Case C-417/05 P: Appeal brought on  24 November 2005  by the Commission of the European Communities against the judgment delivered on  13 September 2005  by the Court of First Instance of the European Communities (First Chamber) in Case T-272/03  M.D. Fernández Gómez  v  Commission of the European Communities
Date: 2006-01-14
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), admissibility, interpretation of the law, servant (EU), work contract

14.1.2006

EN

Official Journal of the European Union

C 10/17

Action brought on 24 November 2005 by the Commission
of the European Communities against the Grand Duchy of
Luxembourg

the measures necessary to comply with it within a period of
two months.

(Case C-416/05)

(2006/C 10/33)

(Language of the case: French)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 24 November 2005 by the Commission of the Euro-
and
pean Communities,
F.Simonetti, acting as Agents, with an address for service in
Luxembourg.

by C.F. Durand

represented

The Commission of the European Communities claims that the
Court should:

1. declare that, by failing to adopt the measures necessary to
comply with the judgment of the Court of Justice of the
European Communities of 2 October 2003 in Case C-89/03
concerning the failure to transpose Directive 93/15/EEC (1)
into Luxembourg law, the Grand Duchy of Luxembourg has
failed to fulfil
its obligations under Article 228(1) of the
Treaty establishing the European Community;

the European Communities,

2. order the Grand Duchy of Luxembourg to pay to the
Commission of
into the
account ‘European Community own resources’, a penalty
payment of EUR 9 000 for each day of delay in complying
with the judgment in Case C-89/03 from the day on which
judgment is delivered in the present case until the day on
which the judgment in Case C-89/03 is complied with;

3. order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments:

In its judgment of 2 October in Case C-89/03 Commission of the
European Communities v Grand Duchy of Luxembourg, the Court
declared that:
'By failing to bring into force the laws, regulations
and administrative provisions necessary to comply with Council Direc-
tive 93/15/EEC of 5 April 1993 on the harmonisation of the provi-
sions relating to the placing on the market and supervision of explo-
sives for civil uses, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that directive.'

By letter of 7 November 2003, the Commission drew the atten-
tion of
the Luxembourg authorities to the judgment of 2
October 2003 and requested that the measures adopted in
order to comply with this judgment be communicated to it.

The Luxembourg authorities indicated,
Grand Ducal regulation could be finalised at
November 2004.

in reply, that a draft
the latest by

On 14 December 2004, the Commission delivered a reasoned
opinion calling on the Grand Duchy of Luxembourg to take

In a letter of 19 September 2005, the Luxembourg authorities
referred to the fact that the Conseil d'État (Council of State), in
an opinion of 12 October 2004, considered that the scope of
the draft regulation was, in accordance with the Constitution, a
matter for loi (legislative provision).

According to the information available to the Commission, the
Grand Duchy of Luxembourg has still not transposed the direc-
tive at issue.

In accordance with the second sentence of the second sub-
paragraph of Article 228(2) EC, the Commission is to specify
in its application the amount of the lump sum or penalty
payment to be paid by the Member State concerned which it
considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty
payment of EUR 9 000 a day fits the seriousness and duration
of the infringement and takes into consideration the need to
give this penalty payment the required deterrent effect.

(1) Council Directive 93/15/EEC of 5 April 1993 on the harmonisation
of the provisions relating to the placing on the market and supervi-
sion of explosives for civil uses (OJ L 121, 15.5.1993, p. 20).

Appeal brought on 24 November 2005 by the Commission
of the European Communities against the judgment deliv-
ered on 13 September 2005 by the Court of First Instance
of the European Communities (First Chamber) in Case T-
272/03 M.D. Fernández Gómez v Commission of the Euro-
pean Communities

(Case C-417/05 P)

(2006/C 10/34)

(Language of the case: French)

An appeal against the judgment delivered on 13 September
2005 by the Court of First Instance of the European Commu-
nities (First Chamber) in Case T-272/03 M.D. Fernández Gómez
v Commission of the European Communities was brought before
the European Communities on 24
the Court of
November 2005 by the Commission of the European Commu-
nities, represented by D. Martin and L. Lozano Palacios, acting
as Agents.

