Case T-421/05: Action brought on  3 November 2005  — Kay v Commission
Date: 2005-11-03
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, appointment of staff, regulations for civil servants, staff assessment

C 48/36

EN

Official Journal of the European Union

25.2.2006

Action brought on 18 November 2005 — Sanchez Ferriz v
Commission

Action brought on 18 November 2005 — Bain and Others
v Commission

(Case T-413/05)

(2006/C 48/70)

Language of the case: French

(Case T-419/05)

(2006/C 48/71)

Language of the case: French

Parties

Applicant: Carlos Sanchez Ferriz (Brussels, Belgium) (represented
by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Parties

Applicants: Neil Bain (Brussels, Belgium), Obhijit Chatterjee
(Brussels, Belgium), Richard Fordham (Bergen, Netherlands) and
Roger Hurst (Bergen, Netherlands) (represented by: N. Lhoëst,
lawyer)

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

The applicants claim that the Court should:

The applicant claims that the Court should:

— annul the applicant's career development report (REC/CDR)

for the period 1.7.2001 — 31.12.2002;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

In support of his action, the applicant first submits that Article
26 of the Staff Regulations has been infringed, on the ground
that his staff report is not physically present in his personal
file, but is stored in electronic form and that there is no sign of
the first version of that report either in the paper file or in the
electronic file.

The applicant also claims infringement of Article 43 of the
Staff Regulations, of the General Implementing Provisions for
that latter article and of the Appraisal Guide and the special
guide for the 2001-2002 exercise, on account of the fact that
the appraisers are required by the Commission to comply with
a ‘target’ average in respect of appraisal.

The applicant next submits that the system of merit points,
established by the Commission, makes it possible to classify
equally a number of officials with varying levels of performance
which, in the applicant's view, infringes the principle of equal
treatment.

Lastly, the applicant claims breach of the prohibition of arbi-
trary procedures and of the duty to state reasons, an abuse of
powers, breach of the principle of protection of
legitimate
expectations, of the rule patere legem quam ipse fecisti (abide by
your own rules) and of the duty to have regard for the welfare
and/or interests of officials.

— annul the applicants' pay slips for the months of February,
March and April 2005, and all subsequent pay slips, to the
extent that they apply the unlawful provisions of Regulation
No 723/2004 of 22 March 2004 amending the Staff Regu-
lations of Officials of the European Communities, and of
Regulation No 856/2004 fixing the new correction coeffi-
cients and Regulation No 31/2005 adjusting them;

— as far as is necessary, annul the decisions of the appointing
authority of 29 July 2005,
rejecting the applicants'
complaints (R/458.14/05, R/458.5/05, R/458.12/05 and R/
458.2/05);

— order the defendant to pay all the costs in the case.

Pleas in law and main arguments

The pleas in law and arguments relied on by the applicants are
identical to those relied on by the applicant in Case T-393/05.

Action brought on 3 November 2005 — Kay v Commis-
sion

(Case T-421/05)

(2006/C 48/72)

Language of the case: French

Parties

Applicant: Roderick Neil Kay (Brussels, Belgium)
by: T. Bontinck and J. Feld, lawyers)

(represented

Defendant: Commission of the European Communities

25.2.2006

EN

Official Journal of the European Union

C 48/37

Form of order sought

The applicant claims that the Court should:

— annul the defendant's decision of 31 January 2005;

— order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant was an official of the Commission in grade B*7.
After passing the external competition COM/A/3/02, he was
appointed by the contested decision to an administrator post in
grade A*6.

By his action, the applicant disputes his classification, submit-
ting that he should have been classified in one of the grades
A*8, A*9 or A*10. He also disputes the loss of all his promo-
tion points, constituting his ‘rucksack’, following his reclassifi-
cation.

In support of his action, the applicant claims infringement of
Article 2(2) of Annex XIII to the Staff Regulations, which he
considers applicable to his situation, instead of Article 5(2) of
In addition, he
that annex, which the Commission applied.
pleads breach of
legitimate
expectations, protection of acquired rights and equal treatment
between officials.

the principles of protection of

Action brought on 5 December 2005 — Mediocurso —
Estabelecimento de Ensino Particular SA v Commission of
the European Communities

(Case T-425/05)

(2006/C 48/73)

Language of the case: Portuguese

Parties

Applicant(s): Mediocurso — Estabelecimento de Ensino Particu-
(represented by: Carlos Botelho
lar, SA (Lisbon, Portugal)
Moniz and Eduardo Maia Cadete, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— order joined to this case the administrative proceedings
relating to Dossier FSE 890588/P1 under way in the

Commission of the European Communities and the Depart-
ment for European Social Fund Affairs, part of the Minis-
tério para a Qulificação e o Emprego (Ministry for Qualifi-
the Portuguese Republic,
cations and Employment) of
which department is situated at 72 Av. Almirante Reis (3rd
floor), P-1100, Lisbon, Portugal;

— annul the decision of the Commission of the European
Communities of 13 September 2005 ‘Reducing the amount
of assistance granted by the European Social Fund to the
entity “Mediocurso — Estabelecimento de Ensino particular,
Lda”, in accordance with Commission Decision C (89) 0570
of 22 March 1989 in connection with Project No 890588
P1’, with the reference ‘C(2005) 3557’;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant
is a commercial company with the object,
according to its memorandum and articles of association, of
‘providing training and technical specialisation courses and
drawing up projects, studies, advice on matters of company
economics, tax, accountancy and management and operation’.
In 1988 it presented to the European Social Fund, through the
Department for European Social Fund Affairs, various applica-
tions for assistance relating to training projects that it said it
would carry out during 1989,
including the application for
assistance at issue in these proceedings which gave rise to File
890588 P1. The application for assistance in that file was
approved and the vocational training programmes to which it
related were implemented, with the result that the applicant
presented the corresponding request for final payment.

The act challenged by the applicant is the decision adopted by
the Commission following the presentation of the claim for
final payment and various procedural documents.

The applicant claims that the Commission has infringed essen-
tial procedural requirements, having regard to the inadequacy
of the reasons given for the contested decision.

It also alleges breach of the principles of legal certainty and of
the protection of
in so far as the
legitimate expectations,
contested act is incompatible, in a manner disadvantageous to
the applicant, with the earlier act certifying the accuracy of the
facts and accounts given by the applicant in the final payment
application it had submitted. Last, it alleges a manifest error in
the assessment of the documentary evidence of expenditure put
forward by Mediocurso and breach of the principle of propor-
tionality, in that the contested decision does not deal with the
grounds of fact and law relied on in support of the reduction
of assistance which is its subject-matter.