Case C-116/03 P: Appeal brought on 14 March 2003 by Augusto Fichtner, a former official of the Commission of the European Communities, against the judgment of 16 January 2003 of the Fourth Chamber of the Court of First Instance in Case T-75/00 Augusto Fichtner v Commission
Date: 2003-05-24
Institutions: Court of Justice
Subjects: European Commission, European official, General Court (EU), action for annulment (EU), indemnification, infringement of EU law, interest

24.5.2003

EN

Official Journal of the European Union

C 124/7

Appeal brought on 14 March 2003 by Augusto Fichtner,
a former official of the Commission of the European
Communities, against the judgment of 16 January 2003 of
the Fourth Chamber of the Court of First Instance in Case
T-75/00 Augusto Fichtner v Commission

(Case C-116/03 P)

(2003/C 124/11)

An appeal against the judgment of 16 January 2003 of the
Fourth Chamber of the Court of First Instance in Case T-75/
00 Augusto Fichtner v Commission was brought before the
Court of Justice of the European Communities on 14 March
2003 by Augusto Fichtner, represented by Michele Tamburini
and Franco Colussi, lawyers.

The appellant claims that the Court should:

— set aside the contested judgment;

— uphold the claims submitted at first instance and, accord-

ingly;

— annul

the contested decision of

the appointing

authority of 30 September 1999, which is at issue;

— order the Commission to pay him the outstanding
remuneration and allowances as revalued and with
interest to run from the date on which the decision
took effect until actual payment is made;

— order the Commission to make good the material
and non-material damage suffered by the appellant,
such compensation being assessed at EUR 50 000 or
any other amount which the Court might deem
appropriate and equitable or as may be subsequently
decided;

— order the Commission to pay the costs.

Pleas in law and main arguments

The judgment of the Court of First Instance is contrary to
Community law, in particular to:

1) Article 86(1) of the Staff Regulations, inasmuch as:

a)

the appellant did not fail to fulfil his obligations
under the third paragraph of Article 12 of the Staff
Regulations, having proved that he did request
permission to pursue an outside activity;

b)

even if it should be deemed that the appellant did,
however, fail to fulfil said obligation, such breach
could not be held to have been committed ‘intention-
ally or through negligence’;

2.

the principle of proportionality (by the administration)
by:

a) misuse of its powers: the Commission, by adopting
the contested decision, pursued an objective other
that for which the relevant power had been con-
ferred on it (safeguarding the internal rules of the
civil service) and, in any event, in order to achieve
purposes other than those declared;

b) manifest error of assessment of the facts: the Com-

mission failed to take into account:

1)

2)

the good faith of the appellant;

that he could not have been refused the per-
mission in question since the outside activity
did not impair the official’s independence nor
was detrimental to the work of the Communi-
ties.

Reference for a preliminary ruling by the Consiglio di
Stato in sede giurisdizionale, Sezione Sesta by order of
that Court of 17 December 2002 in the case of Società
Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
re e dei Trasporti and Regione Autonoma del Friuli
Venezia Giulia

(Case C-117/03)

(2003/C 124/12)

Reference has been made to the Court of
Justice of the
European Communities by order of the Consiglio di Stato in
sede giurisdizionale, Sezione Sesta (Judicial Committee of the
Council of State, Sixth Chamber) of 17 December 2002,
received at the Court Registry on 18 March 2003, for a
preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
against Ministero delle Infrastrutture e dei Trasporti and
Regione Autonoma del Friuli Venezia Giulia on the following
question:

Is Article 4(5) of Directive No 92/43/EEC (1) of 21 May 1992
to be interpreted as meaning that the measures under Article 6
and,
in particular, under Article 6(3) of that directive are
mandatory for the Member States only after final approval at
Community level of the list of sites under Article 21 or,
in addition to determination of the ordinary
alternatively,
commencement date of conservation measures, must a distinc-
tion be drawn between declaratory listing and determinative