Case T-567/08 P: Appeal brought on 19 December 2008 by Bart Nijs against the judgment of the Civil Service Tribunal delivered on 9 October 2008 in Case F-49/06 Nijs v Court of Auditors
Date: 2008-12-19
Institutions: Court of First Instance
Subjects: European Court of Auditors, European official, action by staff, appeal, promotion, regulations for civil servants, staff assessment

7.3.2009

EN

Official Journal of the European Union

C 55/39

In support of its action, the applicant puts forward 11 pleas in
law alleging infringement of: Article 81 EC; the duty to state
reasons; the 2006 Guidelines on the method of setting fines (1);
and the principles of proportionality, the presumption of inno-
cence,
the penalty
should fit the offence, in that the Commission:

legal certainty, equal

treatment and that

— held that the practices relating to waxes and paraffin, on the
one hand, and to slack wax, on the other, constituted a
single and continuous infringement, and held the practices
in relation to slack wax to be an agreement;

— wrongly found a

single and continuous

infringement
consisting of an agreement for price-fixing; market and/or
it was merely an exchange of
customer sharing, even if
information concerning the state of
the paraffin market;
prices and future strategies in relation to tariffs; the custo-
mers and the volumes which could be attributed to the
applicant;

— first, misinterpreted the Community case-law on undertak-
ings publicly distancing themselves by holding the applicant
responsible for the entire duration of the wax and paraffin
aspect of the cartel, although the applicant had ceased to
participate in ‘technical meetings’ after
the meeting of
11 and 12 May 2004, that is to say, nearly one year before
the infringement and, second, allowed the
the end of
intended withdrawal of Repsol from the cartel before the
end of
the applicant,
the infringement, and not that of
although the applicant was in an equivalent situation;

— required the applicant to prove that it publicly distanced

itself from the cartel;

— did not take account of the applicant's failure to implement

the cartel;

— used the value of sales from the last three financial years in
which the applicant had participated in the cartel, instead of
the value of sales for the last year in which it had partici-
pated;

— found a percentage of the value of sales for the slack wax

aspect of the infringement which was too high;

— applied the method for setting the fine laid down in point 24
of the Guidelines which is contrary to Article 23(3) of Regu-
lation No 1/2003 and to the principles of proportionality,
equal treatment and presumption of innocence;

— applied an additional amount for deterrent effect without,

however, providing sufficient reasons for that;

— imposed a fine representing 410 % of the turnover obtained

in one year by the applicant on the relevant market;

— held the parent company, Total SA, responsible for the appli-

cant's behaviour.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

Appeal brought on 19 December 2008 by Bart Nijs against
the judgment of the Civil Service Tribunal delivered on
9 October 2008 in Case F-49/06 Nijs v Court of Auditors

(Case T-567/08 P)

(2009/C 55/70)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by
F. Rollinger, lawyer)

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

Form of order sought by the appellant

— declare the appeal admissible;

— declare the appeal founded;

— accordingly, annul the order of 9 October 2008 in Case
the European

F-5/07 Bart Nijs v Court of Auditors of
Communities.

Pleas in law and main arguments

By this appeal, the applicant seeks annulment the judgment of
the Civil Service Tribunal (the Tribunal) of 9 October 2008 in
Case F-49/06 Nijs v Court of Auditors dismissing, as partially
inadmissible and partially unfounded, the action for, first, annul-
ment of the decision not to promote the applicant to grade
A*11 for the 2005 promotion procedure and, second, damages.

In support of his appeal,
grounds of appeal:

the applicant puts forward four

— distortion of the application and the reply inasmuch as the
judgment under appeal replaces a plea alleging that there
was no decision by the appointing authority,
implying a
total lack of motivation, by a completely different plea;

— disregard and/or distortion of

the evidence, the Tribunal

having excluded it;

— wrong attribution of the burden of proof inasmuch as the
Tribunal should have required proof of the defendant's alle-
gations;

— breach of the principle of the presumption of innocence
concerning the order that the appellant pay the costs at first
instance.