Case T-58/05: Action brought on 3 February 2005 by Isabel Clara Centeno Mediavilla and Others against Commission of the European Communities
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), administrative reform, competition (EU), recruitment, regulations for civil servants

C 93/38

EN

Official Journal of the European Union

16.4.2005

Action brought on 3 February 2005 by Isabel Clara
Centeno Mediavilla and Others against Commission of the
European Communities

(Case T-58/05)

(2005/C 93/70)

(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 3 February 2004 by Isabel Clara
Centeno Mediavilla, residing in Seville (Spain), and 16 others,
represented by Georges Vandersanden, Laure Levi and Aurore
Finchelstein, lawyers.

The applicant claims that the Court should:

— annul the classification in grade granted to the applicants in
their recruitment decisions, in so far as that classification is
based on Article 12(3) of Annex XIII to the new Staff Regu-
lations;

— in consequence,

the

applicants'

reconstitute

careers
(including recognition of their experience in grade thus
amended, their rights to promotion and their pension enti-
tlement) on the basis of the grade in which they should
have been appointed as stated in the competition notice
following which they were placed on the reserve recruit-
ment list, either in the grade appearing in that competition
notice, or, corresponding to its equivalent according to the
classification in the new Staff Regulations (and the appro-
priate step in accordance with the rules applicable before 1
May 2004), on the basis of the decision appointing them;

— award the applicants default interest, based on the rate
fixed by the European Central Bank, on all the sums corre-
sponding to the difference between the salary corre-
sponding to their classification in the recruitment decision
and the classification to which they should have been
entitled up to the date of the decision properly classifying
them in grade;

— order the Commission to pay the entire costs.

Pleas in law and main arguments

The applicants took part in competitions for recruitment as
officials within the Commission and were place on the reserve
recruitment list before 1 May 2004, the date on which Council
Regulation (EC, Euratom) No 723/2004 of 22 March 2004
amending the Staff Regulations of officials of the European
Communities and the Conditions of Employment of other
servants of the European Communities (1) entered into force.
The applicants were actually appointed after 1 May 2004 and

were classified in grade and in step according to the transitional
provisions of the new Staff Regulations, as set out in Article 12
of Annex XIII. The applicants state, first, that as a result they
were classified in a lower grade than that set out in the compe-
tition notices and, second, that the new grades attributed to
them no longer correspond to the former category A or B
grades in which they were recruited.

In support of their application, the applicants put forward, first
of all, an objection of illegality in respect of Article 12 of
Annex XIII. The applicants maintain that Article 12 of Annex
XII to the new Staff Regulations fails to observe the principle of
equal treatment and non-discrimination in that candidates who
were successful in the same competition were treated differ-
ently as regards their classification in grade, depending on
whether they were recruited before 1 May 2004 or after that
date.

They further claim that Article 12 of Annex XIII breaches
Article 31 of the new Staff Regulations. In their submission,
the grade that must be conferred on an official who has been
recruited is, in accordance with Article 31, the grade indicated
in the notice of the competition to which he was admitted. The
grade conferred on the applicants upon their recruitment is
different from the grade mentioned in the competition notice.

The applicants also contend that article 12 of Annex XIII
breaches Article 5 of the new Staff Regulations, the principle of
equal treatment and non-discrimination and the principle of
equivalence of post and grade. They claim that their posts were
not reclassified according to the nature and level of the duties
carried out from the aspect of each typical post and that,
contrary to Article 5(5) of the new Staff Regulations, the appli-
cants did not enjoy the same conditions of recruitment and
career progression by comparison with the successful candi-
dates in the same competition who were appointed before 1
May 2004.

They also contend that Article 12 of Annex XIII infringes the
principle lf legal certainty and the principle of non-retroactivity,
the applicants' acquired rights and their legitimate expectation.
They maintain that their rights in respect of their classification
in grade came into existence when they appeared on the
reserve recruitment list and that it is on the basis of that infor-
mation that they may be assured that if they are appointed
they will receive the classification in grade set out
in the
competition notice.

