Case C-495/06 P: Appeal brought on 1 December 2006 by Bart Nijs against the judgment of the Court of First Instance (Second Chamber) delivered on 3 October 2006 in Case T-171/05 Bart Nijs v Court of Auditors
Date: 2007-02-24
Institutions: Court of Justice
Subjects: European Court of Auditors, European official, General Court (EU), appeal, personnel administration, promotion

24.2.2007

EN

Official Journal of the European Union

C 42/9

— The Court of First Instance erred in law by distinguishing
the AGL from the situation at issue in

the situation of
Adria-Wien Pipeline (1) when assessing selectivity.

— The Court of First Instance erred in law by accepting that an
environmental levy is non-selective because it is applied to a
specific sector, without requiring or providing a clear defini-
tion of that sector.

— The Court of First Instance erred in law by applying the
wring ‘standard of review’ to the Commission decision.

— The Court of First Instance erred in its assessment of the
‘nature and general scheme’ of the AGL. and in relation to
the issue of the export exemption.

— The Court of First Instance erred in law by confirming that
the Commission was under no obligation to initiate a
formal investigation procedure.

— The Court of First Instance erred in law by finding that the

contested decision is sufficiently reasoned.

(1) [2001]ECR I-8365.

Appeal brought on 1 December 2006 by Bart Nijs against
the judgment of
Instance (Second
the Court of First
Chamber) delivered on 3 October 2006 in Case T-171/05
Bart Nijs v Court of Auditors

(Case C-495/06 P)

(2007/C 42/15)

Language of the case: French

Parties

Appellant: Bart Nijs (represented by: F. Rollinger, avocat)

Other party to the proceedings: Court of Auditors of the European
Communities

Form of order sought

The appellant claims that the Court should:

— declare the appeal admissible and well-founded;

— set aside the judgment of the Court of First Instance (Second
Chamber) of 3 October 2006 in Case T-171/05 Bart Nijs v
Court of Auditors;

— annul the decisions which were the subject of the applica-
tion in Case T-171/05,
inter alia the decision establishing
the definitive version of the appellant's staff report for the
2003 reporting period and the decision to promote Ms Y to
the position of reviser in the Dutch unit of the Court of
Auditor's translation service in 2004;

— grant

the application for compensation for

the damage
suffered, corresponding to the applicant's loss of income as
against the situation in which he would have been placed
had he been promoted;

— order the Court of Auditors to pay the costs of the action,
of the two sets of interim proceedings and of the present
appeal.

Pleas in law and main arguments

By his appeal, the appellant essentially alleges that the Court of
First Instance omitted to rule on the ninth plea in the applica-
tion, concerning the Appointing Authority's failure to comply
with its obligation to notify the European Anti-Fraud Office
(OLAF) of the instances of intimidation and fraud adversely
affecting the Community invalidity pensions scheme of which it
had been informed. Had such an investigation been carried out,
it would have revealed a number of breaches of procedure by
the Appointing Authority and, in particular, the fact that Ms Y
unlawfully temporarily carried out higher duties and the fact
that
the appellant's superior unlawfully carried out his/her
duties. Likewise, the fact that the Appointing Authority did not
inform the Appeal Committee of the personal interest which the
superiors of the two officials concerned had in those officials'
assessments casts doubt on the legality of the definitive version
of the appellant's staff report.

In the second place, the appellant disputes the Court of First
Instance's statement that he did not provide any evidence such
as to prove the accuracy of his claim that Ms Y was asked to
carry out on a temporary basis the duties of a reviser or, at
least, to make that claim plausible. Firstly, he was not actually
aware of that temporary posting in March 2003 and that infor-
mation, discovered more than two years later, therefore indeed
constitutes a new fact, which means that his pleading of 16
December 2005 should be held admissible. Secondly, the 11
pleas put forward in the application, far from weakening the
argument as to the unlawful
temporary posting, have the
completely opposite effect and actually strengthen it. However,
the Court of First Instance did not comment on any of those
pleas and based its reasoning on a single plea, which the appel-
lant himself has never relied on.

Lastly, the appellant maintains that the decisions not to promote
him and to promote Ms Y must be regarded as constituting one
indivisible decision which was indeed taken before the official
date, namely on the application of Article 7(2) of the Staff Regu-
lations to Ms Y's career in autumn 2003, and that the decision
to promote Ms Y does constitute an act adversely affecting the
appellant on the grounds that it changes his legal position and
simultaneously constitutes an abuse of power, a disguised sanc-
tion and a measure which discriminates against him.