Case T-368/03: Action brought on 4 November 2003 by Rafael de Bustamante Tello against the Council of the European Union
Date: 2004-01-10
Institutions: Court of First Instance
Subjects: Council of the European Union, European official, action for annulment (EU), allowances and expenses, civil servant, regulations for civil servants

10.1.2004

EN

Official Journal of the European Union

C 7/41

Action brought on 27 October 2003 by Philippe Van-
langendonck against the Commission of the European
Communities

(Case T-361/03)

(2004/C 7/75)

(Language of the case: French)

An action was brought before the Court of First Instance of
the European Communities on 27 October 2003 against
the Commission of the European Communities by Philippe
Vanlangendonck, residing in Overijse (Belgium), represented
by Bernard Laurent, Lawyer.

The applicant claims that Court of First Instance should:

— verify the legality of the rejection of complaints Nos R/
134/03 and R/139/03 registered by ADMIN. B2 —
Appeals Unit, on 27 March 2003, adopted by the acting
Director of EPSO in his capacity of appointing authority
on 17 July 2002, notified by letter sent on 25 July 2003
and received on 28 July 2003 in relation to a refusal to
annul or amend a published list of successful candidates
in competition COM/A/10/01 which was manifestly
vitiated by errors or irregularities;

— verify the legality of the refusal by the Chairman of the
selection board in competition COM/A/10/01 and the
appointing authority to explain and disclose objective
and relevant information;

— order the defendant to pay the sum of EUR 400 000 to
the applicant by way of damages for the loss suffered
(subject to increase or decrease of that sum in the course
of the proceedings).

— breach of the principle of the rule of law and of the EC
Treaty since, contrary to the opinion of the chairman of
the selection board, the Director of EPSO stated that the
competition notice does not allow for the possibility of
an oral test on an ex aequo basis, even though it is settled
case-law that the selection board is bound by the terms
of the competition notice;

— breach of the principle of equal treatment of candidates.
The applicant asks in that connection why the selection
board, which performed its duties perfectly well
in
selecting and comparing the merits of candidates ranging
from best to 149th in order of merit, suddenly proved
incapable of comparing and making a selection among
seven candidates on an ex aequo basis.

Action brought on 4 November 2003 by Rafael de
Bustamante Tello against the Council of the European
Union

(Case T-368/03)

(2004/C 7/76)

(Language of the case: Spanish)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 4 November 2003 by Rafael de Bustamante
Tello, residing in Brussels (Belgium), represented by D. Ramón
García-Gallardo and M. Dolores Domínguez Pérez, lawyers.

Pleas in law and main arguments

The applicant claims that the Court should:

The applicant takes exception to the administration’s refusal
to annul or amend a published list of successful candidates in
competition COM/A/10/01 which was manifestly vitiated by
errors or irregularities and the refusal to provide information
as asked for by the applicant to enable him to consider whether
or not he has been the subject of discrimination on grounds
of his nationality in the course of the procedure and the
compilation of results of the oral test in the abovementioned
competition.

— annul

the Council decision of 28 July 2003 which
dismisses the claim of 14 April 2003 in that it does not
recognise the right to receive an expatriation allowance
and, accordingly, other related allowances;

— order the defendant to pay the full costs.

In support of his claims, the applicant alleges:

Pleas in law and main arguments

— a manifest error of law or of fact in that the selection
board placed 156 people on the list of successful
candidates rather than the 150 prescribed by the compe-
tition notice;

The applicant in the present case challenges the failure of the
appointing authority to recognise the right to an expatriation
allowance and other related allowances (Article 4 of Annex VII
to the Staff Regulations).

C 7/42

EN

Official Journal of the European Union

10.1.2004

In support of his claims, the applicant alleges:

— order the Commission to pay all costs and expenses in

these proceedings.

the facts,

— a combination of an error in law and a manifest error of
assessment of
inasmuch as the contested
decision does not consider the work carried out by him
for the Delegation of the Autonomous Community of
Murcia in Brussels ‘work done for [a] State’, in the sense
recognised in the Staff Regulations as an exception to the
reference period. In the alternative, he claims that the
Council wrongly concluded in the contested decision that
the applicant’s centre of interest and habitual residence
were in Brussels and not in Murcia;

— infringement of the principle of equal treatment,

in
the appointing authority discriminated between

that
essentially identical personal situations.

Action brought on 29 October 2003 by Arizona Chemical
B.V., Eastman Belguim B.V.B.A., Resinall Europe B.V.B.A.
and Cray Valley Iberica S.A. against the Commission of
the European Communities

(Case T-369/03)

(2004/C 7/77)

(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 29 October 2003 by Arizona
Chemical B.V., Almere, the Netherlands, Eastman Belguim
B.V.B.A., Kallo, Belguim, Resinall Europe B.V.B.A., Brugge,
Belguim and Cray Valley Iberica S.A., Madrid, Spain , represent-
ed by Claudio Mereu and Koen Van Maldegem, lawyers.

The applicant claims that the Court should:

— annul Commission Decision D(2003)430245

of

20 August 2003;

— declare that the rosin entry in Annex I of Council Directive
67/548/EEC of 27 June 1967 on the approximation of
laws, regulations and administrative provisions relating
to the classification, packaging and labelling of dangerous
substances, is unlawful;

— in the alternative, declare that the rosin Annex I entry is
inapplicable to the Applicants under Article 241 EC
Treaty;

— compensate Applicants for damages suffered as a result of
the adoption of the contested Decision, in the provisional
amount of EUR 1; or,
in the alternative declare the
Commission liable for imminent damage foreseeable with
sufficient certainty, even if the damage cannot be precisely
assessed;

Pleas in law and main arguments

The Contested Decision in this case rejected the applicants
request to declassify rosin as a dangerous substance listed in
Annex I of Council Directive 67/548/EEC of 27 June 1967 on
the approximation of laws, regulations and administrative
provisions relating to the classification, packaging and labelling
of dangerous substances (1).

that

In support of their application the applicants submit that the
the
Contested Decision is unlawful on the grounds that
classification of rosin was decided on the basis of test results
relating to a different substance, namely oxidised rosin. They
the classification in question is not
further submit
supported by the conclusion of
the scientific assessment
conducted under Directive 67/548 and was decided on the
wrong premise that rosin always produces oxidised rosin and
that the latter causes skin sensitisation under normal handling
and use. The applicants also contend that the Contested
Decision is unlawful because it is based on the ‘precautionary
principle’, which does not apply to hazard-based decisions,
that the Contested Decision violates the EC Treaty as it fails to
consider new, state-of-the-art scientific evidence on oxidised
rosin and that, finally, the Contested Decision also violates
fundamental principles of Community law, more especially
the principles of legal certainty, legitimate expectations and
proportionality.

(1) OJ P 196 , 16.08.1967, p. 1-98, English special edition: Series I

Chapter 1967, p. 234.

Action brought on 10 November 2003 by Yves Mahieu
against the Commission of the European Communities

(Case T-372/03)

(2004/C 7/78)

(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 10 November 2003 by Yves
Mahieu, residing in Brussels, represented by Lucas Vogel,
lawyer.