The applicants claim, last, that, contrary to Article 10 of the
new Staff Regulations, the Staff Committee was not consulted a
second time when the Commission altered its initial proposal
to amend the Staff Regulations and introduced the text the
legality of which is disputed.

16.4.2005

EN

Official Journal of the European Union

C 93/39

In support of their action, the applicants also claim that there
has been a breach of the principle of good administration, of
the principle that an institution is to have regard for the
welfare of its officials, of the principle of transparency, of the
principle of legitimate expectations, of the principle of good
faith, of the principle of equal treatment and non-discrimina-
tion and of the principle of equivalence of post and grade.

(1) OJ L 124, p. 1.

Justice and the Court of First Instance cited above, namely
whether the defendant complied with its obligations in the
context of the examination of the complaint. The applicants
submit that, in rejecting the complaint on the ground of an
alleged lack of Community interest,
the contested decision
infringes the legal rules relating to assessment of Community
interest,
is vitiated by a contradiction in the grounds and
contains a number of errors of law, as regards the rejection of
that part of the complaint based on Articles 86 EC, 82 EC, 3(g)
EC and 10 EC.

Specifically, the applicants claim in particular that the Commis-
sion made errors in assessing the elements which necessarily
make up the definition of Community interest, since, in order
to give reasons for its finding that there is no Community
it must assess the seriousness and duration of the
interest,
infringements alleged in the complaint. Consequently, it is not
sufficient to establish whether anti-competitive effects still exist
and, in the absence of such effects, that there is no Community
interest in continuing the examination of the complaint.

that

As regards the duration of the infringement, the applicants
the Commission merely examined
criticise the fact
whether the incidental effects of the alleged infringements still
existed (development of market shares, competitors leaving the
market, price sensitivity of demand, absence of persistent
effects in terms of price, etc), without paying attention to the
main effect of a structural nature, namely having placed SFMI-
Chronopost in a position of market leader and having main-
tained it there.

As far as reasoning is concerned, it is pointed out that, in the
contested decision, the Commission asserts, on the one hand,
that it is perfectly able to check the level to which la Poste
covers costs, which in the light of both Article 82 EC and
Article 87 EC would be the only calculation making it possible
to ascertain the existence of cross-subsidies, and, on the other
hand, that the reason for not checking the level to which la
Poste covers costs in the light of Article 82 EC is that this
would have amounted to a duplication of the work which it is
required to undertake itself
the
complaint.

for the State aid part of

The applicants also contest the Commission's assertion that the
benefits granted to Chronopost in terms of customs clearance
and franking come within the scope of the action of the French
State in the field of its public authority and do not fall within
the scope of Article 82 EC in conjunction with Article 86 EC.

(1) Case C-119/97 P UFEX and Others v Commission [1999] ECR I-
1341, and Case T-77/95 REV UFEX and Others v Commission [2000]
ECR II-2167.

Action brought on 2 February 2005 by Union française de
l'express (UFEX) and Others against the Commission of
the European Communities

(Case T-60/05)

(2005/C 93/71)

(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 2 February 2005 by Union française
de l'express (UFEX), having its registered office at Roissy
Charles de Gaulle (France), DHL International SA, having its
registered office at Roissy Charles de Gaulle (France), Federal
Express International (France) SNC, having its registered office
at Gennevilliers (France), and CRIE, having its registered office
at Asnières (France), represented by Eric Morgan de Rivery and
Jacques Derenne, lawyers.

The applicants claim that the Court should:

— annul Commission decision SG-Greffe (2004) D/205294 of

19 November 2004;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present application seeks annulment of
the decision
rejecting the complaint lodged in December 1990 by UFEX,
then called SFEI, against la Poste as a result of cross-subsidies
allegedly amounting to an abuse of a dominant position to the
benefit of Société Française de Messagerie Internationale (SFMI).
That decision is the consequence of a request to reopen the
procedure before the Commission following annulment by the
Community Court of
the Commission's decision of 30
December 1994, which rejected the initial complaint. (1)

The main issue raised in the present case is still the same as
that which was the subject of the judgments of the Court of