CELEX: C1995/159/53
Language: en
Date: 1995-06-24 00:00:00
Title: Action brought on 5 April 1995 by Didier Gambier against the Commission of the European Communities (Case T-95/95)

24 . 6 . 95              EN                  Official Journal of the European Communities                                 No C 159/25
      development of rural areas in the Veneto Region' in so                    following the prior adjudication procedure under
      far as it concerns the 'measure ', contained in                           Article 8 of Decision No C(91 ) 1725 , adopted pursuant
      ' subprogramme 2 — Development of other economic                          to the framework Regulations (EEC ) No 2052/88 (2 )
      sectors and services ', entitled 'Measure 1 — Heading                     and ( EEC ) No 4253/88 ;
      1.10 : Reactivation of the former " GIBO " factory at
      Montagnana as the location for new activities and a               (c ) infringement of Article 14 ( 3 ) of Regulation ( EEC )
      service centre',                                                          No 4253/88 , and misuse of powers through failure to
                                                                                investigate and to state reasons : the proposal of the
— annul Commission Decision No C(93 ) 3752 of
                                                                                Veneto Region concerning Zaico SpA completely
                                                                                lacked the administrative mechanisms essential for
      9 December 1993 ( not published ) to the extent that it
                                                                                ensuring the effectiveness of the initiative . It follows
      increases the amount of Community financing for
                                                                                that the absence of any details in the programme as to
      Objective 5 (b ) of the Operational programme in
                                                                                how the financing was to be used should have
      relation to the measure contained in ' Subprogramme 2
      — Development of other economic sectors and services ',
                                                                                prevented the Commission from granting the aid
                                                                                requested .
      entitled 'Measure 1 — Heading 1.10 : Reactivation of the
      former " GIBO " factory at Montagnana as the location
      for new activities and a service centre ',                        Finally, the applicant argues that the measures in question
                                                                        conflict with Articles 52 and 59 of the EC Treaty, the
— annul all other measures connected therewith and/or                   freedom of establishment and the freedom to provide
                                                                        services .
      resulting therefrom, and order the Commission to pay
      the costs .
                                                                        (M OJ No L 374 , 31 . 12 . 1988 , p . 1 .
                                                                        ( 2 ) OJ No L 185 , 15 . 7 . 1988 , p . 9 .
Pleas in law and main arguments adduced in support:
The applicant is the owner of a small to medium-sized
business in the Veneto Region, which carries on production
in the former ' GIBO' factory, which is situated in the
industrial and small trades estate of the Commune of
Montagnana , and which it occupies as tenant. He challenges             Action brought on 5 April 1995 by Didier Gambier against
the above Decisions in so far as they establish a financial                      the Commission of the European Communities
instrument, by way of contribution from the European                                               ( Case T-95/95 )
Regional Development Fund , for a project to reclaim,
                                                                                                     ( 95/C 159/53 )
rebuild and reuse the former ' GIBO ' kitchen factory, such
action being necessary, according to the Commission,
because the building had been dismantled in 1963 and not                                  (Language of the case: Frencb)
been rebuilt since .
                                                                        An action against the Commission of the European
The applicant alleges:                                                  Communities was brought before the Court of First
                                                                        Instance of the European Communities on 5 April 1995 by
                                                                        Didier Gambier, residing at San Diego (United States of
( a ) infringement of Article 14 ( 3 ) of Regulation ( EEC )            America ), represented by Marc-Albert Lucas, of the Liège
        No 4253/88 (*), erroneous assessment of the facts, and          Bar, with an address for service in Luxembourg at the
        misuse of powers through failure to investigate and to          Chambers of Evelyne Korn, 21 Rue de Nassau.
