Case T-377/04: Action brought on 16 September 2004 by Bart Nijs against the Court of Auditors of the European Communities
Date: 2004-11-20
Institutions: Court of First Instance
Subjects: European Court of Auditors, European official, action by staff, action for annulment (EU), information profession, promotion

C 284/26

EN

Official Journal of the European Union

20.11.2004

The contested decision is also in breach of Article 176 EC since
the Commission is not entitled to debar the Member States
from making an additional contribution to climate protection
by withdrawing allocated emission certificates where they have
failed to fulfil their purpose.

Finally, the Commission overlooked the fact that new market
participants cannot be placed at an ‘unjustifiable advantage’
because ex-post adjustments can be made only downwards. To
that extent the contested decision is vitiated by a manifest error
of assessment.

(1) Directive 2003/87/EC of

the
Council of 13 October 2003 established a scheme for greenhouse
gas
trading within the Community and
amending Council Directive 96/61/EC (OJ 1996 L 275, p. 32).

the European Parliament and of

emission allowance

Action brought on 17 September 2004 by Polyelectrolyte
Producers Group against the Council of the European
Union and the Commission of the European Communities

(Case T-376/04)

(2004/C 284/51)

(Language of the case: English)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 17
September 2004 by Polyelectrolyte Producers Group, Brussels
(Belgium) represented by K. Van Maldegem and C. Mereu,
lawyers.

The applicant claims that the Court should:

— Order the annulment of the defendant's decision to allow
Norway to apply more stringent concentration limits for
the chemical substance acrylamide than those applicable in
the Community, embodied in Decision of the EEA Joint
Committee No 59/2004 of 26 April 2004 (1) amending
Annex II (Technical regulations, testing and certification) to
the EEA Agreement and the annulment of the Community's
position for the adoption of that decision;

— Declare the illegality and the inapplicability vis-à-vis the
applicant of
the EEA Joint Committee joint statement
concerning the EEA Agreement — Annex II, Chapter XV —
regarding the review clauses in the field of dangerous
substances of 26 March 1999 (2),
in so far as it allows
Norway to apply concentration limits for the chemical
substance acrylamide that are more stringent than those
that apply in the Community;

— Order the defendant to compensate the applicant in the
provisional amount of one Euro for damages suffered as a

result of the adoption of the contested acts, as well as any
applicable interests, pending the exact calculation and
determination of the exact amount;

— Order defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments:

to adopt

In support of its application the applicant submits that, in the
absence of new Community legislation there was no power
under Article 102 EEA Agreement
the contested
measures. The applicant further considers that the contested
measures restrict the free movement of goods and thus infringe
Articles 1, 3 and 97 of the EEA Agreement. It also claims that
they infringe Articles 30 and 31 of Directive 67/548 (3). The
applicant also invokes infringements of general principles of
Community law, namely the principles of legal certainty and
legitimate expectations, proportionality and of non-discrimina-
tion as well as of essential procedural requirements, namely the
need to consult the European Parliament and the duty to state
reasons.

Regarding its action for damages the applicant submits that
because of the contested measures it has suffered both material
damage, due to the need to label the polyarcylamide sold in
Norway with a more restrictive label and danger warnings
incurring additional costs, as well as non-material damage
the Norwegian measures
since,
allowed by the defendant shed a bad light over the classification
of polyarcylamide beyond Norwegian boundaries.

in the applicant's opinion,

(1) OJ L 277, p. 30.
(2) OJ C185, p. 6.
(3) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to
the classification, packaging and labelling of dangerous substances
OJ English special edition: Series I Chapter 1967 p. 234.

Action brought on 16 September 2004 by Bart Nijs
against the Court of Auditors of the European Commu-
nities

(Case T-377/04)

(2004/C 284/52)

(Language of the case: French)

the Court of Auditors of

An action against
the European
Communities was brought before the Court of First Instance of
the European Communities on 16 September 2004 by Bart
Nijs,
represented by
Fränk Rollinger, lawyer, with an address for service in Luxem-
bourg.

residing in Bereldange (Luxembourg),

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.