Case C-420/04 P: Appeal brought on 29 September 2004 by Georgios Gouvras against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities
Date: 2004-11-20
Institutions: Court of Justice
Subjects: European official, General Court (EU), action for annulment (EU), allowances and expenses, pay, regulations for civil servants, rights of civil servants

C 284/12

EN

Official Journal of the European Union

20.11.2004

‘Is Article 871 of the Community Customs Code relating to the
recovery of the amount of the customs debt to be interpreted
as establishing an essential and obligatory procedure, non-
if the national
compliance with which will result in nullity,
customs authorities have expressed doubts, at any time during
the recovery procedure concerning a person liable for payment
acting in good faith, as regards the precise scope of the criteria
relating to the recovery or the remission of duties resulting
from a customs debt which has been eluded because it was not
entered in the accounts on the date when that debt should
have given rise to recovery (debt relating to the possible incor-
poration into the purchase price of audiovisual equipment
supplied by a Canadian supplier of a flat-rate charge compulso-
rily included in the entry price to the amusement park in
which the equipment is operated, whether or not the visitor
who paid the charge made use of the equipment)?’

his remuneration transferable to Luxembourg during the
period of his secondment;

— give directions granting the applicant leave to amend his

pleas in law and forms of order sought;

— alternatively, annul the Commission's decision of 14 June
2001 in its entirety and the Commission's decision of
30 April 2002 in so far as it restricts to 35 % of his remu-
neration the part transferable to Luxembourg, the place of
his usual posting;

— order the defendant to pay the costs of both cases.

Pleas in law and main arguments:

The Court of First Instance made an error of law in finding that
the Commission had provided the applicant with the informa-
tion necessary to enable him to maintain his interests before
agreeing to be seconded in the interest of the service. In fact, it
did not inform him of the decision to fix his place of posting
in Athens or of the financial consequences thereof such as the
withdrawal of his right to the expatriation allowance and of his
right to the payment of the costs of annual travel as well as the
application to his remuneration of the correction coefficient for
Greece.

Also, the Court of First Instance made an error of law in
finding that the conditions laid down by Article 85 of the Staff
Regulations were satisfied in this case. In fact, the recovery of
sums paid but not due under Article 85 of the Staff Regulations
presupposes a payment irregularity of which the recipient was
aware or whose erroneous nature is so obvious that he could
not fail to be aware of it. In the absence of express provisions
in the Staff Regulations governing the fixing of the place of
posting, it could not be a matter, in this case, of an irregularity,
and, in any event, in the light of the Commission's own uncer-
tainties regarding the applicant's entitlements, he cannot be
presumed to have been aware of it.

Finally, the Court of First Instance made an error of law in
finding that, notwithstanding the exceptional situation of the
applicant whose place of posting was changed more than 9
months after his secondment, the Commission could lawfully
reject his claim made in accordance with Article 38(d) of the
Staff Regulations, for the transfer, in the conditions provided
for by Article 17 of Annex VII to the Staff Regulations, of the
sums indispensable to cover the expenses which he had to
meet in Luxembourg, the place of his usual posting.

Appeal brought on 29 September 2004 by Georgios
Gouvras against the judgment delivered on 15 July 2004
by the Third Chamber of the Court of First Instance of the
European Communities in Joined Cases T-180/02 and T-
113/03 between G. Gouvras and the Commission of the
European Communities

(Case C-420/04 P)

(2004/C 284/24)

An appeal against the judgment delivered on 15 July 2004 by
the Third Chamber of the Court of First Instance of the Euro-
pean Communities in Joined Cases T-180/02 and T-113/03
between G. Gouvras and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 29 September 2004 by Georgios
Gouvras, represented by A. Coolen, J.-N. Louis, E. Marchal and
S. Orlandi.

The appellant claims that the Court should:

— order the annulment of the judgment of the Court of First
Instance of 15 July 2004 in Joined Cases T-180/02 and T-
113/03 (Georgios Gouvras v Commission of the European
Communities) in so far as it rejects the claims for annul-
ment in Case T-180/02 and those against the Commission's
Decision of 30 April 2002 to restrict to 35 % the part of