Case T-353/05: Action brought on 20 September 2005 — Gabrielle Giancarla Sharon Kubanski v the Commission of the European Communities
Date: 2005-11-12
Institutions: Court of First Instance
Subjects: European Commission, action by staff, personnel administration, servant (EU)

C 281/32

EN

Official Journal of the European Union

12.11.2005

Action brought on 16 September 2005 — Republic of
Finland v Commission of the European Communities

2003/2180, and by not giving reasons for the refusal contrary
to Article 253 EC.

(Case T-350/05)

(2005/C 281/58)

Language of the case: Finnish

(1) Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000
implementing Decision 94/728/EC, Euratom on the system of the
Communities' own resources, OJ L 130 of 31.5.2000, p. 1.

Parties

Applicant(s): Republic of Finland (represented by: Tuula Pynnä,
Agent)

Defendant(s): Commission of the European Communities

Action brought on 20 September 2005 — Gabrielle Gian-
carla Sharon Kubanski v the Commission of the European
Communities

(Case T-353/05)

(2005/C 281/59)

Language of the case: Italian

Form of order sought

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

Parties:

the Court of

— annul the Commission's decision, dated 8 July 2005 and
notified on the same day, refusing, contrary to the principle
of loyal cooperation under Article 10 EC and to the case-
law of
concerning conditional
Justice
payments, to open negotiations with Finland on the condi-
tional payment of
the retroactive customs duties and
interest on them up to the date of payment
default
demanded by the Commission from Finland in infringement
proceedings 2003/2180 under Article 226 EC, and

(Leggiuno,
Applicant(s): Gabrielle Giancarla Sharon Kubanski
Italy) (represented by: Massimo Condinanzi and Devis Bono,
lawyers)

Defendant(s): the Commission of the European Communities

— order the Commission to pay the costs.

Form of order sought

Pleas in law and main arguments

In the contested decision the Commission considered that in
the present case it was not under an obligation to act within
the meaning of Article 232 EC. Finland had, in its letter under
Article 232 EC, called on the Commission, under the principle
of loyal cooperation under Article 10 EC and the case-law of
the Court of Justice on conditional payments, to take a decision
to enter into negotiations with Finland on the conditional
payment, pending the decision of the Court of Justice in the
case, of the disputed customs debt and the associated default
interest.

Finland submits that by taking the contested decision the
Commission infringed the EC Treaty or the legislation relating
to its application within the meaning of the second paragraph
of Article 230 EC by refusing, contrary to the principle of loyal
cooperation under Article 10 EC and the case-law of the Court
of Justice on conditional payments, to start negotiations on the
the retroactive customs duties and
conditional payment of
default interest on them up to the date of payment demanded
by the Commission from Finland under Regulation (EC,
Euratom) No 1150/2000 (1)
in infringement proceedings

The applicant claims that the Court should:

— annul the Commission's decision of 14 June 2005 rejecting
the applicant's complaint No R/170/05 of 16 February
2005 and, consequently, annul decision D(2002)34440 of
16 December 2004;

— order the Commission to pay the shortfall in the applicant's
salary as of 16 January 2005 until the date of the appli-
cant's actual reinstatement in Grade B IV, step 2, at a figure
to be quantified in the course of the proceedings, if neces-
sary with the aid of expert evidence;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant in this case is contesting the defendant's decision
to terminate her fixed-term contract as a temporary agent
signed on 4 October 2004. It should be pointed out in this
respect that the reasons given by the Commission for the termi-
nation were connected with the applicant's alleged failure to
meet the requirements under Article 5 of the Staff Regulations
of officials of the European Communities. In particular, the

12.11.2005

EN

Official Journal of the European Union

C 281/33

Commission alleges that Mrs Kubanski's educational qualifica-
tion (diploma di Addetto agli Uffici Turistici — Tourist Agency
diploma of accreditation) does not qualify her for classification
in Category B*4, step 2, which was allocated to her in the
contract.

In support of her claims, the applicant submits:

— that the requirements laid down in notice of competition
COM/2004/5352/R, which is the basis of the procedure
under which the applicant was engaged and which has
given rise to these proceedings, did not state that it was
necessary for the applicant to possess a specific educational
qualification;

— infringement and misapplication of Article 5(3)(a)(i) and (ii)
of the Staff Regulations. She alleges in this respect, on the
one hand, that her diploma is a qualification which attests
that she has completed a three-year course of secondary
studies conferring a vocational qualification giving access to
post-secondary education and, on the other hand,
that
between 1 May 2001 and 30 April 2004 the applicant
performed duties with the Joint Research Centre in Ispra
which are absolutely identical to those required for the post
announced in the notice of competition in the present case.

— Infringement of Articles 14 and 47 to 50(a) of the condi-
tions of employment of other servants of the European
Communities.

— Infringement of the principle of protection of legitimate

expectations.

— Unlawful conduct on the part of the Administration in that
it breached the principles of legal certainty and equal treat-
ment.

Action brought on 19 September 2005 — Generalitat
Valenciana v Commission of the European Communities

(Case T-357/05)

(2005/C 281/60)

Language of the case: Spanish

Parties:

— annul Commission Decision C (2005) 1867 concerning the
reduction of the assistance granted from the Cohesion Fund
to Project No 97/11/61/028.

Pleas in law and main arguments

This action arises out of Commission Decision C (97) 3882 of
5 December 1997, by
virtue of which assistance of
EUR 75 011 715 was granted from the Cohesion Fund to
Project No 97/11/61/028 in Spain, called the ‘Project for the
collection and treatment of waste water on the Mediterranean
coast of the Autonomous Community of Valencia’ (a general
project consisting of 12 different
schemes). The original
amount was later increased to EUR 92 742 913.

After carrying out an audit mission, the Commission uncovered
a series of irregularities in the award procedure followed, essen-
tially the use of experience as a criterion for the award of
contracts and the average price method as the procedure for
evaluating the price tendered. In the contested decision, which
reduces the total assistance granted by EUR 2 217 537, the
defendant considers that there have been infringements of Arti-
cles 18 and 30 of Council Directive 93/37/EEC of 14 June
1993 concerning the coordination of procedures for the award
of public works contracts, (1) and of Article 2 of the Financial
Regulation of 21 December 1977 applicable to the general
budget of the European Communities.

In support of its claims, the applicant argues:

— that the Community legislation expressly refers to experi-
ence as a criterion for selection, whereas, although experi-
ence is not expressly mentioned in the list of possible
implementing criteria, it may readily be observed that the
listing of those criteria in the legislation is merely illustra-
tive, and not exhaustive, and does not envisage excluding
the possible use of experience as an additional criterion for
the award of the contract. This conclusion is reinforced by
Community case-law itself;

— that, in any case, it is plainly impossible to consider that
including experience as one of the award criteria in the
contract documents constitutes a serious and obvious
infringement, without which,
in accordance with Com-
munity legislation and case-law, liability cannot be incurred;

— that application of the ‘average price’ methodology as a
means of evaluating the price criterion is not expressly
forbidden by Community rules and that
the case-law
precludes it only when it is the only criterion used, but not
where it is used together with others.

Applicant(s): Generalitat Valenciana (Valencia, Spain)
sented by José Vicente Sánchez-Tarazaga Marcelino, lawyer)

(repre-

The applicant also alleges breach of the principles of legal
certainty, protection of legitimate expectations, non-retroactive
effect and proportionality.

Defendant(s): Commission of the European Communities

(1) OJ L 199 of 9 August 1993, p. 54.

Form of order sought

The applicant claims that the Court should: