Case T-314/05: Action brought on 10 August 2005 — Arko and Others v Commission
Date: 2005-11-12
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, promotion, regulations for civil servants, staff assessment

12.11.2005

EN

Official Journal of the European Union

C 281/23

Action brought on 2 August 2005 — Torijano Montero v
Council

Action brought on 10 August 2005 — Arko and Others v
Commission

(Case T-302/05)

(2005/C 281/43)

Language of the case: French

Parties

Applicant(s): Javier Torijano Montero (Brussels, Belgium) (repre-
sented by: S. Rodrigues, lawyer, A. Jaume, lawyer)

Defendant(s): Council of the European Union

Form of order sought

The applicant(s) claim(s) that the Court should:

Principally:

— annul the decision of the appointing authority rejecting the
applicant's complaint together with the decision of appoint-
ment adopted by the appointing authority on 20 October
2004 in so far as it determined his grade pursuant to
Article 12(3) of Annex XIII to the Staff Regulations;

— advise the appointing authority of the consequences of the
annulment of
in particular the
the contested decisions,
regrading of the applicant in grade A*8 with retroactive
effect as from 16 October 2004, the date on which the
decision of appointment of 20 October 2004 took effect;

In the alternative:

— order the Commission to compensate the loss suffered by
the applicant as a result of not having been graded, at least
in grade A*8, as from 16 October 2004, the date on which
the decision of appointment of 20 October 2004 took
effect.

In any event:

— order the defendant to pay all the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicant
are, for the most part, identical to those relied on in Case T-
207/05 Schulze v Commission. (1) The applicant also claims that
there has been a breach of the rules concerning the correspond-
ence between types of posts, on the one hand, and categories
and grades, on the other.

(Case T-314/05)

(2005/C 281/44)

Language of the case: French

Parties

Applicant(s): Eva Arko (Brussels, Belgium) and 28 others (repre-
sented by: S Rodrigues and A. Jaume, lawyers)

Defendant(s): Commission of the European Communities

The applicants claim that the Court should

Primarily:

— annul the decisions of appointment taken by the defendants
in that they determine the applicants' grade under Article
12(3) of Annex XIII to the Staff Regulations and their step
under the provisions in force since the 1 May 2004;

— state to the defendants what the effect is of the annulment
of the contested decisions and, in particular, of the reclassi-
fication of the applicants in accordance with the table of
equivalence in Article 2(1) of Annex XIII to the Staff Regu-
lations, with retroactive effect from the dates on which the
decisions to appoint the applicants took effect;

In the alternative:

— order the Commission to make reparation for the damage
the applicants suffered as a result of the fact that they were
not classified under Article 2(1) of Annex XIII to the Staff
Regulations,
from the dates on which the decisions to
appoint the applicants took effect.

(1) OJ C 193, 6.8.2005, p. 36.

In any event:

— order the defendants to pay all the costs.

C 281/24

EN

Official Journal of the European Union

12.11.2005

Pleas in law and main arguments

— Order the Commission to pay the costs.

The applicants, Commission officials, are successful candidates
of a competition which took place before the amendments to
the Staff Regulations entered into force on 1 May 2004.
Recruited after that date, they were appointed to the grade and
step prescribed in the new Staff Regulations, which they
consider to be less advantageous. By this action, they dispute
their appointments.

They submit that Article 12 of Annex XIII to the Staff Regula-
tions is inapplicable in the present case and, in the alternative,
that that provision is unlawful and in breach of a number of
principles of Community law. In that respect, they refer, firstly,
to the principles of non-discrimination, equal treatment and
freedom of movement for workers. The applicants submit that
these principles have been infringed because the majority of
the officials affected are nationals of the new Member States.
They also submit that they have been discriminated against in
comparison with officials included on the same list of suitable
candidates and appointed prior to 1 May 2004.

In the same context, the applicants plead the alleged infringe-
ment of Article 31 of the Staff Regulations, which provides
that new officials are to be nominated to the grade and func-
tion group set out in the competition notice, the alleged infrin-
gement of the principles of protection of legitimate expecta-
tions, legal certainty, sound administration and proportionality,
and the administration's duty to have regard for the interests of
officials, and misuse of powers.

Pleas in law and main arguments

The applicant is an importer and wholesaler of floral products
and is principally engaged in importing into the Netherlands
and further processing various kinds of cut foliage originating
mainly in non-Member States.

The applicant is challenging the Commission's decision not to
object to an alteration in aid to flower producers approved in
the framework of Files N 766/95 and NN 84/00. That system
of aid concerns the rules governing a trade association for
floral products established by the Horticultural commodity
board, a subgrouping of the Netherlands trade organisation
established under public law.

In support of its application the applicant submits that the
Commission wrongly did not inquire whether the aid scheme
in question is compatible with the common market and is in
conflict with Articles 23 and 25 EC. According to the applicant
there is therefore an infringement of the duty under Article
253 EC to provide a statement of the reasons on which the
decision is based.

The applicant further submits that the contested decision runs
counter to Articles 23 and 25 EC. According to the applicant
the aid scheme approved by the Commission does not consti-
tute internal taxation within the meaning of Article 90 EC but
rather a charge having equivalent effect to a customs duty
within the meaning of Articles 23 and 25 EC. This conclusion
follows from the fact
the
national and imported product with like severity, at the same
transactional stage and on the basis of the same chargeable
event, and that there are no national products of the same kind
as or competing with the taxed imported product with the
result that there cannot be said to be an internal system of
taxation.

the charge does not affect

that

least

In the applicant's view, the Commission decision is also incom-
prehensible or at
inadequately reasoned and thus in
conflict with Article 253 EC. The applicant submits that the
Commission refers in the decision to earlier decisions which
are unsupported by a statement of reasons or in which the
Commission gives its approval to an entirely different charge
that that which is appraised in the decision. Moreover, the
Commission appears to be manifestly in error as to the facts,
inter alia by finding in the decision that the charge at issue is
not imposed on imported products.

Finally, the applicant declares that as a party concerned it was
not given an opportunity to make known its views and was
unable to exercise its procedural rights under Article 88(2) EC.

Action brought on 11 August 2005 — ADOMEX Interna-
tional BV v Commission

(Case T-315/05)

(2005/C 281/45)

Language of the case: Dutch

Parties

Applicant(s): ADOMEX International BV (represented by G. Van
der Wal, Advocate, and T. Boesmans, Advocate)

Defendant(s): Commission

Form of order sought

The applicant(s) claim(s) that the Court should:

— Annul Commission Decision C(2005) 592 fin, Case N 372/

2003 of 16 March 2005;