CELEX: C1995/137/63
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 24 February 1995 by Hedwig Kuchlenz-Winter against the Commission of the European Communities (Case T-66/95)

No C 137/26         T EN                     Official Journal of the European Communities                                        3 . 6 . 95
Action brought on 23 February 1995 by ATIC —                            1995 by Hedwig Kuchlenz-Winter, resident in Kehlen
Associagao Tecnica da Industria de Cimento against the                  ( Luxembourg ),       represented      by     Dieter      Rogalla
         Commission of the European Communities                         ( Rechtsanwalt) of Sprockhovel ( Germany), with an address
                          ( Case T-63/95 )                              for service in Luxembourg at the chambers of Armin
                                                                        Machmer, 1 Rue Roger Barthel, Luxembourg.
                            ( 95/C 137/62 )
             (Language of the case: Portuguese)                         The applicant claims that the Court should :
An action against the Commission of the European                        ( a ) declare the Commission obliged to continue covering
Communities was brought before the Court of First                             the applicant under the Joint Sickness Insurance
Instance of the European Communities on 23 February                           Scheme against the relevant risks, and should grant
1995 by ATIC — Associa^ao Tecnica da Industria de                             such declaration, pending an appropriate revision of
Cimento , whose seat is at 54/2 Avenida 5 de Outubro,                         the Staff Regulations, in the context of constructive
Lisbon, represented by Mario Joao Marques Mendes, of the                      development of the law and the exercise of discretion
Portuguese Bar, whose chambers are at 63/6 Rua Castilho,                      'extra legem ';
1250 Lisbon, with an address for service in Luxembourg at
the Chambers of Aloyse May, 31 Grand-Rue.                               ( b ) declare the Commission obliged , in relation to the Staff
                                                                              Regulations, to use its right to make proposals to the
The applicant claims that the Court should :                                  Council of the European Union in such a way as to give
                                                                              divorced spouses of officials the possibility of obtaining
— annul the Commission 's decision of 30 November 1994                        provisional cover in accordance with ( a ), to the extent
    ( IV/33.126 and 33.322 — Cement ), and specifically                       that, in the exercise of their right of freedom of
    Articles 1 , 2 ( 1 ), 2 (2 ) ( b ) and 5 thereof, so far as it            movement, they cannot be covered by any statutory
    concerns ATIC ,                                                           system of sickness provision in their country of origin
                                                                              and if they have their own entitlement to a pension
— in the alternative, reduce the fine imposed on ATIC,                        following a rights adjustment;
— oder the Commission to pay the whole of the costs.                    ( c ) in the alternative, in the context of the social provisions
                                                                              of the European treaties, including the Treaty of
Pleas in law and main arguments adduced in support:                           Maastricht, and of the Social Chapter, indicate to the
                                                                              Government of the applicant's country of origin
The application is based on the following defects, which                      ( Germany ) the gap revealed in German social law and
affect the legality of the Commission decision:                               request the Government to take appropriate action to
                                                                              close that gap, so as to ensure that persons whose social
— defects relating to the infringement of the rights of the                   rights lie not with a Member State of the European
    defence,                                                                  Communities but, as in the applicant's case, exclusively
                                                                              with Community institutions do not suffer curtailment
— defects relating to the absence of proof or the incorrect                   or even removal of their cover against sickness risks in
    assessment of the available proof in charging the                         the event of their returning to their country of
    applicant with the alleged infringements,                                 origin;
— a defect relating to the incorrect legal assessment of the
    applicability of Article 85 ( 1 ) of the EC Treaty to               ( d ) order the Commission to pay the costs.
    associations of undertakings,
                                                                        Pleas in law and main arguments adduced in support:
— a defect relating to the breach of the principle of
    proportionality in imposing the fine .