        state reasons: the Commission incorrectly ascertained
        the essential facts concerning the financial instrument it
        has approved . The former ' GIBO ' factory cannot be           The applicant claims that the Court should :
        said to have been dismantled in 1963 and not rebuilt
        since, given that the applicant carries on his business        — annul the decision of the Commission to reassign the
        inside the building, and that machines , administrative               applicant to the Commission, bringing to an end his
        offices and areas equipped for staff and materials are                secondment to ITER ( International Thermonculear
        situated there;                                                       Experimental Reactor ),
( b ) infringement of the Community provisions on public               — declare unlawful the decision not to take steps in order
        contracts : the contested decision is in serious and                  to remedy the applicant's situation following the entry
        manifest breach of Community rules, the Commission                    into office of a new Director of the ITER project, with all
        having thereby effectively endorsed a particular                      the legal consequences that such a declaration entails,
        internal ( and regional ) administrative practice, which
        freely attributes the execution of public works to             — order the Commission to pay to him, in respect of the
        private persons, in this case Zaico SpA, without                      first contested decision(s ), compensation in the amount
 ---pagebreak--- No C 159/26           EN                  Official Journal of the European Communities                                      24 . 6 . 95
     of one-third of his basic salary between 5 January 1 995        Action brought on 6 April 1995 by Sinochem National
     to the end of his contract ( harm to his career ) and,          Chemicals Import &t Export Corporation against the
     provisionally, compensation in the amount of Bfr 1 ,                              Council of the European Union
     subject to increase (harm to family life ),                                               ( Case T-97/95 )
                                                                                                 ( 95/C 159/54 )
— order the Commission to pay to him, in respect of the
     second contested decision, compensation in the amount
     of Bfrs 1 000 000,                                                                 (Language of the case: Englisb)
— order the Commission to pay the costs .                            An action against the Council of the European Union was
                                                                     brought before the Court of First Instance of the European
                                                                     Communities on 6 April 1995 by Sinochem National
Pleas in law and main arguments adduced in support:                  Chemicals Import & Export Corporation, represented by
                                                                     Mr Jean-François Bellis, with an address for service in
The applicant explains that he was engaged from 1 April              Luxembourg at the Chambers of Loesch & Wolter, 1 1 Rue
1 993 by Directorate-General XII, Fusion Programme, of the           Goethe, L-1637 Luxembourg.
Commission as a member of the temporary staff
(Article 2 ( d ) of the Conditions of Employment of other
                                                                     The applicant claims that the Court should :
Servants of the Communities ) and assigned to the ITER
( International Thermonuclear Experimental Reactor )
project as a member of the Director's Office at the centre           — annul the definitive anti-dumping duty on imports of
located at the University of San Diego . In July 1994 a new                furfuraldehyde originating in the People's Republic of
Project Director was appointed with immediate effect. From                 China, imposed by Council Regulation ( EC )
that time the applicant was excluded from what had been his                No 95/95 O ,
usual duties . At the beginning of January 1 995 the applicant
was informed by the Fusion Programme Director at DG XII              — annul the Council's decision to reject the undertaking
that he had been recalled to Europe for reasons to do with                 proposed by the applicant,
the service; as a new posting he was offered a post as
physicist at the JET laboratory where he had been Assistant
                                                                     — order the Council to bear the costs .
Director and Project Head before being posetd to ITER . The
return date was fixed at 15 April 1995 despite the fact that
the applicant had requested for a later date to be accepted
                                                                     Pleas in law and main arguments adduced in support:
for personal and family reasons .
                                                                     The grounds on the basis of which the legality of the
As regards the decision to reassign him to the Commission,           contested decision is challenged can be summarized as
the applicant pleads, first, infringement of Articles 4.3 and        follows :
4.4 of the agreement on the secondment of staff between the
EAEC and the University of San Diego and abuse of process .
He also pleads error of assessment or defective factual              ( a ) The proceeding was initiated in breach of Articles 5 ( 2 )
grounds and misuse of powers . Finally, the applicant                       and 7 ( 1 ) of Regulation ( EEC ) No 2423/88 inasmuch as
maintains that the Commission has failed in various ways to                 it concerns all imports of furfuraldehyde from the
comply with its duty to have regard for the welfare of                      People's Republic of China, whether used for the
officials .                                                                 cleaning of lubricating oils or in the manufacture of
                                                                            furfuryl alcohol, whilst the only alleged evidence of
                                                                            injury presented in the complaint and the notice of
As regards the Commission's failure to take steps, as it                    initiation of the proceeding only concerns
should have done, to remedy the situation which was                         furfuraldehyde for use in the cleaning of lubricating
detrimental to him since the entry into office of the new                   oils .
Director, the applicant considers that the institution should
have initiated the procedures provided for in Article 9 of the
abovementioned secondment agreement in the event of                  ( b ) The anti-dumping duty infringes Article 2 ( 1 ) of
disputes between the Director and a member of staff on                      Regulation ( EEC ) No 2423/88 and also the principle of
secondment .                                                                proportionality as it covers all imports of
                                                                            furfuraldehyde whilst the injury determination is based
                                                                            on the finding that injury has been caused only with
As regards the claims for damages, the applicant states that                respect to furfuraldehyde for use in the cleaning of
the contested decisions are unlawful and that they also                     lubricating oils, which accounts for a minority of
constitute service-related faults which have caused him                     European Union consumption.
obvious and indisputable material and non-material
damage.
                                                                     (c ) The finding that injury has been caused by imports
                                                                            from the PRC in the market for furfuraldehyde used for
                                                                            the cleaning of lubricating oils is vitiated by
                                                                            fundamental contradictions .