Case C-231/08 P: Appeal brought on 29 May 2008 by Massimo Giannini against the judgment delivered on 12 March 2008 in Case T-100/04 Massimo Giannini v Commission
Date: 2008-05-29
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), appeal, competition (EU), equal treatment, servant (EU)

C 223/22

EN

Official Journal of the European Union

30.8.2008

(d) Conversely,

is a refusal

to recruit someone justified
under Article 6(1) of Directive 2000/78/EC only if the
person would be recruited at an age which, given his
likely retirement date, would result in the minimum
pension being payable although it had not yet been
fully earned?

8.

(a) Should the date of retirement for the purposes of point
(c) of the second subparagraph of Article 6(1) of Direc-
tive 2000/78/EC be determined on the basis of the age
limit fixed by law for retirement and subsequent receipt
of a pension, or must it be based on statistical calcula-
the average retirement age of a particular
tions of
group of officials or employees?

(b) Where applicable, to what extent should it be taken
into consideration that in individual cases the normal
date of an official's retirement can be postponed by up
to two years? Does that circumstance lead to a corre-
sponding increase in the maximum recruitment age?

9. Can the initial

in-service training to be completed be
included in the calculation of
the minimum period of
service under Article 6(1) of Directive 2000/78/EC? In that
respect, is it relevant whether the training period has to be
fully accounted for as pensionable service for the purpose
of obtaining the pension, or should the period of training
be excluded from the time period for which an employer
may require a minimum length of service under point (c) of
the second subparagraph of Article 6(1) of Directive
2000/78/EC?

10. Are

the

provisions

of
Paragraph 15(1) and in Paragraph 15(3) of the General Law
on Equal Treatment compatible with Article 17 of Directive
2000/78/EC?

sentence

second

the

in

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annulment of the judgment of the Court of First Instance of
the European Communities of 12 March 2008 in Case
T-100/04;

— Grant of the appellant's claims in the forms of order sought

at first instance and consequently,

— annulment of

the decision of

the selection board in
competition COM/A/9/01 not to include the appellant's
name on the competition reserve list, a decision notified
to the appellant by letter of 11 June 2003, and so far as
necessary, annulment of the decision refusing the appel-
lant's application for review, a decision notified to the
appellant by letter of 8 July 2003, and annulment of the
decision rejecting the appellant's complaint, a decision
notified to the appellant by letter of 2 December 2003;

— award of damages in respect of material damage assessed
(i) on the difference between the unemployment benefit
received on conclusion of a temporary staff contract and
the salary of an official graded A7 step 4 and (ii) after
the period of unemployment, on the amount of salary
paid to an official graded A7 step 5, and in respect of
non-material damage, assessed at EUR 1;

— order that the Commission pay all of

the costs at first

instance and on appeal.

(1) OJ 2000 L 303, p. 16.

Pleas in law and main arguments

Appeal brought on 29 May 2008 by Massimo Giannini
against the judgment delivered on 12 March 2008 in Case
T-100/04 Massimo Giannini v Commission

(Case C-231/08 P)

(2008/C 223/34)

Language of the case: French

Parties

Appellant: Massimo Giannini
C. Ronzi, lawyers)

(represented by: L. Levi and

The appellant relies in essence on three principal grounds in
support of his appeal.

In his first ground of appeal, the appellant complains that the
Court of First Instance infringed his right to a fair trial and,
more particularly, the right to have his case determined within a
reasonable time. Four years elapsed between the date of the case
being brought before the Court of First Instance and the date of
delivery of the contested judgment. According to the appellant,
there was no exceptional circumstance which in this case justi-
fied such a length of time. The documents before the Court
were neither particularly voluminous nor legally complex and
the proceedings had real importance for the appellant.

