Case C-17/07 P: Appeal brought on 22 January 2007 by Wineke Neirinck against the judgment of the Court of First Instance (Second Chamber) delivered on 14 November 2006 in Case T-494/04 Neirinck v Commission
Date: 2007-04-28
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action by staff, appeal, personnel administration, servant (EU)

28.4.2007

EN

Official Journal of the European Union

C 95/15

Operative part of the judgment

(2) The costs are reserved.

The Court:

1. Declares that, by failing to adopt the laws, regulations and admin-
istrative provisions necessary to comply with Directive 2002/14/EC
of the European Parliament and of the Council of 11 March 2002
establishing a general
informing and consulting
employees
in the European Community, within the period
prescribed, the Italian Republic has failed to fulfil its obligations
under that directive.

framework for

2. Orders the Italian Republic to pay the costs.

(1) OJ C 224 of 16.9.2006.

(1) OJ C 294, 2.12.2006, p. 33.

Appeal brought on 22 January 2007 by Wineke Neirinck
against the judgment of the Court of First Instance (Second
Chamber) delivered on 14 November 2006 in Case T-494/
04 Neirinck v Commission

(Case C-17/07 P)

(2007/C 95/26)

Language of the case: French

Order of the Court (Sixth Chamber) of 8 February 2007 —
Landtag Schleswig-Holstein v Commission of the European
Communities

(Case C-406/06) (1)

Parties

(Action of annulment — Court of Justice having no jurisdic-
tion — Referral to Court of First Instance)

(2007/C 95/25)

Language of the case: German

Appellant: Wineke Neirinck (represented by: G. Vandersanden,
L. Levi, avocats)

Other party to the proceedings: Commission of
Communities (represented by:
Agents)

the European
J. Curall, D. Martin, acting as

Parties

Applicant:
Schleswig-Holstein
S. Laskowski and J. Caspar, acting as agents)

Landtag

(represented

by:

Form of order sought

Defendant: Commission of the European Communities

Re:

Annulment of Commission decisions of 10 March 2006 and
23 June 2006 refusing to grant the applicant access to the docu-
ment SEC(2005) 420, of 22 March 2005, containing a legal
analysis relating to a draft framework decision, under discussion
in the Council, on the retention of data processed and stored in
connection with the provision of publicly available electronic
communication services or data transmitted on public commu-
nications networks, for the purposes of prevention, investiga-
tion, detection and prosecution of crime and criminal offences,
including terrorism (Council document 8958/04 CRIMORG 36
TELECOM 82)

Operative part of the order

(1) Case C-406/06 Landtag Schleswig-Holstein v Commission is
referred to the Court of First Instance of the European Commu-
nities.

— Set aside the judgment of the Court of First Instance of

14 November 2006 in Case T-494/04;

— accordingly, uphold the applicant's claims at first instance

and, thus,

— annul the decision of which the applicant became aware
at the meeting of Unit OIB.1 (Office for Infrastructures
and Logistics in Brussels — implementation of building
policy) of 4 March 2004 that another candidate had
been selected for the post of
lawyer in the building
policy sector within the OIB to which the applicant had
applied (decision to recruit Mr D. S. as an auxiliary
member of staff and decision not to appoint the appli-
cant as an auxiliary member of staff);

— annul the decision of 9 March 2004 informing the appli-

cant that her application had been rejected;

— annul

the subsequent decision of 27 April 2004
informing the applicant that she had not passed the oral
test of the recruitment procedure for contractual agents
and annul the decision of that date to recruit Mr D. S.;

C 95/16

EN

Official Journal of the European Union

28.4.2007

— in any event, award EUR 30 000 by way of compensa-
tion for material and non-material damage and harm
suffered by the applicant, that amount being assessed on
equitable principles on a provisional basis;

— order the defendant to pay the entire costs incurred at first

instance and on appeal.

Pleas in law and main arguments

The applicant raises six pleas in support of her appeal.

By her first plea in law, she submits, first of all, that the Court
of First Instance, by declaring the first head of claim for annul-
ment inadmissible, disregarded the conditions of admissibility of
an appeal based on Article 236 EC and Articles 90 and 91 of
the Staff Regulations and, in particular, the concept of a legal
interest in bringing proceedings. The decision to recruit Mr D.
S. as an auxiliary member of staff by 1 May 2004 in fact had
the effect, first, of increasing the number of candidates for the
selection procedure for contractual agents for the position occu-
pied by the applicant, and, secondly, of making it impossible to
give the applicant a contract as a temporary member of staff,
which clearly highlighted the interest which she had in securing
annulment of that decision.

By her second plea, the applicant argues that the Court did not
fulfil its general duty to state reasons by considering that the
information contained in the decision of 27 April 2004 could
be regarded as constituting a statement of reasons of some kind
and that the supplementary information provided in the course
of the proceedings compensated for the initial inadequacy of the
statement of reasons. First, the decision of 27 April 2004 did
not contain any reasons as to the particular situation of the
applicant and did not set out any specific circumstances or facts
known to the applicant such as to enable her to ascertain the
scope of the decision. Secondly, such a lack of reasons cannot
be covered by explanations provided by the competent authority
after the appeal was lodged on pain of infringing the rights of
the defence and the principal of equal treatment of the parties
before the Community judicature.

By her fourth plea, the applicant submits that the Court also
distorted the evidence and disregarded the concept of abuse of
process by holding that the evidence put forward by the appli-
cant did not enable an abuse of process or infringement of the
interest of the service to be established. All the factors put
forward by the applicant constitute, on the contrary, both
consistent and relevant evidence of an abuse of process since,
although two distinct sets of proceedings were brought by the
defendant, the duties which they sought to appeal were the
same, which reflects the desire of the defendant to give advan-
tage to Mr D. S. in taking up the duties of the applicant after
30 April 2004.

By her fifth plea, the applicant argues that the Court disregarded
the concepts of the interest of the service and manifest error of
assessment by holding that the selection procedure for contrac-
tual agents had not been infringed and by refusing, as a result,
to review the assessment made by the selection committee of
the applicant's oral examination.

By her six plea, the applicant alleges, finally, breach by the
Court of the principles of due care and sound administration.

Reference for a preliminary ruling from the Diikitiko
Efetio Athinon (Greece) lodged on 5 February 2007 —
Motosikletistiki Omospondia Ellados (MOT.O.E) v Elliniko
Dimosio

(Case C-49/07)

(2007/C 95/27)

Language of the case: Greek

Referring court

Diikitiko Efetio Athinon

By her third plea, the applicant asserts that the Court distorted
the evidence by concluding, in paragraph 105 of the judgment
under appeal, that the selection procedure was not based on a
comparative examination of the candidates' merits. That conclu-
sion is in fact contradicted both by the defendant's written
pleadings and by other passages in the judgment under appeal
in which the Court itself makes explicit reference to a compara-
tive examination — within that recruitment procedure — of the
candidates' merits.

Parties to the main proceedings

Applicant: Motosikletistiki Omospondia Ellados (MOT.O.E)

Respondent: Elliniko Dimosio (Greek State)