Case C-48/05: Action brought on 28 January 2005 by Yves Franchet and Daniel Byk against the Commission of the European Communities
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Anti-fraud Office, European Commission, Eurostat, access to EU information, appeal to the Court (EU), confidentiality, fraud against the EU, fundamental rights, outsourcing, rights of the defence

C 93/36

EN

Official Journal of the European Union

16.4.2005

Action brought on 31 January 2005 by Pila Ange Serrano
and Others against European Parliament

duty to have regard for the welfare of its officials or the prin-
ciple of good administration.

(Case T-47/05)

(2005/C 93/67)

(Language of the case: French)

(1) Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004
amending the Staff Regulations of officials of the European Commu-
nities and the Conditions of Employment of other servants of the
European Communities (OJ L 124 of 27.04.2004, p. 1).

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on 31
January 2005 by Pilar Ange Serrano, residing in Luxembourg,
Jean-Marie Bras, residing in Luxembourg, Dominiek Decoutere,
residing in Wolwelange (Luxembourg), Armin Hau, residing in
Luxembourg, Adolfo Orcajo Teresa, residing in Brussels, and
Francisco Javier Solana Ramos,
residing in Woluwe-Saint-
Lambert (Belgium, represented by Eric Boigelot, lawyer.

The applicants claim that the Court should:

— annul the decision containing the applicants' new classifica-
tion in grade, which was communicated to them, respec-
tively, by an undated and unsigned letter from the Director
General for Personnel;

— annul any act consecutive to and/or relating to that deci-
sion, even one adopted subsequent to the present action;

— order the European Parliament to pay damages, evaluated
on an equitable basis at EUR 60 000 for each applicant,
subject to any increase or reduction during the proceedings;

— in any event, order the defendant to pay the costs.

Action brought on 28 January 2005 by Yves Franchet and
the European
Daniel Byk against

the Commission of
Communities

(Case C-48/05)

(2005/C 93/68)

(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 28 January 2005 by Yves Franchet,
residing in Nice (France), and Daniel Byk, residing in Luxem-
bourg, represented by Georges Vandersanden and Laure Levi,
lawyers.

The applicants claim that the Court should:

— order the Commission, on account of the errors committed,
to make good the pecuniary and non-pecuniary harm
sustained by the applicants, provisionally evaluated at
EUR 1 million;

— order the Commission to pay the entire costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicants are all officials of the European Parliament who
were successful in a competition for a change in category (from
category D to category C, or from category C to category B)
after the entry into force, on 1 May 2004, of the reform of the
Staff Regulations. They claim that their reclassification in grade
according to the new Staff Regulations is less favourable to
them than that which they would have obtained had they not
been successful in the competitions in question.

In support of their application, the applicants rely, first of all,
on an objection of illegality concerning Regulation No 723/
2004 (1) amending the Staff Regulations, based on alleged
breach of the obligation to state reasons, the principles of legal
certainty,
legitimate expectations, proportionality and equal
treatment. They also claim that, in adopting the contested deci-
sions, the European Parliament failed to comply with either its

The applicants were accused by OLAF of criminal offences
relating to the administration of certain files concerning Euro-
stat. The applicants maintain that the measures subsequently
taken by the Commission contain procedural errors and fail to
respect their fundamental rights.

informing the applicants or

In the applicants' submission, OLAF erred in forwarding the file
relating to the accusations to the French and Luxembourg judi-
the
cial authorities without
Commission that it was doing so, breached the principle of
confidentiality, disregarded the presumption of innocence, the
principle of good administration and Article 9 of Regulation
No 1073/1999, (1) the right to be heard and the obligation to
state reasons. The applicants further rely on OLAF's opposition
to access to certain documents and, last, claim that OLAF failed
to deal with the cases within a reasonable time and infringed
Articles 6 and 11 of Regulation No 1973/1999.

16.4.2005

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Official Journal of the European Union

C 93/37

The applicants also claim that the Commission erred in not
ensuring confidentiality and in failing to have regard for funda-
mental rights, in particular the rights of defence and the prin-
ciple of the presumption of innocence. The applicants further
criticise the Commission for having adopted an adversarial
approach and for having duplicated the proceedings, for having
breached the principle of good administration and,
last, for
having refused access to the OLAF documents in its possession.

The applicants claim that
pecuniary and pecuniary harm.

those errors caused them non-

(1) Regulation (EC) No 1073/1999 of the European Parliament and of
the Council of 25 May 1999 concerning investigations conducted
by the European Anti-Fraud Office (OLAF) (OJ L 136, p. 1).

Action brought on 31 January 2005 by Rijn Schelde
Mondia France against the Commission of the European
Communities

(Case T-55/05)

(2005/C 93/69)

(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 31 January 2005 by Rijn Schelde
Mondia France, having its registered office in Rouen (France),
represented by François Citron, lawyer.

The applicant claims that the Court should:

— regard the letter of 7 October 2004 sent by the European
Commission to the Directorate General of Customs in file
REM 2201 as constitutive of a decision of the European
Commission, which adversely affects Rijn Schelde Mondia
France and annul it accordingly;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case objects to the decision alleg-
edly contained in a letter of the Commission dated 7 October
2004 which was sent to the French Directorate General of
Customs.

In this respect,
it is to be borne in mind that the applicant
company requested the French customs authorities by letter of
31 October 2000 to agree to remit the customs duties which
had been notified to it by the Directorate General of Customs
of Rouen and Le Havre,
in respect of a total amount of
EUR 962 058,64. Although the French authorities considered
themselves competent to deal with the application for remis-
sion of duties,
referred the file to the
Commission so that the Commission could rule on ‘whether
the negligence found was manifest in nature or not’.

they nevertheless

By the contested decision the Commission returned the file to
the French customs authorities ‘to be dealt with by your depart-
ment’. Nonetheless,
to the
French authorities that it considered that the applicant was
guilty of manifest negligence and recommended further that
the applicant be refused the benefit of remission of duties.

the Commission did point out

In support of its claims, the applicant asserts that:

— the Commission acted ultra vires in the present case since
although it considered itself not to have the power to deal
with the application for remission of duties, it nevertheless
took a view as to whether the negligence alleged was mani-
fest in nature or not;

— the Commission did not make its decision within the nine-
month time-limit laid down in the second paragraph of
Article 907 of the regulation implementing the Community
Customs Code;

— the Commission failed to observe the duty to give reasons;

— the Commission misused its powers in the present case in
so far as it gave its decision as regards its lack of power
three years after the file had been sent to it by the French
authorities, although it had not known of the argument
relating to lack of power initially raised by the applicant
itself before the French customs authorities.

Lastly, the applicant alleges that the Commission made a mani-
fest error in its assessment in this case of the constituent
elements of manifest negligence.