Case T-173/02: Action brought on 2 June 2002 by Pierre Tomarchio against Commission of the European Communities
Date: 2002-09-14
Institutions: Court of First Instance
Subjects: action for annulment (EU), promotion, regulations for civil servants, staff assessment

14.9.2002

EN

Official Journal of the European Communities

C 219/19

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 11 July 2002

in Case T-163/01: Juan Pedro Perez Escanilla v Com-
mission of the European Communities (1)

(Officials — Promotion — Consideration of comparative
merits — Action for annulment)

(2002/C 219/47)

(Language of the case: French)

In Case T-163/01: Juan Pedro Perez Escanilla, an official of
the Commission of the European Communities, residing in
Brussels, represented by J.-N. Louis and V. Peere, lawyers, with
an address for service in Luxembourg, against Commission of
the European Communities (Agent: C. Berardis-Kayser) —
application for annulment of the decision of the Commission
not to promote the applicant to Grade A 4 in the 1999
promotions procedure — the Court of First Instance (Fifth
Chamber), composed of J.D. Cooke, President, R. García-
Valdecasas and P. Lindh, Judges; J. Palacio González, Adminis-
trator, for the Registrar, gave a judgment on 11 July 2002, in
which it:

1. Annuls the decision of the Commission not to promote the
applicant to Grade A 4 in the 1999 promotions procedure.

2. Orders the Commission to pay the costs.

sels, represented by N. Korogiannakis, lawyer, against Com-
mission of the European Communities (Agents: X. Yataganas
and C. Berardis-Kayser) — application for the annulment of
the decision of
the Commission of 15 December 2000
appointing the applicant and classifying him in Grade A 5,
step 1, with effect from 16 December 2000 — the Court of
First Instance (Single Judge: M. Vilaras); J. Palacio González,
Administrator, for the Registrar, gave a judgment on 11 July
2002, in which it:

1.

annuls the decision of the Commission of 15 December 2000
classifying the applicant in Grade A 5, step 1, with effect from
16 December 2000.

2.

orders the Commission to pay the costs.

(1) OJ C 3 of 5.1.2002.

Action brought on 2 June 2002 by Pierre Tomarchio
against Commission of the European Communities

(Case T-173/02)

(2002/C 219/49)

( 1) OJ C 275 of 29.9.2001.

(Language of the case: French)

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 11 July 2002

in Case T-263/01: Petros Mavromichalis v Commission of
the European Communities (1)

(Officials — Prior complaint through official channels —
Implied rejection — Classification in grade and step —
Statement of reasons)

(2002/C 219/48)

(Language of the case: Greek)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 June 2002 by Pierre Tomarchio,
residing in Nancy (France), represented by Nicolas Lhoëst,
lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision of the Commission of 27 July 2001
refusing to appoint the applicant to a higher grade in the
category in accordance with Article 31(2) of the Staff
Regulations;

— annul all other connected and/or subsequent decisions;

— in so far as necessary, annul the express decision which
the Commission adopted on 12 February 2002 rejecting
the complaint lodged by the applicant under Article 90(2)
of the Staff Regulations;

In Case T-263/01: Petros Mavromichalis, an official of the
Commission of the European Communities, residing in Brus-

— order the defendant to pay the costs.

C 219/20

EN

Official Journal of the European Communities

14.9.2002

Pleas in law and main arguments

The applicant objects to the Commission’s decision to refuse
to appoint him to the higher grade in the category in
accordance with Article 31(2) of the Staff Regulations.

In support of his arguments, the applicant claims that the
Commission relied on erroneous information and on contra-
dictory arguments. By refusing to reclassify the applicant
despite the large number of diplomas he holds and the
experience he possesses, the Commission has committed a
manifest error of assessment. Furthermore, the Commission
did not give valid reasons for its decision, thus infringing
Article 25(2) of the Staff Regulations.

Action brought on 17 June 2002 by Rüdiger Wienberg
(Rechtsanwalt), acting as liquidator in the liquidation of
Erba Lautex GmbH Weberei und Veredlung against the
Commission of the European Communities

(Case T-187/02)

(2002/C 219/50)

(Language of the Case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 17 June
2002 by Rüdiger Wienberg (Rechtsanwalt), acting as liquidator
in the liquidation of Erba Lautex GmbH Weberei und Vered-
lung, Dresden, (Germany), represented by Professor U. Ehricke,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— Annul the Commission Decision (C(2002)944 fin) of
12 March 2002 concerning State aid by the Federal
Republic in favour of Neue Erba Lautex Gmbh and Erba
Lautex GmbH in liquidation;

— Order the defendant to pay the costs.

group said to comprise Erba Lautex GmbH in liquidation
and Neue Erba Lautex GmbH aid amounting in total to
EUR 7,834 million.

The applicant submits that the Commission’s finding that
repayment of the capital increase constituted aid was incorrect
and thus contravened Article 87(1) EC. The obligation on the
State-owned vendor under the contractual clause did not
amount to aid. Moreover, the Commission did not substantiate
its supposition as to a 100 % level of aid intensity in connection
with a capital increase in favour of Erba Lautex GmbH and
thus contravened Article 253 EC.

The applicant further submits that there is no legal basis for
the obligation on Erba Lautex GmbH in respect of repayment
of rescue and restructuring aid in favour of Neue Erba Lautex
GmbH. The Commission decision is based on the erroneous
finding that Neue Erba Lautex GmbH was not a successor
undertaking under the terms of the exception provided for in
footnote 10 of the Guidelines (1).

The applicant maintains that the Commission’s finding that
Erba Lautex GmbH and Neue Erba Lautex GmbH were to be
deemed to constitute a group was erroneous since Neue Erba
Lautex GmbH is controlled not by Erba Lautex GmbH but by
the liquidator. The findings that no aid has hitherto been
claimed back from Erba Lautex GmbH and that the Com-
mission decision of 20 July 1999 has thus not been implement-
In consequence of the erroneous
ed are also erroneous.
assumptions made by the Commission the contested decision
was already unlawful and liable to be set aside for breach of
Article 87(3)(c) EC in conjunction with the Guidelines.

The applicant submits, in the alternative, that the Commission
was incorrect in its finding that the applicant and Erba Lautex
GmbH constituted a unit or group of undertakings and that
therefore the ability to approve rescue and restructuring aid
could only be assessed in favour of the group, that the
Deggendorf doctrine was to be applied and the aid was to
be claimed back from both members of the group. The
Commission’s decision is said to be based on the erroneous
finding that the applicant’s case did not constitute a residual
arrangement under the terms of the exception provided for in
footnote 10 of the Guidelines. By not applying that exceptional
provision the Commission infringed the principle of equal
treatment and provided no objective reason for the unequal
treatment.

Pleas in law and main arguments

(1) Community Guidelines on State aid for rescuing and restructuring

firms in difficulty (OJ 1999 C 288, p. 2).

In the contested decision the Commission imposed on the
Federal Republic of Germany the obligation to reclaim from a