CELEX: C2001/275/29
Language: en
Date: 2001-09-29 00:00:00
Title: Case T-163/01: Action brought on 17 July 2001 by Juan Pedro Pérez Escanilla against the Commission of the European Communities

C 275/14               EN                      Official Journal of the European Communities                                       29.9.2001
The applicant goes on to argue that the Commission erred in                     —     to assign to the unit in Directorate A of DG INFSO
applying Regulation (EEC) No 1191/69 of the Council (1) to                            responsible for telecommunications the duties of
the situation in this case. It submits that Combus has neither                        organising and managing the internet infrastructures
a ‘tariff obligation’ nor an ‘obligation to operate’, and that the                    which the applicant carried out in his capacity as
company does not provide a public service. The regulation is                          advisor;
not applicable to Combus and the State aid granted to Combus
does not come with the scope of that regulation.                                —     to abolish his duties as advisor;
In the contested decision, the Commission proceeded on the                      —     to transfer him in due course to another Directorate
basis that the aid for Combus is restructuring aid. Against this,                     General by way of redeployment; and
the applicant argues that the aid granted is not restructuring
aid, but rather an operating subsidy, and that at no time was a                 —     to transfer him in the interim as advisor ad personam
restructuring plan submitted for any of the three subsidies                           at Directorate A of DG INFSO.
granted in total. Further, it is a condition of the framework
provisions that aid recipients must contribute significantly to           —     annul the implied decision rejecting a number of adminis-
the restructuring programme using their own means from                          trative complaints lodged by the applicant on 4 and
external financing, and it is, according to the applicant, obvious              19 December 2000, and on 19 January 2001, against the
that Combus did not itself make any contribution.                               decisions of 1 December.
                                                                          —     order the defendant to pay the costs.
So far as Article 73 EC is concerned, the applicant submits
inter alia that neither the Member States nor the Commission
can invoke Article 73 EC in order to legitimise aid for the
transport industry or transport objectives which cannot be                Pleas in law and main arguments
regarded as being compatible with Article 87 EC.
                                                                          —     the existence in the present case of a manifest error of
The applicant concludes by arguing that the Commission has                      assessment;
infringed the principles of equal treatment and proportionality,
has failed to meet its obligation to provide reasons, and has             —     manifestly inadequate reasons for the contested acts;
committed essential procedural errors, for instance through its
use of fundamentally flawed facts in support of the decision.             —     infringement of the decision of 26 July 2000
                                                                                implementing ‘peer review’, as set out in the memor-
                                                                                andum of 13 September 2000 from the Secretary General
(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on
                                                                                to the Directors General and Heads of Service;
    action by Member States concerning the obligations inherent in
    the concept of a public service in transport by rail, road and
    inland waterway (OJ, English Special Edition 1969(I), p. 276).        —     breach of the duty to have regard for the welfare of
                                                                                officials;
                                                                          —     infringement of Article 7(1) of the Staff Regulations.
Action brought on 12 July 2001 by Christopher Wilkin-
  son against Commission of the European Communities
                         (Case T-159/01)
                                                                          Action brought on 17 July 2001 by Juan Pedro Pérez
                                                                          Escanilla against the Commission of the European Com-
                         (2001/C 275/28)                                                               munities
                    (Language of the case: French)                                                  (Case T-163/01)
An action against the Commission of the European Communi-                                          (2001/C 275/29)
ties was brought before the Court of First Instance of the
European Communities on 12 July 2001 by Christopher
Wilkinson, residing in Brussels, represented by Marc-Albert                                   (Language of the case: French)
Lucas, lawyer.
                                                                          An action against the Commission of the European Communi-
The applicant claims that the Court should:                               ties was brought before the Court of First Instance of the
                                                                          European Communities on 17 July 2001 by Juan Pedro Pérez
—     annul the decisions of 1 December 2000 of the Director              Escanilla, residing in Brussels, represented by Jean-Noël Louis
      General of DG INFSO:                                                and Véronique Peere, lawyers.
