Case T-213/05: Action brought on 26 May 2005 by Jean-Luc Delplancke and Matteo Governatori against the Commission of the European Communities
Date: 2005-08-06
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, administrative reform, equal treatment, personnel administration, recruitment, regulations for civil servants

6.8.2005

EN

Official Journal of the European Union

C 193/37

The applicant claims that the Court should:

1. annul the decision adopted by the Appointing Authority on
10 February 2005 (notified under cover of a note dated 14
February 2005, received on 25 February 2005), rejecting
the claim brought by the applicant on 16 September 2004
against the decision of 22 June 2004 adopted by the presi-
dent of the selection board of Competition COM/PB/04
refusing the applicant admission to that competition;

2.

in addition, in so far as it is necessary, annul the decision
adopted on 22 June 2004 by the president of the selection
board of Competition COM/PB/04 and the confirmation
thereof dated 19 July 2004;

European Communities on 30 May 2005 by the Italian
Republic, represented by Antonio Cingolo, Avvocato dello
Stato.

The applicant claims that the Court should:

1. annul the following memoranda [No 02772 of 21 March
2005 [POR Campania Region Ob 1 2000-2006 (No. CCI
1999 IT 16 1 PO 007)], No. 04534 of 13 May 2005
[Docup Ob 2 Lombardy Region 2000-2006 (No. CCI 2000
IT 16 2 DO 014)] and No 04537 of 13 May 2005 [Docup
Ob 2 Lombardy Region 2000-2006 (No CCI 2000 IT 16 2
DO 014)]] and all related and prior measures;

3. order the defendant to pay the costs.

2. order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The application of the applicant, an auxiliary agent at the
Commission, for admission to internal competition for change
of category COM/PB/04 was rejected on the ground that he
was not a temporary agent or an official at the closing date for
the lodging of applications.

The pleas in law and main arguments are the same as those
relied on in Case T-345/04 between the Italian Republic and
the Commission (1).

The applicant relies on two pleas, alleging

(1) OJ C 262 of 23.10.2004, p. 55.

— firstly, infringement of Articles 27 and 29(1) of the Staff
Regulations and a manifest error of assessment in that the
contested decisions and the notice of competition had the
effect of excluding candidates who could show that they
had particular skills and considerable professional experi-
ence within the Commission in favour of candidates who
were potentially less competent and who had less effective
seniority in the Commission's services, and

— secondly, infringement of the principle of non-discrimina-
tion in that employees the greater part of whose career had
been spent at the Commission as auxiliary agents would be
admitted to the competition on the sole ground that they
were temporary agents at the closing date for the lodging
of
a
the
temporary agent of long standing, was excluded on the sole
ground that he was an auxiliary agent on that date.

applications, whereas

applicant, who was

Action brought on 26 May 2005 by Jean-Luc Delplancke
and Matteo Governatori against the Commission of the
European Communities

(Case T-213/05)

(2005/C 193/63)

(Language of the case: French)

Action brought on 30 May 2005 by the Italian Republic
against the Commission of the European Communities

(Case T-212/05)

(2005/C 193/62)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 26 May 2005 by Jean-Luc
Delplancke, residing in Braine-le-Comte (Belgium), and Matteo
Governatori, residing in Saint-Josse-ten-Node (Belgium), repre-
sented by Sébastien Orlandi, Xavier Martin, Albert Coolen, Jean
Noël Louis and Etienne Marchal, lawyers, with an address for
service in Luxembourg.

(Language of the case: Italian)

The applicants claim that the Court should:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

— annul the decisions to appoint the applicants officials of the
European Communities to the extent that they set their
recruitment grade pursuant to Article 12 of Annex XIII to
the Staff Regulations;

C 193/38

EN

Official Journal of the European Union

6.8.2005

— order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are identical to those
relied on in Cases T-130/05, T-160/05, T-162/05, T-170/05,
T-183/05 and similar to those relied on in Cases T-58/05, T-
164/05, T-192/05 and T-201/05.

Action brought on 10 June 2005 by Huvis Corporation
against the Council of the European Union

(Case T-221/05)

(2005/C 193/64)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 10 June 2005 by Huvis Corporation, estab-
lished in Seoul (Republic of Korea), represented by J.-F. Bellis, F.
Di Gianni and R. Antonini, lawyers.

The applicant claims that the Court should:

— annul Article 2 of Council Regulation (EC) No 428/2005 of
10 March 2005 imposing a definitive anti-dumping duty
on imports of polyester staple fibres originating in the
People's Republic of China and Saudi Arabia, amending
Regulation (EC) No 2852/2000 imposing a definitive anti-
dumping duty on imports of polyester staple fibres origin-
ating in the Republic of Korea and terminating the anti-
dumping proceeding in respect of such imports originating
in Taiwan insofar as it imposes a definitive anti-dumping
duty on imports from Korea of the product concerned
to the extent
manufactured by Huvis Corporation and,
necessary,
the
basic Regulation on the basis of which the flawed determi-
nations contained in the Contested Regulation relied on;
and

to declare inapplicable the provisions of

— order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

The applicant is a Korean-based company specialising in the
production of polyester filament yarn, polyester staple fibre and
polyethylene terephthalate. By Council Regulation (EC) No

428/2005 (1), the Council
imposed a definitive anti-dumping
duty of 5,7 % on imports of polyester staple fibre manufactured
by the applicant and originating in Korea.

the methodology used by the
The applicant submits that
Council to calculate the applicant's dumping margin and,
in
particular, to calculate the duty drawback adjustment claimed
by the applicant, is contrary to Article 2.4 of the WTO Anti-
Dumping Agreement, since it did not produce a fair compar-
ison between the applicant's export price and the normal value
and it imposed an unreasonable burden of proof on the appli-
cant.

The methodology used to calculate the applicant's duty draw-
back adjustment also violated the principles of legal certainty,
legitimate expectations, sound administration and proportion-
ality, since by using this methodology the Council unlawfully
the
increased the applicant's dumping margin. Moreover,
Council violated Article 11(9) of the basic Anti-Dumping Regu-
lation as in the review proceeding at stake it applied a different
methodology for the calculation of the duty drawback adjust-
ment than that used in the original investigation. The metho-
dology also violates the principle of non-discrimination as a
more favourable methodology was applied by the Council in
other similar cases.

The applicant further submits that the rejection of the credit
costs claimed by the applicant in the framework of the review
proceeding is contrary to Article 2.4 of
the WTO Anti-
Dumping Agreement, since it did not produce a fair compar-
ison between the applicant's export price and the normal value
and the evidence sought by the Council in support of the credit
costs adjustment amounts to an unreasonable burden of proof
on the applicant.

The rejection of the credit costs claimed by the applicant also
violated the principle of
sound administration since this
determination was based on the finding that the applicant did
not provide written evidence in support of its claim, whereas
the payment terms granted by the applicant were agreed on the
basis of customary business rules in force in the Republic of
Korea.

(1) Council Regulation (EC) No 428/2005 of 10 March 2005 imposing
a definitive anti-dumping duty on imports of polyester staple fibres
originating in the People's Republic of China and Saudi Arabia,
amending Regulation (EC) No 2852/2000 imposing a definitive
anti-dumping duty on imports of polyester staple fibres originating
in the Republic of Korea and terminating the anti-dumping
proceeding in respect of such imports originating in Taiwan (OJ
L71, p. 1)