Case T-71/05: Action brought on 14 February 2005 by Jacques Wunenburger against the Commission of the European Communities
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, regulations for civil servants, staff assessment

30.4.2005

EN

Official Journal of the European Union

C 106/35

Action brought on 14 February 2005 by European
the European Maritime Safety
Dynamics S.A. against
Agency

prior experience, that were neither specified nor included in
the call for tenders.

(Case T-70/05)

(2005/C 106/71)

(Language of the case: English)

The applicant also claims that the defendant committed a mani-
fest error of appreciation in considering that the successful
bidder's offer was superior to that of the applicant. In this
respect, the applicant contends that no predetermined objective
methodology was used to evaluate its offer,
that on the
contrary the criteria used left room for subjective evaluation
and that, finally, there were no clear and objective metrics.

An action against the European Maritime Safety Agency was
brought before the Court of First Instance of the European
Communities on 14 February 2005 by European Dynamics
S.A., established in Athens (Greece), represented by N. Koro-
giannakis, lawyer.

The applicant claims that the Court should:

— annul the decision of EMSA, to evaluate the applicant's bid
as not successful and award the contract to the successful
contractor;

— annul all subsequent decisions of EMSA related to the
Tenders under examination in the current application;

— order EMSA to pay the applicant's legal costs and other
costs and expenses incurred in connection with the applica-
tion, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed bids in response to EMSA's calls
for tenders EMSA C-1/0104-2004 (1) and EMSA C.2/06/04 (2)
for the SafeSeaNet Validation and further development and for
the marine casualty database, network and management
system. By the contested decisions the applicant's bids were
rejected and the contracts awarded to another bidder.

that

In support of its application to annul the contested decisions
the applicant claims first of all
the defendant agency
violated the principles of good faith and good administration
by acting with significant delay and failing to offer adequate
answers to the tenderers' requests before the submission of the
bids. The defendant refused to answer the applicant's questions,
on the grounds that they had not been submitted in time, even
though it had accepted indirectly that technical problems under
its own control prevented the questions from being received.
The applicant considers that had the defendant answered its
questions timely and with diligence, it would have been able to
submit a more competitive offer.

finally submits that

The applicant
failed to
provide pertinent information and state adequate reasons for its
acts by not replying to the applicant's legitimate and timely
questions.

the defendant

(1) OJ 2004/S 126-106254.
(2) OJ 2004/S 128-108027.
(3) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities, OJ L 248, 16/09/2002 p. 1.

(4) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992 p. 1.

Action brought on 14 February 2005 by Jacques Wunen-
burger against the Commission of the European Commu-
nities

(Case T-71/05)

(2005/C 106/72)

(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 14 February 2005 by Jacques
Wunenburger, residing in Zagreb (Croatia), represented by Eric
Boigelot, lawyer.

The applicant claims that the Court should:

The applicant further contends that the defendant violated the
Financial Regulation (3) as well as Article 17(1) of Directive
92/50 (4) by using evaluation criteria, especially the tenderers'

1. annul the draft staff report for the period from 1 July 1997
to 30 June 1999, transmitted to the applicant on 22 March
2002;

C 106/36

EN

Official Journal of the European Union

30.4.2005

2. annul the draft staff report for the period from 1 July 1999
to 30 June 2001, transmitted to the applicant on 22 March
2002;

Action brought on 14 February 2005 by Alejandro Martín
Magone against Commission of the European Commu-
nities

3. award compensation for non-pecuniary damage resulting
from the absence of staff reports in the applicant's personal
file for the reporting periods 1997-1999 and 1999-2001
and the effect on his career, that damage being assessed on
an equitable basis at EUR 9 996, subject to any increase
during the proceedings;

4. order the Commission to pay the costs.

Pleas in law and main arguments

The applicant asserts that since the reporting period 1997-
1999 he has been unable to obtain final staff reports.

He observes in this respect that it is settled case-law that a staff
report may not be annulled solely on the ground that it has
been drawn up late, unless exceptional circumstances are
present; such circumstances could be constituted by a delay in
drawing up the reports that is so great that the reporters can
no longer remember the work done. That is the case with the
draft staff reports at issue.

(Case T-73/05)

(2005/C 106/73)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance on 14
February 2005 by Alejandro Martín Magone, residing in Brus-
sels, represented by Eric Boigelot, lawyer.

The applicant claims that the Court of First Instance should:

— annul the career development report drawn up in respect of
the applicant's performance (ref. 2700, ECHO) between 1
January 2003 and 31 December 2003, including the appeal
procedures and other decisions relating thereto;

— annul

the decision of

the appointing authority of 28
October 2004, received on 12 November 2004, rejecting
the complaint lodged under Article 90(2) of the Staff Regu-
lations of Officials on 26 July 2004;

— hold that the applicant has been the victim of mental and

professional harassment;

— award the applicant compensation for material and non-
material damage assessed on an ex aequo et bono basis as
EUR 39 169,67, or such greater sum as may be awarded in
the proceedings;

In support of his application, the applicant submits:

— order the defendant to pay the costs.

— Infringement of the second paragraph of Article 225 and
Articles 26 and 43 of the Staff Regulations, and of the
general implementing provisions relating to the application
of Article 43 of those regulations, concerning the procedure
for drawing up staff reports;

— Abuse of powers in the present case;

— Disregard of certain general principles of

law, such as
respect for the rights of the defence, the principle of sound
administration, the protection of
legitimate expectations,
compliance with the duty to have care, the principle of
equal
treatment, and the principles which require the
appointing authority to take decisions only on the basis of
legally admissible grounds, that is, grounds which are rele-
vant and not vitiated by manifest errors of assessment of
the facts or the law.

Pleas in law and main arguments

first, a
In support of his application, the applicant alleges,
manifest error of assessment, defective procedure and abuse of
power, in that the very negative and damaging marks awarded
to him were based on matters that did not concern him during
the period concerned.

Next, the applicant alleges that no reasons were given for the
contested measure and claims that for years he was subjected
to mental harassment by his superiors. According to the appli-
cant, that was apparent from the remarks contained in the
contested report.

Finally, the applicant claims that his special situation exposed
him to serious psychological problems, a fact which was not
taken into account by the defendant when the duties assigned
to him were changed. Therefore, the defendant failed in its
duty of care and infringed the principle of sound administra-
tion.