Case T-385/04: Action brought on 20 September 2004 by Gregorio Valero Jordana against Commission of the European Communities
Date: 2004-11-20
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, action for annulment (EU), personnel administration, promotion, regulations for civil servants, staff assessment

20.11.2004

EN

Official Journal of the European Union

C 284/27

The applicant claims that the Court should:

Pleas in law and main arguments:

— annul the decision of the Court of Auditors, taken in the
promotions exercise 2003 not to promote the applicant to
the grade of translator-reviser (in 2003: LA5).

Pleas in law and main arguments:

In support of his action, the applicant alleges that, during the
promotions exercise in question, the defendant conducted a
comparative examination of
files, without
taking account all of the factors liable to determine its decision,
without regard for impartiality, on an unequal basis, neglecting
the interests of the service and using information which was
not comparable, as it allegedly came from a single reviser
whose professional competence is contested by the applicant.

the candidates'

Action brought on 17 September 2004 by J against the
Commission of the European Communities

(Case T-379/04)

(2004/C 284/53)

(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 17 September 2004 by J, repre-
sented by Carlo Forte, lawyer.

The applicant claims that the Court should:

— annul the Commission's decision of 10 June 2004, rejecting
the applicant's complaints lodged against its decisions of 31
October 2003 and 10 December 2003, whereby, respec-
tively, it refused her the expatriation allowance and installa-
tion allowance and demanded repayment of sums paid to
her in that respect, not acknowledging the applicability of
the last sentence of the second indent of Article 4(1)(a) of
Annex VII, Article 5(1) of Annex VII, and Article 85 of the
Staff Regulations of the European Communities;

— annul the aforesaid decisions of 31 October 2003 and 10

December 2003;

— order such measures as may be appropriate to restore the

applicant's rights, including interest for delay;

— order the Commission to pay the costs.

The applicant, who before accepting a post as a temporary
servant of the Commission with the Directorate General for
Research was employed as a researcher at the Brussels estab-
lishment of the Consiglio Nazionale di Ricerca (CNR), chal-
lenges the Commission's refusal to grant her the expatriation
allowance and the installation allowance.

The Commission's position is based on the argument that the
CNR, which does not form part of the structure of the public
administration, is outside the scope of activity of the Italian
State, of which it represents neither the will nor the direct
interests.

In support of her claims, the applicant first argues misapplica-
tion of the last sentence of the second indent of Article 4(1)(a)
of Annex VII and Article 5(1) of Annex VII of the Staff Regula-
tions, maintaining that her status as a State official should
allow her to be granted the refused allowances. That was also
the interpretation of the Belgian Ministry of Foreign Affairs,
which issued the applicant with a ‘Carte d'identité spéciale’,
describing her as a ‘Fonctionnaire italienne en mission officielle
en Belgique’.

She adds in this respect that the CNR is a legal person under
public law to which the organisation of the State attributes an
area of competence (belonging to the central power), material
resources and an organisational structure, constituted precisely
from public bodies and rules applicable to them.

The applicant also claims to have suffered an infringement of
Article 85 of the Staff Regulations.

Action brought on 20 September 2004 by Gregorio Valero
Jordana against Commission of the European Commu-
nities

(Case T-385/04)

(2004/C 284/54)

(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 20 September 2004 by Gregorio
Valero Jordana, residing in Brussels, represented by Massimo
Merola and Isabelle van Schendel, lawyers.

C 284/28

EN

Official Journal of the European Union

20.11.2004

The applicant claims that the Court should:

— annul the decision of the Director General of the Legal
Service awarding him only one priority point under the
2003 promotion exercise, as is apparent from the Sysper 2
computerised system;

— annul the decision of the appointing authority to award
him a total of 20 points under the 2003 promotion exer-
cise, as is apparent from the Sysper 2 computerised system;
the list of merit of officials in grade A5 under the 2003
promotion exercise,
following Promotion Committees,
published in Administrative Notices No 69-2003 of 13
November 2003; the list of officials promoted to grade A4
under
the 2003 exercise, published in Administrative
Notices No 73-2003 of 27 November 2003; and the deci-
sion not to enter his name on those lists;

— order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant in the present case objects to the award of one
priority point under the 2003 evaluation exercise and also to
the appointing authority's refusal to promote him to grade A4
for the same exercise.