In his second ground of appeal, the appellant claims that the
Court of First Instance infringed Articles 4, 27 and 29 of the
Staff Regulations and misinterpreted both the concept of the
interests of the service and the duty of the Community institu-
tions to have regard for the welfare of their servants and offi-
cials. According to the appellant, the Court of First Instance
confused in that regard entry into the Community civil service,
by means of an open competition intended to establish a
recruitment reserve, and the career development of persons
already employed by means of the mechanisms, provided for by
the Staff Regulations, of transfers and promotions.

30.8.2008

EN

Official Journal of the European Union

C 223/23

In his third ground of appeal, the appellant claims that the
Court of First
Instance disregarded the obligation to state
reasons in judgments and the principles of non-discrimination
and respect for the rights of the defence, and that the Court
distorted the clear sense of the evidence presented for its assess-
ment. This ground of appeal can be broken down into three
parts.

In the first part of the third ground of appeal, the appellant
submits that the Court of First Instance disregarded both the
principle of non-discrimination and its obligation to state
reasons and the rules on the adducing of evidence by
concluding that the fact that some candidates in the competition
had knowledge of the document on which the written test was
based did not imply an infringement of the principle of non-
discrimination and by not
the Commission
the absence of discrimination
provide concrete evidence of
linked to that fact.

requiring that

the clear sense of

In the second part of this third ground of appeal, the appellant
claims that there was an infringement of the principle of non-
discrimination and a distortion of
the
evidence presented for assessment by the Court of First Instance
since the Court considered that the selection board was suffi-
ciently constant in composition to ensure the objective compar-
ison and marking of candidates, when the evidence in the docu-
ments before the Court demonstrated on the contrary that the
composition of
sufficiently
constant and when several essential pieces of factual informa-
tion were not made known to the Court of First Instance by the
Commission.

selection board was not

that

Lastly, in the third part of this ground of appeal, the appellant
relies on a further infringement of the principle of non-discrimi-
nation and the rules on the adducing of evidence, and a viola-
tion of the rights of the defence, in relation to the conclusions
drawn by the Court of First Instance as regards the impartiality
of the members of the selection board.

Reference for a preliminary ruling from the Landesgericht
lodged on 2 June 2008 —
Ried im Innkreis (Austria)

Criminal proceedings against Roland Langer

Party to the main proceedings

Roland Langer

Questions referred

1. Is Article 43 EC (Treaty establishing the European Com-
munity,
in the version of 2 October 1997, most recently
amended by the Treaty of 25 April 2005 concerning the
accession of the Republic of Bulgaria and Romania to the
European Union (OJ 2005 L 157, p. 11)) to be interpreted as
precluding a provision which provides that only public
limited companies established in the territory of a particular
Member State may there operate games of chance in casinos,
thereby necessitating the establishment or acquisition of a
company limited by shares in that Member State?

2. Are Articles 43 EC and 49 EC to be interpreted as precluding
a national monopoly on certain types of gaming, such as
games of chance in casinos,
if there is no consistent and
systematic policy whatsoever in the Member State concerned
to limit gaming,
licensed organisers
inasmuch as national
encourage participation in gaming — such as public sports
betting and lotteries — and advertise such gaming (on televi-
sion and in newspapers and magazines) in a manner which
goes as far as offering a cash payment for a lottery ticket
shortly before the lottery draw is made (‘TOI TOI TOI —
Believe in luck!’)?

3. Are Articles 43 EC and 49 EC to be interpreted as precluding
a provision under which all
licences granting the right to
operate games of chance and casinos are issued for a period
of 15 years on the basis of a scheme under which Com-
munity competitors (not belonging to that Member State) are
excluded from the tendering procedure?

a

for

Reference
from the
preliminary
Bundesfinanzhof (Germany) lodged on 4 June 2008 —
Swiss Re Germany Holding GmbH v Finanzamt München
für Körperschaften

ruling

(Case C-235/08)

(2008/C 223/35)

(Case C-242/08)

(2008/C 223/36)

Language of the case: German

Language of the case: German

Referring court

Landesgericht Ried im Innkreis

Referring court

Bundesfinanzhof