 ---pagebreak--- 29.9.2001             EN                       Official Journal of the European Communities                                      C 275/15
The applicant claims that the Court should:                               European Communities on 19 July 2001 by Arnaldo Lucac-
                                                                          cioni, represented by Mauro Cimino.
—     annul the decision of the Commission of 7 September
      2000 not to promote the applicant to Grade A4 in the
      1999 promotions procedure;
                                                                          The applicant claims that the Court should:
—     order the Commission to pay the costs.
                                                                          —     order compensation for biological and non-material
                                                                                damage, caused by the defendant between 1967 and
                                                                                1990, irrespective of (or under) Article 73 of the Staff
Pleas in law and main arguments                                                 Regulations, as a result of the inexcusable fault of the
                                                                                institution, which thus incurs liability, inasmuch as it:
The applicant challenges the decision not to promote him to
Grade A4 in the 1999 promotions procedure.                                      —     caused continuous and culpable bodily harm to the
                                                                                      applicant, in that it obliged him to work, giving
                                                                                      untrue reassurances, in an environment contamin-
In support of his application, the applicant claims that the                          ated by asbestos, knowing full well that asbestos is
appointing authority committed a manifest error of assessment                         harmful even for persons not at risk
by comparing the circumstances of the applicant against the
average staff report results for the directorate to which he was
posted. Moreover, the decision is allegedly based on the sole                   —     deliberately attempted to harm the applicant, at the
factor that his Directorate General only had available three                          risk of killing him, which is mentioned only to
posts for promotion to Grade A4 for 1999. Since he was listed                         support the allegation of harm
4th by his Directorate General, the appointing authority
automatically and without examining his merits in comparison
with those of the other candidates eligible for promotion,                      —     deliberately attempted against the applicant’s safety
removed the applicant’s chances of being promoted in that                             at work, by seriously neglecting safety
year.
                                                                                amounting to ITL 7 000 000 000, by analogy with the
The applicant pleads:                                                           amounts ordered in respect of each of the victims
                                                                                (totalling some ITL 1 000 000 000) in the judgment in
                                                                                Case 4840/96 of 5 July 1996 delivered by the Pretura
—     infringement of Article 45 of the Staff Regulations;                      Circondariale di Torino (District Magistrate’s Court, Turin)
                                                                                and the compensation ordered for each of the victims
—     breach of the principle that officials should have reason-                of the ‘Cermis’ cable car disaster, namely
      able career prospects;                                                    ITL 4 000 000 000.
—     manifest error of assessment;
                                                                          —     order the defendant to pay the costs.
—     breach of the principle of equal treatment and non-
      discrimination.
                                                                          Pleas in law and main arguments
                                                                          The applicant in the present case, the same applicant as in
Action brought on 19 July 2001 by Arnaldo Lucaccioni                      Case T-165/95 Lucaccioni v Commission (1)? was awarded a
    against Commission of the European Communities                        rate of total permanent invalidity of 130% and was paid the
                                                                          capital at the rate of 100 % under Article 12 of the Joint Rules
                                                                          and compensation at the rate of 30 %, under Article 12 of the
                        (Case T-164/01)                                   same rules. The applicant could no longer, apparently, avail
                                                                          himself of Article 73 of the Staff Regulations, since in 1985
                        (2001/C 275/30)                                   the defendant decided that the cumulated total under the two
                                                                          articles could not exceed 100 %. The applicant now seeks
                                                                          compensation for biological and non-material damage suffered
                   (Language of the case: Italian)                        during the period from 1967 to 1990 irrespective of (or under)
                                                                          Article 73 of the Staff Regulations, attributable to the conduct
                                                                          of the defendant for the way in which it dealt with the
An action against the Commission of the European Communi-                 problems arising from the presence of asbestos in the Berlay-
ties was brought before the Court of First Instance of the                mont building.