Case T-238/02: Action brought on 9 August 2002 by José Barbosa Gonçalves against Commission of the European Communities
Date: 2002-09-28
Institutions: Court of First Instance
Subjects: action for annulment (EU), administrative transparency, competition (EU), damages, equal treatment, staff assessment

28.9.2002

EN

Official Journal of the European Communities

C 233/35

Pleas in law and main arguments

Pleas in law and main arguments

The applicant in the present case is contesting the decision to
transfer him from the Commission’s delegation in Luanda to
the Directorate-General for Development in Brussels. That
decision is allegedly connected with illness caused by personal
conflicts in which he was involved within the said delegation
in Luanda.

In support of his claims, the applicant pleads:

— failure to provide a statement of reasons, inasmuch as the
mere reference to the interests of the service cannot be
regarded as satisfactory in that respect;

— infringement of the principle of proper administration,
alternatively failure to discharge the duty to have regard
for the welfare and interests of officials;

— non-compliance with the principle that the interested
party should be heard in advance of the adoption of a
decision, inasmuch as the contested decision was taken
without any prior notice to the person concerned;

— the decision at issue is indicative in several respects of a
misuse of powers, since it is apparent from the overall
circumstances of the case that the objective actually
pursued was not of a merely organisational nature but
was to distance the applicant from Angola and from the
functions which he was responsible for performing there.

By application of 15 April 2002 the applicant, a manufacturer
of special glass, requested, pursuant to Article 6(1) of Regu-
lation (EC) No 1049/2001 of the European Parliament and of
the Council (1), access to documents relating to various State
those procedures concerned the
aid procedures. Two of
applicant itself as a presumed recipient of State aid; the others
concerned one of its competitors on the special glass markets,
the firm Schott Glass. The applicant’s action is directed at the
Commission’s decision of 28 May 2002 in so far as it refuses
to grant access to the documents in the aid procedures
concerning the applicant itself and in procedures concerning
Schott Glass and are already completed.

The applicant submits that the Commission’s refusal manifestly
infringes Article 2(1) and (4) of Regulation (EC) No 1049/
2001. The applicant had a right to access which was not
restricted by Article 4 of the regulation. In particular, the
Commission had not proved the existence of any specific
impairment of the protected interests set out in Article 4(2) of
the regulation.

the applicant submits that the Commission
Furthermore,
wrongly relied on the exception relating to the protection of
the purpose of inspections, investigations and audits. Referring
to Article 4(7) of the regulation, the applicant submits that it
has at the very least the right to access to documents in
examination procedures which have already been completed.
Moreover, it ought to have been possible for the Commission
to grant the applicant access to a document in which business
secrets had been obscured and thus to grant partial access in
accordance with Article 4(6) of the regulation.

Action brought on 8 August 2002 by Technische Glaswer-
ke Ilmenau GmbH against the Commission of the Euro-
pean Communities

Finally,
the Commission infringed its obligation to state
reasons in accordance with Article 253 EC, since it had merely
given a general statement of reasons.

(Case T-237/02)

(2002/C 233/61)

(Language of the case: German)

(1) Regulation (EC) No 1049/2001 of the European Parliament and
of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents (OJ
2001 L 145 p. 43).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 August 2002 by Technische
Glaswerke Ilmenau GmbH, whose registered office is at
Ilmenau (Germany), represented by G. Schohe and Ch. Arhold,
lawyers, acting as agents, with an address for service in
Luxembourg.

The applicant claims that the Court should

— annul

the Commission’s decision of 28 May 2002
concerning the applicant’s application for access to
documents — D(2002) 330168 — except for the part in
which access is refused to documents directly connected
with the pending aid procedure concerning Schott;

— order the defendant to pay the costs.

Action brought on 9 August 2002 by José Barbosa
Gonçalves against Commission of the European Com-
munities

(Case T-238/02)

(2002/C 233/62)

(Language of the case: Portuguese)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 9 August 2002 by José Barbosa

C 233/36

EN

Official Journal of the European Communities

28.9.2002

Gonçalves, residing in Viana do Castelo, represented by João
Dias Gonçalves, lawyer.

The applicant claims that the Court should:

The applicant claims that the Court should:

— order the Commission of the European Communities to
compensate him at a rate to be set by the Court but at no
less than EUR 1 016 200;

— order the Commission to pay all the costs;

— annul the contested decision;

— in the alternative, declare, under Article 241 of the
Treaty, unlawful and inapplicable Article 22 of Regulation
No 4253/88 in conjunction with Articles 3 and 4 of
Regulation No 1866/90;

— order the Commission to pay the costs.

— order the Commission to publish the order against it in
the European daily and weekly newspapers with the
greatest circulation.

Pleas in law and main arguments

Pleas in law and main arguments

In support of his claims, the applicant alleges errors in the
tests in General Competition COM/A/6/01, irregularities in
the marking of the tests, infringement of the rules of the
competition, of the general principles of transparency, neu-
trality and impartiality, and failure to treat the candidates
equally.

In the applicant’s view, his legitimate professional expectations
were thus prejudiced, so that annulment of the competition
would not suffice to make good the damage suffered. He
therefore asks for the material and non-material damage
suffered by him as a result of its conduct to be compensated,
in particular loss of earnings, including the benefits which the
applicant should have obtained in all likelihood or probability.

Action brought on 14 August 2002 by Ricostruzione
Industriale (IRI) SpA against Commission of the European
Communities

(Case T-249/02)

(2002/C 233/63)

(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
European Communities on 14 August 2002 by Ricostruzione
Industriale (IRI) SpA, represented by Gian Michele Roberti,
Alessandra Franchi and Roberto De Lisa, lawyers.

The present action has been brought against Commission
Decision of 31 March 2000, 004484, fixing the final amount
in respect of the files ‘Public Bodies’ — P.O. 901010 I1,
906022 I1, 906030 I6 and 936030 I6, concerning contri-
butions by the European Social Fund. That decision reduced
the ESF assistance initially granted to Italy by Decisions of
12 December 1990, C(90) 3017 and of 17 December 1990,
C(90) 2682 and C(90) 2746, adopted pursuant to Article 14(3)
of Council Regulation (EEC) No 4253/88 of 19 December
1988, laying down provisions for implementing Regulation
(EEC) No 2052/88 as regards coordination of the activities of
the different Structural Funds between themselves and with
the operations of the European Investment Bank and the other
in
existing financial
respect of the financing of operational programmes concerning
Objectives 3 and 4, actions of the Economic Public Bodies to
be undertaken in the southern-central and southern regions,
and relating to structural action by the Bodies themselves in
the regions covered by Objective 1.

instruments (OJ 1988 L 374, p. 1),

In support of its claims, the applicant alleges:

— infringement of the rights of the defence, since at no time
during the administrative procedure was it given an
opportunity to make its views known either to the
national authorities or to the Commission itself.

— misapplication of the relevant legislation, in particular of
the provisions on ECU/national currency exchange rates
to be applied for the purpose of determining the avail-
ability of
individual operational pro-
grammes within the framework of the ESF, the initial
request having been submitted in the national currency,
which led to a reduction by comparison with the
maximum payable amount under the original decision
granting the funds.

financing for

— the existence of manifest errors of assessment

in
implementing a number of deductions on final settlement
of the operational programme which is covered by the
contested decision. In particular, it contains a number of
computational errors committed by the national auth-
ority, when it drew up the request for the balance, which
did not carry out the checks which it was required to do
under the relevant Community legislation regarding ESF
assistance.