In support of his claims, he asserts first of all that Article 45 of
the Staff Regulations requires that merit be the determining
criterion for the award of priority points by the Directorate
General and for promotion. None the less, in the system called
in question in the present case, promotions are determined by
the award of priority points, on the proposal of each Directo-
rate General or Promotion Committee, without a comparative
examination of the merits of all officials eligible for promotion
in each grade. Consequently, Articles 6, 8 and 10 of
the
Commission's decision of 26 April 2002 on the general provi-
sions for the implementation of Article 45 of the Staff Regula-
tions (DGE) breach Article 45 of the Staff Regulations. Further-
more, by awarding to each Directorate General a uniform
quota of points per official, those rules prevent the appointing
authority from carrying out that comparative examination.

The applicant states in that regard that the contested decisions
are the result of the criteria established in the Legal Service for
the award of priority points, which lead to those points being
awarded in priority to officials with the most seniority in grade,
irrespective of their merits. Such an approach constitutes a
misuse of power, since it seeks to bring about the promotion
of the largest number and the preparation of promotions for
future years, i.e. to achieve an aim different from that envisaged
by the Staff Regulations, which is to reward merit.

The applicant further relies on two procedural defects, in so far
as the award of the priority points in issue was, he alleges,
decided in the absence of a proposal from the Directorate of
the Legal Service and in breach of the duty to state reasons.

The applicant also claims that there has been a breach of the
principle
reasonable career
prospects and that Articles 9, 12(3) and 13 of the DGE are
illegal.

that an official

should have

Action brought on 27 September 2004 by Eridania Sadam
S.p.A. and Others against the Commission of the European
Communities

(Case T-386/04)

(2004/C 284/55)

(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 24 September 2004 by Eridania
Sadam S.p.A. and Others, represented by the lawyers Gualtiero
Pittalis, Ivano Vigliotti, Gian Michele Roberti, Palo Ziotti and
Alessandra Franchi.

The applicants claim that the Court should:

— annul Article 1(d) of Commission Regulation (EC) No
1216/2004 of 30 June 2004 fixing the derived intervention
price for white sugar for the marketing year 2004/2005 for
all areas in Italy;

— as a secondary matter, declare, pursuant to Article 241 EC,
Article 2 of Council Regulation (EC) No 1260/2001
unlawful and inapplicable, inasmuch as it does not allow
the Commission to take into consideration the existence of
imports bearing zero duty and not subject to a quota for
the purposes of the fixing of the derived intervention price;

— order the Commission to pay the costs.

Pleas in law and main arguments

In this action the companies Eridania Sadam S.p.A.,
Italia
Zuccheri S.p.A., Zuccherificio del Molise S.p.A., Cooperativa
Produttori Bieticoli a.r.l.
(CO.PRO.B.) and Società Fondiaria
Romagnola S.p.A. (SFIR) challenge, pursuant to the fourth para-
graph of Article 230 EC, Commission Regulation (EC) No
1216/2004 of 30 June 2004 fixing the derived intervention
price for white sugar for the marketing year 2004/2005 for all
areas in Italy (OJEC L 232 of 1 July 2004, p. 25).

In support of their action the applicants raise the following
pleas in law.

First, the applicants maintain that the contested regulation is in
various ways incompatible with the basic rules laid down by
the Council
in Regulation (EC) No 1260/2001 of 19 June
2001. Most particularly, they complain that the regulation at
issue wrongly classes Italy as a ‘deficit area’ in respect of sugar
supplies, applying to it as a result the derived prices rules
(known as ‘regionalisation’).