Case C-260/02 P: Appeal brought on 15 July 2002 by Michael Becker against the judgment delivered on 12 June 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-9/01 between Michael Becker and the Court of Auditors of the European Communities
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Court of Auditors, European official, action for annulment (EU), early retirement, regulations for civil servants, unpaid leave

C 202/16

EN

Official Journal of the European Communities

24.8.2002

Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by decision of that
court dated 5 July 2002, in the case of Fast Forward
Resources plc against Commissioners of Customs and
Excise

(3) Of 22 December 1995 on protection against dumped imports
from countries not members of the European Community (OJ
L 56, 6.3.1996, p. 1).

(Case C-254/02)

(2002/C 202/23)

Reference has been made to the Court of Justice of the
European Communities by a decision of the VAT and Duties
Tribunals, London Tribunal Centre, dated 5 July 2002, which
was received at the Court Registry on 11 July 2002, for a
preliminary ruling in the case of Fast Forward Resources plc
and Commissioners of Customs and Excise on the following
questions:

(i)

(ii)

(iii)

(iv)

In Commission Regulation (EC) 152/1999 (1) what is the
proper meaning and legal effect of the term ‘registration
shall expire’ used in Article 3?

If Article 3 of Commission Regulation (EC) 152/1999
means that the whole process of registration envisaged
by the Regulation fails:
(a) does this render Council
Regulation (EC) 175/2000 (2) ineffective in relation to the
imports of leather handbags into the European Union
before midnight on 23 October 1999; and (b) in relation
to what products, if any, is Article 1.4 of Commission
Regulation (EC) 175/2000 effective in imposing duty?

Is Article 1 of Council Regulation (EC) 175/2000 consist-
ent with Article 11.4 and 14.5 of Council Regulation
(EC) 384/96 (3) and, if not, what is the effect of this
inconsistency on the collection of anti-dumping duties
registered under Commission Regulation (EC) 152/1999?

Is Article 1 of Council Regulation (EC) 175/2000 consist-
ent with Council Regulation (EC) 384/96 in so far as the
adoption of the measure occurred after the 12 month
period indicated in Article 11.5 of Council Regulation
(EC) 384/96?

(1) Of 22 January 1999 initiating a ‘new exporter’ review of Council
Regulation (EC) No 1567/97 imposing a definitive anti-dumping
duty on imports of leather handbags originating in the People’s
Republic of China, repealing the duty with regard to imports from
five exporting producers and making these imports subject to
registration (OJ L 18, 23.1.1999, p. 10).

(2) Of 24 January 2000 reimposing a definitive anti-dumping duty
on imports of leather handbags originating in the People’s Repubic
of China and sold for export to the Community by certain
exporting producers and amending Regulation (EC) No 1567/97
(OJ L 22, 27.1.2000, p. 25).

Appeal brought on 15 July 2002 by Michael Becker
against the judgment delivered on 12 June 2002 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-9/01 between Michael
Becker and the Court of Auditors of the European
Communities

(Case C-260/02 P)

(2002/C 202/24)

An appeal against the judgment delivered on 12 June 2002 by
the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-9/01 between Michael
Becker and the Court of Auditors of the European Communi-
ties (1), brought on 15 July 2002 by Michael Becker, represent-
ed by Prof. Dr Ernst Fricke, Rechtsanwalt, of Kanzlei
Prof. Dr. Fricke & Coll, Landshut (and Nuremberg, New
Brandenburg and Luxembourg), and Roy Nathan, Rechtsan-
walt, Luxembourg.

The appellant claims that the Court should: set aside in full the
judgment of the Court of First Instance of 12 June 2002 and
grant in full the forms of order sought at first instance.

Pleas in law and main arguments

The judgment of the Court of First Instance of 12 June 2002
infringes fundamental Community law.

— B r e a c h o f t h e d u t y t o h a v e r e g a r d f o r t h e

w e l f a r e o f o f f i c i a l s

It is for the Invalidity Committee to examine, on the basis of
the expert medical reports, whether the conditions set out in
Article 78 of the Staff Regulations have been met. It is of no
relevance that the appellant was on leave on personal grounds.
The grounds on which the respondent rejected his complaint
contravene the duty to have regard for the welfare of officials
and are neither covered by the express terms, nor reflect the
spirit and the purpose, of the Staff Regulations.

