Case T-176/04: Action brought on 13 May 2004 by Luigi Marcuccio against Commission of the European Communities
Date: 2004-07-10
Institutions: Court of First Instance
Subjects: European Commission, European official, access to information, action for annulment (EU), medical data

10.7.2004

EN

Official Journal of the European Union

C 179/17

Pleas in law and main arguments:

The contested regulation was adopted by the Council
in an
effort to comply with the judgment of the Court of Justice of
the European Communities of 9 January 2003 in case C-76/00
P. This judgment set aside the judgment of the Court of First
Instance of 15 December 1999 in Joined Cases T-33/98 and T-
34/98 Petrotub and Republica v. Council (2) and annulled
Council Regulation (EC) No. 2320/1997 of 17 November 1997
imposing definitive anti-dumping duties on imports of certain
seamless pipes and tubes of iron or non-alloy steel in so far as
it concerned Petrotub S.A. and Republica S.A.

In support of its application the applicant submits that the
Council has exceeded its discretionary power under Article 233
EC by implementing the judgment in a way that infringes Arti-
cles 6 paragraphs 1 and 9 and 2 paragraph 11 of Regulation
(EC) No 384/96 (3). More particularly, the applicant contends
that Article 6 paragraph 9 was infringed since the contested
regulation was adopted on the basis of the initial investigation
even though more than 15 months had elapsed since its initia-
tion. Further, Article 6 paragraph 1 was infringed in that the
anti-dumping measures adopted were no longer based on infor-
mation relating to a period of at least six months immediately
to the initiation of proceedings. The applicant also
prior
the contested regulation does not contain
contends
adequate motivation as to why the first two methods of calcula-
tion of the dumping margin, provided for in Article 2 para-
graph 11 of Regulation No 384/96, were rejected in favour of
the third method. On this basis the applicant claims that the
contested regulation also infringed Article 2 paragraph 11 of
Regulation No 384/1996 as well as Article 253 EC.

that

(1) OJ L 40, 12.2.2004, p. 12.
(2) [1999] ECR-II 3837.
(3) OJ L 56 , 6.3.1996, p. 1.

Action brought on 7 May 2004 by Mr Donal Gordon
against the Commission of the European Communities

(Case T-175/04)

(2004/C 179/33)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 May 2004 by Mr Donal Gordon,
Brussels, Belguim, represented by Mr M. Byrne, Solicitor.

The applicant claims that the Court should:

— annul the appointing authority's Decision in response to

the applicant's complaint R/402/03;

— declare the Commission Decision of 26 April 2002 on
general provisions for implementing Article 43 of the Staff
regulations or the relevant current measure invalid to the
extent that reports are finalised before all appeals of the
same grade in the same unit have been processed;

— declare Administrative Notice 99-2002 of 3 December
2002 or the relevant current measure invalid to the extent
that it sets a target average mark;

— award the applicant damages in compensation for the mate-
rial damage to his career prospects, to his morale and to his
health;

— order the Commission to pay all the costs of the present

action.

Pleas in law and main arguments:

In support of his conclusions, the applicant submits in the first
place a breach of an essential procedural requirement and the
rights of defence in that the countersigning officer failed to
have a dialogue with the official within 5 working days as
required by Article 7(5) of Commission Decision of 26 April
2002 on general provisions for implementing Article 43 of the
Staff Regulations.

The applicant also invokes a manifest error of assessment by
the countersigning officer in signing the applicant's career
development report, having regard to the anomalous and
contradictory data available to him. The applicant furthermore
invokes a misuse of powers because of his failing to take any
steps to correct such manifest error of assessment.

The applicant finally invokes a breach of an essential proce-
dural requirement and the rights of defence in that the internal
appeal system set in place by Commission Decision of 26 April
2002 was rendered inherently ineffective by the fact that by
the time an appeal was launched, the other reports in the same
unit, to which the appealed report was linked by an average
mark, had been irrevocably validated, and by the limited
number of points set aside to cover appeals.

Action brought on 13 May 2004 by Luigi Marcuccio
against Commission of the European Communities

(Case T-176/04)

(2004/C 179/34)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 May 2004 by Luigi Marcuccio,
represented by Alessandro Distante, lawyer.

C 179/18

EN

Official Journal of the European Union

10.7.2004

The applicant claims that the Court should:

— annul the decision of the appointing authority rejecting his

request;

— order the Commission to pay the costs.

Pleas in law and main arguments

This action was brought by the applicant as a result of the fact
that, on 1 April 2003, he submitted a request to the Commis-
sion in the following terms: (a) if a medical report drawn up by
Dr M.P. Simonnet on the occasion of the medical check up
which the Commission required him to undergo on 20 June
2002 exists, to have a certified copy thereof sent to him or to a
doctor designated by him and, in the latter case, that he should
be informed thereof in writing; (b) if the medical report does
not exist, to be informed of that fact in writing; (c) if there is
any reason to deny the requests at (a) and (b) above, to be
informed thereof in writing.

Following the implied rejection of the request, the applicant
brought the present action.

In support of his arguments, the applicant puts forward the
following pleas in law:

Breach of the law inasmuch as the official is entitled to have
access to all data relating to him drawn up by agents of the
defendant in the course of their duties and in their possession,
and thus including the medical report.

Breach of the applicant's right to health, in particular to his
physical and mental health and of the institution's duty to have
regard for his welfare.

European Communities on 17 May 2004 by Daniel Van der
Spree, residing at Overijse (Belgium), represented by S. Orlandi,
A. Coolen, J.-N. Louis and E. Marchal, lawyers, with an address
for service in Luxembourg.

The applicant claims that the Court should:

— Annul the decision establishing finally the applicant's career
development review covering the period from 1 July 2001
to 31 December 2002;

— Order the defendant to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant pleads, first, breach of
Articles 26 and 43 of the Staff Regulations and of the special
measures applicable to the 2001-2002 transitional appraisal
exercise. The applicant also pleads breach of the duty to state
reasons, inconsistency between the comments and the marks
awarded and manifest error of assessment. The applicant relies,
further, on infringement of the rights of the defence in that the
decision was based on an internal audit report of which the
applicant was not given notice and on alleged appraisal criteria
of which, the applicant submits, he was not informed.

Breach of the obligation to provide reasons for decisions, as
provided for in Article 25 of the Staff Regulations.

Action brought on 7 June 2004 by Microsoft Corporation
against the Commission of the European Communities

Breach of the duty to have regard to the welfare of officials,
inasmuch as the defendant had not the slightest regard for the
interest of the applicant to have access to the medical report,
or at least for such a report to be transmitted to a doctor of his
choice, in particular in light of the fact that it is impossible to
discern what interest of the service the defendant sought to
protect, quod non, by its rejection of the request and of the
complaint.

(Case T-201/04)

(2004/C 179/36)

(Language of the case: English)

Action brought on 17 May 2004 by Daniel Van der Spree
against Commission of the European Communities

(Case T-182/04)

(2004/C 179/35)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 June 2004 by Microsoft Corpora-
tion, Washington (USA), represented by I. S. Forrester, QC, and
J.-F. Bellis, lawyer.

The applicant claims that the Court should:

— annul the Commission Decision of 24 March 2004, or, in
substantially reduce the fine

the alternative, annul or
imposed;

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

— order the Commission to bear the costs.