Case T-515/08: Action brought on 19 November 2008 — Mauerhofer v Commission
Date: 2008-11-19
Institutions: Court of First Instance
Subjects: Austria, Bosnia and Herzegovina, European Commission, action for annulment (EU), contractual liability, damage, damages

C 44/50

EN

Official Journal of the European Union

21.2.2009

Appeal brought on 25 November 2008 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 11 September 2008 in
Case F-135/07 Smadja v Commission

— the principle of proportionality cannot be invoked when
statutory provisions, such as Article 5(5) of Annex XIII, read
with Article 46(1)(a) of the Staff Regulations of Officials of
the European Communities, exclude in this instance grading
in a step higher than step 1.

(Case T-513/08 P)

(2009/C 44/88)

Language of the case: French

Parties

Appellant: Commission of the European Communities (repre-
sented by K. Hermann and D. Martin, Agents)

Other party to the proceedings: Daniele Smadja (New Delhi, India)

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal delivered

on 11 September 2008 in Case F-135/07;

— Dismiss the action brought by Mrs Smadja;

Action brought on 19 November 2008 — Mauerhofer v
Commission

(Case T-515/08)

(2009/C 44/89)

Language of the case: English

Parties

Applicant: Volker Mauerhofer (Vienna, Austria) (represented by: J.
Schartmüller, lawyer)

Defendant: Commission of the European Communities

— Order that each of the parties bear their own costs before
the Court of First Instance and the Civil Service Tribunal.

Form of order sought

Pleas in law and main arguments

By the present appeal, the Commission seeks the setting aside of
the judgment of the Civil Service Tribunal (CST) of 11 September
2000 in Case F-135/07, by which the CST annulled the
Commission decision of 21 December 2006 grading the appli-
cant at first instance in Grade A*15, step 1, in consequence of
the judgment of the Court of First Instance of 29 September
2005 in Case T-218/02 Napoli Buzzanca v Commission.

In support of its appeal, the Commission relies one one ground
of appeal, alleging error of law in the interpretation of the prin-
ciple of proportionality.

In three parts, the Commission claims that:

— the principle of proportionality cannot be invoked when
statutory provisions, such as Articles 3 and 4 of the Staff
the European Communities,
Regulations of Officials of
prohibit the Commission from making appointments with
retrospective effect;

— the principle of proportionality cannot lead to the denial of
the authority of a judgment delivered but still possibly
subject to appeal enjoyed by a judgment of the Court of
First Instance;

— primarily, annul the contested measure as far as it concerns

the applicant;

— additionally, or as an alternative to the claim for annulment,
find that the defendant has incurred non contractual liability
through the unlawful adoption of the contested measure;

— order the defendant to pay to the applicant, as a result of
the contested measure, the sum of 5 500 euros for the non-
contractual damages suffered and an annual interest rate of
4 % since 4 November 2008 until delivery of the judgment
bringing the present proceedings to an end.

Pleas in law and main arguments

its

carrying out

tasks within an expert

The applicant seeks the annulment of Commission Decision of
9 September 2008 by which it adopted an administrative order
reducing the number of working days allocated to the applicant
for
contract
No MC/5043/025/001/2008 signed between the applicant and
the Consultant for the participation in a ‘Value Chain Mapping
Analysis’ project based on the Framework Contract ‘EuropeAid/
123314/C/SER/multi’ carried out in Bosnia and Herzegovina,
signed between the Consultant and the Commission. Further-
more,
the compensation for damages
suffered as a result of the contested measure.

the applicant

seeks

21.2.2009

EN

Official Journal of the European Union

C 44/51

The applicant puts forward the following pleas in law in
support of its claims:

the applicant claims that

the contested measure was
First,
adopted by the Commission with breach of procedural require-
ment of a written proposal made by a Consultant prior to the
Commission decision, as required by the General Conditions
and Specific Guidelines applicable to the Framework Contract
project ‘Value Chain Mapping Analysis’.

Second, the applicant submits that the contested measure was
adopted with violation of its right to be heard by impartial
authority.

Third, it argues that the contested measure was adopted with
breach of its right to be dealt with by an authority free of a
conflict of interest.

the applicant contends

Further,
that, when adopting the
contested measure, the defendant failed to correctly and fairly
calculate and analyse the number of working days deducted
from the total number of the days allocated to the applicant for
carrying out its tasks.

Finally, the applicant claims that the Commission misused its
power when adopting the contested measure as it didn't take
into account for the evaluation of a number of working days
allocated to the applicant
the mistakes committed by the
Consultant.

medical treatments and medications to alleviate and or treat
his impaired health, referred to in the first claim above,
which are not available to him through the socialized
medical system of his Member State;

— order the Commission to pay reasonable legal costs and
in bringing the

disbursements incurred by the applicant
present proceedings.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for non-
contractual liability arising from the damages it claims to have
incurred as a result of the alleged illegal refusal by the Commis-
sion to comply with plenary resolution of the European Parlia-
ment (1) and to enforce the application by Denmark of the
provisions of Council Directive 96/29/Euratom of 13 May 1996
laying down basic safety standards for the protection of the
health of workers and the general public against the dangers
arising from ionizing radiation (2)
to the case of workers,
including the applicant, involved in a nuclear accident in Thule,
Greenland.

(1) European Parliament report of 20 April 2007 on the public health
crash (Petition 720/2002)

the 1968 Thule

consequences of
[2006/2012(INI)].

(2) OJ L 159, p. 1.

Action brought on 27 Novembre 2008 — Eriksen/
Commission

Action brought on 2 December 2008 — AIB-Vinçotte
Luxembourg v Parliament

(Case T-516/08)

(2009/C 44/90)

Language of the case: English

(Case T-524/08)

(2009/C 44/91)

Language of the case: French

Parties

Parties

Applicant: Heinz Helmuth Eriksen (Ebeltoft, Denmark)
sented by: I. Anderson, advocate)

(repre-

Applicant: AIB-Vinçotte
Luxembourg ASBL
Luxembourg) (represented by R. Adam, lawyer)

(Luxembourg,

Defendant: Commission of the European Communities

Defendant: European Parliament

Form of order sought

Form of order sought

— order the Commission to pay to the applicant the sum of
800 000 EUR or such other sum as the Court may consider-
able just and equitable for past, present and future pain,
suffering and diminution of
life from
serious
to his health resulting from the
impairments
Commission's capricious and unlawful refusal to enforce the
implementation of medical monitoring of
former Thule
workers for radiation related illnesses and conditions;

the enjoyment of

— order

the
the Commission to pay to the applicant or
medical treating facilities or care givers, the future costs of

— annul the decision of the European Parliament of 2 October
2008 rejecting the offer made by the applicant in connec-
tion with call for tenders INLO — A — BATI LUX —
07 268 & 271 — 00 for the refurbishment and extension
of the Konrad Adenauer Building, Luxembourg,

— reserve to the applicant all other rights, remedies, pleas and
the Parliament pay

actions,
damages in connection with the loss incurred;

in particular an order

that

— in any event, order the Parliament to pay the costs.