Justice of

C 10/18

EN

Official Journal of the European Union

14.1.2006

The appellant claims that the Court should:

— set aside the judgment under appeal;

— pass final

judgment on the dispute, allowing the claims
submitted by the defendant at first instance and, conse-
quently, dismissing the application in Case T-272/03;

— in the alternative, refer the case back to the Court of First

Instance;

— order Ms Fernández Gómez to pay the costs of the proceed-
ings, including her own costs in the proceedings before the
Court of First Instance.

Pleas in law and main arguments:

In its appeal, the Commission relies on three pleas:

1. The first plea alleges that the Court of First Instance erred in
law in holding the action to be admissible on the ground
that the letter of 19 January 2001 did not amount to a deci-
sion, and that the measure contested at first instance, that is
the electronic mail of 12 May 2003, was not merely confir-
matory but contained a new element in relation to the
contract of 17 January 2001 and the letter of 19 January
2001. The Commission considers that the action is inadmis-
sible inasmuch as the letter of 19 January 2001 and the
contract of 17 January 2001 define the administration's
final position with regard to the applicant. These are there-
fore the measures which the applicant should have chal-
lenged. The Commission submits that the electronic mail of
12 May 2003 neither constitutes a decision nor contains the
slightest new element in relation to the previous measures.
The Court should thus dismiss the action as inadmissible.

2. The second plea alleges an error of law in the interpretation
of the decision of 13 November 1996,
in particular the
concept of 'staff not governed by the Staff Regulations'.
According to the Commission, it is apparent from its objec-
tive and its very wording, as well as from the context in
which it was taken, that the decision covered all the 'admin-
istrative positions or contracts with the Commission' of all
the staff at the Commission that are not officials. In the
alternative, the Commission maintains that the Court of
First Instance ruled ultra petita and misinterpreted Article 8
of the Conditions of Employment of Other Servants of the
European Communities. Where, as in the present case, a
provision in the Staff Regulations provides the appointing
authority with a mere option, the exercise of that option
falls within its wide discretionary power.

3. The third plea alleges a breach of Community law by
is

awarding compensation for alleged material

loss that

neither actual nor quantifiable. It alleges, in the alternative, a
failure to comply with the duty to provide reasons when
calculating the damage, thereby preventing the Court from
reviewing whether the principle of proportionality has been
observed.

Appeal brought on 29 November 2005 by the Commission
of the European Communities against the judgment deliv-
ered on 13 September 2005 by the Court of First Instance
of the European Communities (First Chamber) in Case T-
72/04 between S. Hosman-Chevalier and the Commission
of the European Communities

(Case C-424/05 P)

(2006/C 10/35)

(Language of the case: French)

An appeal against the judgment delivered on 13 September
2005 by the Court of First Instance of the European Commu-
nities (First Chamber) in Case T-72/04 between S. Hosman-
Chevalier and the Commission of the European Communities
was brought before the Court of
the European
Communities on 29 November 2005 by the Commission of
the European Communities, represented by H. Kraemer and M.
Velardo, acting as Agents.

Justice of

The appellant claims that the Court should:

— set aside the judgment under appeal and refer the case back

to the Court of First Instance;

— order the applicant at first instance to pay the costs of the
including her own costs in the proceedings

proceedings,
before the Court of First Instance.

Pleas in law and main arguments

The Commission submits a single plea against the judgment
under appeal alleging breach of Community law in paragraphs
31 to 36 and 42 of that judgment. More precisely, it considers
that the Court of First Instance misinterpreted the condition
relating to ‘work done for another State’ laid down at the end
of the second indent of Article 4(1)(a) of Annex VII to the Staff
Regulations.