CELEX: C1996/269/38
Language: en
Date: 1996-09-14 00:00:00
Title: Appeal brought on 23 July 1996 by the Council of the European Union against the judgment delivered on 26 June 1996 by the Second Chamber of the Court of First Instance of the European Communities in Case T-91/95 between L. de Nil and C. Impens and the Council of the European Union (Case C-259/96 P)

No C 269/ 18              EN                  Official Journal of the European Communities                                        14 . 9 . 96
2 . For the purposes of Article 119 does 'discrimination                 — uphold the contentions put forward by the European
       based on sex ' include discrimination based on the                    Parliament at first instance, namely that the Court
       employee 's sexual orientation ?                                      should :
3 . For the purpose of Article 119 , does ' discrimination                  — dismiss the application,
       based on sex' include discrimination based on the sex of
       that employee 's partner ?                                           — make an appropriate order as to costs ,
4 . If the answer to question 1 is yes, does an employee, to                     and
       whom such concessions are refused, enjoy a directly
       enforceable community right against his employer ?
                                                                         — as regards the proceedings before the Court of Justice,
                                                                             also make an appropriate order as to costs .
5 . Is such a refusal contrary to the provisions of Council
       Directive 76/207/EEC ( 2 )?
                                                                         Pleas in law and main arguments adduced in support:
6 . Is it open to an employer to justify such refusal if he can
       show ( a ) that the purpose of the concessions in question        — Inadmissibility of the ground of annulment of the Court
       is to confer benefits on married partners or partners in              of First Instance : the ground of annulment based on the
       an equivalent position to married partners and ( b ) that             formal difference between Competitions No PE/LA/91
       relationships between same-sex cohabiting partners                    and No PE/161 /LA was never relied on by the applicant
       have not traditionally been, and are not generally,                   at first instance . It would at least be illogical to prohibit
       regarded by society as equivalent to marriage, rather                 the applicant from putting forward new grounds during
       than on the basis of an economic or organizational                    the proceedings while allowing the Court of First
       reason relating to the employment in question ?                       Instance to do so of its own motion .
(') Council Directive 75/ 117/EEC of 10 February 1975 on the
      approximation of the laws of the Member States relating to the     — Absence of an act adversely affecting the official and lack
      application of the principle of equal pay for men and women            of legal interest in bringing the action : the official
      ( OJ No L 45 , 19 . 2 . 1975 , p. 19 ).                                submitted his candidature only for Competition No
( 2 ) Council Directive 76/207/EEC of 9 February 1976 on the                 PE/LA/91 . It would be no less than surprising if a notice
      implementation of the principle of equal treatment for men and         of competition for which the potential candiate did not
      women as regards access to employment, vocational training             in fact apply were to be considered to be an act adversely
      and promotion , and working conditions ( Of No L 39 , 14 . 2 .         affecting him . It is hard to understand how, in the
      1976 , p. 40 ).                                                        present case , a competition for which the applicant at
                                                                             first instance did not submit his candidature, although
                                                                             he was fully able to do so since he fulfilled all the
                                                                             requirements for acceptance , could in any way affect his
                                                                             legal situation .
Appeal brought on 22 July 1996 by the European
Parliament against the judgment delivered on 22 May 1996                 — Lack of repercussion of the differences between the two
by the Second Chamber of the Court of First Instance of the                  notices on the review of Mr Gutierrez Quijano's
European Communities in Case T-140/94 between Enrique                        application or on the selection of the candidates
Gutierrez de Quijano y Llorens and the European                              eventually accepted .
                                 Parliament
                          ( Case C-252/96 P )
                              ( 96/C 269/37 )
An appeal against the judgment delivered on 22 May 1996
by the Second Chamber of the Court of First Instance of the
European Communities in Case T-140/94 between Enrique                    Appeal brought on 23 July 1996 by the Council of the
Gutierrez de Quijano y Llorens and the European                          European Union against the judgment delivered on 26 June
Parliament was brought before the Court of Justice of the                1996 by the Second Chamber of the Court of First Instance
European Communities on 22 July 1996 by the European                     of the European Communities in Case T-91/95 between
Parliament, represented by Manfred Peter , Head of                       L. de Nil and C. Impens and the Council of the European
Division, and Jose Luis Rufas Quintana , of its Legal Service,                                           Union
with an address for service in Luxembourg at the Secretariat                                     ( Case C-259/96 P )
of the European Parliament .
                                                                                                    ( 96/C 269/38 )
The applicant claims that the Court should :
                                                                         An appeal against the judgment delivered on 26 June 1996
— set aside the judgment in Case T-140/94 Enrique                        by the Second Chamber of the Court of First Instance of the
        Gutiérrez de Quijano y Llorens v . Parliament (1 996 ),          European Communities in Case T-91 /95 between L. de Nil
 ---pagebreak--- 14. 9 . 96         I EN 1                Official Journal of the European Communities                                  No C 269/ 19
and C. Impens and the Council of the European Union was             — Absence of the conditions necessary in law for liability to
brought before the Court of Justice of the European                      arise and, in the alternative, breach of the principle of
Communities on 23 July 1996 by the Council of the                        proportionality.
