings before the United States
District Court for the Eastern District of New York, with
Docket Number CV-02-0164, on 9 January 2002, in the
name of the European Community against the applicants;

— order that the Commission pay the costs of the present
proceedings, including those of the applicants and any
intervening parties.

Pleas in law and main arguments

The applicants are the defendants in legal proceedings brought
by the European Commission before a United States Court, in
which it is seeking damages in respect of allegedly unpaid
to other
customs duties and VAT, and relief
economic and non-economic injuries arising therefrom. The
payment of these customs duties and VAT has allegedly been
avoided by the smuggling of cigarettes into the European
Union. This is the third time that the European Commission
has commenced such proceedings (1). In the current proceed-
ings, the Commission is also acting as agent for Member States
in the recovery of these taxes allegedly owed to them.

in respect

The grounds and arguments are similar to those arising in Case
T-260/01 (2).

(1) The decision to commence the first proceedings is being contested
in Case T-379/00 (OJ C 79 of 10..3.2001) and the decision to
commence the second proceedings in Cases T-260/01 and
T-272/01 (OJ C 3 of 5.1.2002, p. 39 and p. 45).

(2) OJ C 3 of 5.1.2002, p. 39.

Action brought on 15 February 2002 by Japan Tobacco,
Inc. and JT International S.A. against the Commission of
the European Communities

Action brought on 14 February 2002 by José Cuenda
Guijarro against the Council of the European Union

(Case T-31/02)

(2002/C 109/106)

(Language of the case: English)

(Case T-32/02)

(2002/C 109/107)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 February 2002 by Japan
represented by
Tobacco,
Mr Onno W. Brouwer and Mr Paul Lomas of Freshfields
Bruckhaus Deringer, London (United Kingdom).

Inc. and JT International S.A.,

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 14 February 2002 by José Cuenda Guijarro,
residing in Brussels, represented by Jean-Noël Louis, lawyer,
with an address for service in Luxembourg.

C 109/56

EN

Official Journal of the European Communities

4.5.2002

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the Council’s decision refusing to allow the appli-

cant access to his medical file;

— order the Council to pay the costs.

Pleas in law and main arguments

the documents contained in
According to the applicant,
file are directly connected with his
an official’s medical
administrative and legal situation and must
therefore be
included in his personal file, whilst observing the guarantees
provided for in Article 26 of the Staff Regulations, in particular
the right of access to those documents. The applicant disputes
the assertion that the possibility of consulting his medical file
through the intermediary of his doctor constitutes adequate
access to the documents or a necessary measure in accordance
with the principle of medical confidentiality. He maintains that
he must be given the chance to consult
in person any
document in his medical file.

Action brought on 21 February 2002 by Britannia Alloys
and Chemicals Limited against the Commission of the
European Communities

(Case T-33/02)

(2002/C 109/108)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by Britannia
Alloys and Chemicals Limited, represented by Ms Samantha
Mobley and Ms Helen Bardell of Baker & McKenzie, London
(United Kingdom).

The applicant claims that the Court should:

— annul Article 3 of the Commission Decision of 12 Decem-
ber 2001 relating to a proceeding under Article 81 of the
EC Treaty and Article 53 of the EEA Agreement (Case
COMP/E-1/37.027 — Zinc Phosphate)
insofar as it
pertains to the applicant;

— in the alternative, modify Article 3 of the Decision insofar
as it pertains to the applicant, so as to annul or
substantially reduce the fine imposed on the applicant
therein; and

— order the Commission to pay all

the costs of

the

proceedings.

The applicant contests the above-mentioned Decision in which
the Commission found that the applicant and five other
undertakings had infringed the provisions of Article 81(1) of
the Treaty and Article 53(1) of
the EEA Agreement by
participating in continuing agreement and/or concerted prac-
tices in the zinc phosphate sector. A fine of EUR 3.37 million
was imposed on the applicant following a reduction of 10 %
of the fine pursuant to Section D(2) of the Leniency Notice.

that

submits

The applicant
the Commission infringed
Article 15(2) of Regulation No. 17/62 by referring in the
Decision to the applicant’s turnover for the business year
ending 30 June 1996 when applying the limit fixed at 10 % of
turnover, instead of referring to its business year preceding the
adoption of the Decision, and by thus determining that a fine
of EUR 3.75 million did not exceed the upper limit of the fine
that could be imposed. By referring to a business year
other than the business year preceding the Decision for the
mentioned calculation, the Commission departed from its
previous practice and thus infringed the general principle of
equal treatment.

The applicant alleges that by referring to the last entire year of
‘normal economic activity’ instead of the business year preced-
ing the Decision, the Decision discriminated between undertak-
ings in essentially the same situation and thus breached the
general principle of equal treatment. It also breached the
general principle of proportionality by imposing a fine on the
applicant which does not reflect
the applicant’s financial
standing at the time of the Decision.

Furthermore,
insofar as the
the applicant submits that,
Decision relates to the applicant, the Commission infringed
the general principle of legal certainty by referring to a business
year other than the financial year preceding the Decision for
the purposes of calculating the limit fixed at 10 % of turnover.
Such a way of proceeding makes it impossible for undertakings
to predict the way in which penalties might be imposed on
them with sufficient certainty. In accordance with the above-
mentioned principle, Article 15(2) of Regulation No. 17/62
must be interpreted strictly so that the 10 % limit is always
applied to the business year immediately prior to the adoption
of the Decision.