— F a i l u r e t o a p p r a i s e d e c i s i v e i n f o r m a t i o n

The European Commission replied to a request from the Court
for information and, in its reply, fully supported the appellant’s
legal position. In the grounds for its judgment, the Court of
First Instance did not refer to the Commission’s opinion,
thereby failing to make a proper legal appraisal of that opinion.

24.8.2002

EN

Official Journal of the European Communities

C 202/17

— F a i l u r e t o c o m p l y w i t h s t a t u t o r y p r o -

v i s i o n s

The Court of First Instance incorrectly held that, pursuant to
Article 40(4)(d) of the Staff Regulations, on expiry of his leave
on personal grounds, the appellant must be ‘reinstated in the
first post corresponding to his grade which falls vacant in his
category or service provided that he satisfies the requirements
for that post’. An official who is seriously ill clearly does not
satisfy the requirements for reinstatement.

(1) Not yet published in the European Court Reports.

b. Order the French Republic to pay into the account ‘own
resources of the EC’ of the Commission of the European
Communities a penalty payment of EUR 242 650 in
respect of each day’s delay in implementing the measures
necessary to comply with the judgment in Case C-239/
98 Commission v France;

c. Order the French Republic to pay the costs.

Pleas in law and main arguments

Although Article 228 EC does not specify the period available
to the Member State to comply with its obligations, it is none
the less the case that implementation of the judgment must be
initiated immediately and be completed as quickly as possible.
In the present case, all the provisions and measures necessary
for the French Republic to bring its legislation into conformity
with the judgment of the Court should long since have been
adopted and have entered into force; at the time of the
Commission’s reasoned opinion, almost a year had already
passed since the Court’s judgment. The texts communicated
by the French authorities subsequent to the reply to the
reasoned opinion still represent merely a very fragmented and
unsatisfactory implementation of the judgment of 16 Decem-
ber 1999.

that a penalty payment of
The Commission considers
EUR 242 650 per day is appropriate, given the seriousness
and duration of the infringement, as well as the need to apply
an effective penalty. It calculated the amount of the penalty to
be proposed to the Court by using the method of calculation
defined in its information notice of 8 January 1997 (4). It
attributed to the seriousness of the infringement the coefficient
10/20 and to the duration of the infringement a coefficient of
2.3. In order to ensure the effectiveness of the penalty, it
applied the factor 21.1 to the result obtained by multiplying
the uniform flat-rate amount of EUR 500 by the coefficient of
seriousness and of duration.

(1) OJ L 228 of 11.8.1992, p. 1.
(2) OJ L 360 of 9.12.1992, p. 1.
(3) [1999] ECR I-8935.
(4) OJ C 63 of 28.2.1997, p. 2.

Action brought on 15 July 2002 by the Commission of
the European Communities against the French Republic

(Case C-261/02)

(2002/C 202/25)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 15 July
2002 by the Commission of the European Communities,
represented by C. Tufvesson and H. van Lier, acting as Agents,
with an address for service in Luxembourg.

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

a. Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply fully with
Council Directive 92/49/EEC of 18 June 1992 on the
coordination of
laws, regulations and administrative
provisions relating to direct insurance other than life
assurance and amending Directives 73/239/EEC and 88/
357/EEC (third non-life insurance Directive) (1) and with
Council Directive 92/96/EEC of 10 November 1992 on
the coordination of laws, regulations and administrative
provisions relating to direct life assurance and amending
Directives 79/267/EEC and 90/619/EEC (third life assur-
ance Directive) (2) and, in particular, by not transposing
those directives with regard to mutual societies governed
by the Code de la Mutualité, the French Republic has
failed to implement all the measures necessary to comply
with the judgment of 16 December 1999 in Case C-239/
98 Commission v France (3) and has failed to fulfil
its
obligations under Article 228 EC;