European Union , represented by Jean-Paul Jacqué, Diego
Canga Fano and Therese Blanchet, with an address for                (') Case C-412/92 P Parliament v . Meskens [ 1994 ] ECR I ,
service in Luxembourg at the offices of B. Eynard, European              p . 3757 .
Investment Bank .
The appellant claims that the Court should :
— annul the judgment given by the Court of First Instance           Reference for a preliminary ruling by the Corte d'Appello
                                                                    ( Sezione Prima Civile ), Venice, by order of that court of
    on 26 June 1996 in Case T-91 /95 de Nil and Impens v.
                                                                    9 May 1996, in the case of Conserchimica SRL v.
    Council of the European Union,                                             Amministrazione delle Finanze dello Stato
— give judgment upholding the claims put forward by the                                       Case C-261 /96 )
    Council at first instance, that is to say :                                                ( 96/C 269/39 )
    — dismiss the application and the claims for                    Reference has been made to the Court of Justice of the
        compensation therein ,                                      European Communities by order of the Corte d'Appello
                                                                    ( Sezione Prima Civile ) ( Court of Appeal, first Civil
    — order the applicants before the Court of First                Division ), Venice, of 9 May 1 996, which was received at the
        Instance to pay the costs of those proceedings,             Court Registry on 24 July 1996 , for a preliminary ruling in
                                                                    the case of Conserchimica SRL v. Amministrazione delle
— make an appropriate order as regards the costs before             Finanze dello Stato on the following question :
    the Court of Justice.
                                                                    Does Article 2 of Council Regulation ( EEC ) No 1 697/79 ( 1 )
                                                                    of 24 July 1 979 , which prescribes a three-year period for the
Pleas in law and main arguments adduced in support:                 recovery of duties not collected , also apply to situations
                                                                    where the conditions were satisfied before 1 July 1980, the
— Infringement of Article 176 of the EC Treaty : the                date on which that Regulation entered into force pursuant
    approach adopted by the Court of First Instance,                to Article 11 thereof ?
    consisting, on the one hand, in noting that the
    Community judicature may not determine the measures             (M OJ No L 197, 3 . 8 . 1979 , p . 1 .
    required to comply with a judgment and, on the other
    hand , in specifying after the event the measures that it
    considers the Council could have provided for, is
    contradictory in law . That approach affectively negates
    the case-law on the institutions ' discretion to determine
    the measures necessary to comply with a judgment.               Reference for a preliminary ruling from the Sozialgericht
                                                                    Aachen — 13th Chamber — by order of that court of
                                                                    24 July 1996 in the case of Sema Sürül v. Bundesanstalt für
— Infringement of Article 30 of the Staff Regulations : the
    Council organized a new competition, B/228a , in                                         Arbeit, Nürnberg
    accordance with the solution suggested in the judgment                                   ( Case C-262/96 )
    in Parliament v. Meskens ('), and the Court of First                                        ( 96/C 269/40 )
    Instance commits an error of law when it regards
    Competition B/228a as re-opening Competition                     Reference has been made to the Court of Justice of the
    B/228 .
                                                                     European Communities by order of the Thirteenth
                                                                     Chamber of the Sozialgericht ( Social Court ) Aachen of
— Breach of the principle of equal treatment: reclassifying          24 July 1996 , which was received at the Court Registry on
    the successful candidates in Competition B/228a with             26 July 1996 , for a preliminary ruling in the case of Sema
    effect from the same date as those in Competition B/228 ,        Sürül v. Bundesanstalt für Arbeit Nürnberg ( Federal
    as required by the contested judgment, would amount to           Employment Office, Nuremberg ) on the following
    treating different situations in an identical manner .           questions :
— Infringement       of   Article  45     (2)   of   the  Staff      1 . Does a Turkish national living in Germany who comes
    Regulations .                                                         within the personal scope of Article 2 of Decision
                                                                          No 3/80 of 19 September 1980 of the Association
— Infringement of Article 48 ( 2 ) of the Rules of Procedure :            Council set up pursuant to the Agreement establishing
    the Court of First Instance committed an error of law as              an Association between the European Economic
    regards the subsequent promotions of the successful                   Community and Turkey (' Decision No 3/80 '), and who
    candidates in Competiton B/228 , in that it based its                 possesses merely an Aufenthaltsbewilligung, have the
    judgment on the factual position on the date when the                 right, deriving directly from Article 3 in conjunction
    judgment was given instead of the date when the                       with Article 4 ( 1 ) ( h ) of Decision No 3/80 , to German
    application was made .                                                child benefit, in such a way that that right is conditional