                                                                        The applicant, a former official of the Court of Justice and
                                                                        the Commission of the European Communities, and since
                                                                        1 April 1994 the divorced wife of an official of the European
                                                                        Parliament, objects to the fact that, under Article 72 ( lb ) of
                                                                        the Staff Regulations, she cannot continue to enjoy the
Action brought on 24 February 1995 by Hedwig                            benefit of the Community health care scheme after the cover
Kuchlenz-Winter against the Commission of the European                  provided for her by that Article expires on 1 April 1995 .
                             Communities
                          ( Case T-66/95 )                              Following her marriage, the applicant left the employment
                                                                        of the Communities after seven and a half years' service .
                            ( 95/C 137/63 )
                                                                        During her marriage, she enjoyed the cover of the Joint
                                                                        Sickness Insurance Scheme as the wife of an official . She
              (Language of the case: German)                            argues that, because in her native Germany she cannot be
                                                                       covered against health risks either by statutory or by private
An action against the Commission of the European                        sickness insurance, she is obliged to continue living in
Communities was brought before the Court of First                       Luxembourg after her divorce in order to avoid losing the
Instance of the European Communities on 24 February                     relevant protection.
 ---pagebreak--- 3 . 6 . 95              EN                  Official Journal of the European Communities                                No C 137/27
The applicant argues that the Community principle of                         6 . Inadequate structure of the oral hearing.
freedom of movement is thereby infringed .
                                                                             7. Reliance on self-incriminating evidence .
She also argues that that provision of the Staff Regulations
infringes the principle of equal treatment.                                  8.  Reformulation of the Commission 's case and
In the applicant's opinion, it is for the Community                              termination of proceedings against certain German
institutions to close the gap in the relevant provisions of the                  and Spanish companies .
Staff Regulations in the fulfilment of their duty of care
towards the citizen .                                                   II . Manifest errors of reasoning and interference
                                                                             The applicant expounds that the decision is based on
                                                                             the consideration that there exists a ' single and
                                                                             continuous agreement' in the west European cement
                                                                             industry. This theory, that the applicant contests, has
Action brought on 28 February 1995 by Aker SA against the                    led the Commission into errors of appreciation and
          Commission of the European Communities                             interpretation in relation to the applicant,
                          ( Case T-70/95 )                                   concerning:
                            ( 95/C 137/64 )
                                                                             1 . its supposed participation in the Cembureau
                 (Language of the case: English)                                 Agreement; and
                                                                             2 . its supposed participation in the European Task
An action against the Commission of the European                                 Force .
Communities was brought before the Court of First
Instance of the European Communities on 28 February
1995 by Aker SA represented by Mr Nicholas Forwood and                       The applicant submits that there is no basis for any
Mr John Cook with an address for service in Luxembourg at                    finding that it was guilty of behaviour capable of
the chambers of Arendt & Medernach, Boite Postale 39,                        constituting an intentional breach of Article 85 ( 1 ) of
L-2010 Luxembourg.                                                           the EC Treaty.
The applicant claims that the Court should :                           III . Lack of jurisdiction and discrimination
— annul wholly or alternatively in part the decision of the                  1 . The applicant maintains that, given that it is an
     Commission of 30 November 1994 in so far as it relates
                                                                                 undertaking established outside the European
     to the applicant,                                                           Community, the Commission was obliged to state
                                                                                 clearly in the statement of objections and in the
— cancel or, alternatively, reduce the fine imposed by                           decision the basis on which it asserted jurisdiction
     Article 9 , and
                                                                                 over it. The Commission's failure to explain its
                                                                                 position on this matter constitutes a breach of the
— award the costs of the application to the applicant.                           right to be heard and of Article 190 of the EC
                                                                                 Treaty.
Pleas in law and main arguments adduced in support:
                                                                             2 . The applicant further submits that the Commission
The grounds, on the basis of which the legality of the                           did not respect its obligation to exercise its
contested decision is challenged, can be summarized as                           jurisdiction in a uniform and non-discriminatory
follows .                                                                        manner as between all the non-EC undertakings
                                                                                 involved in the procedures .
  I. Infringements of essential procedural requirements
                                                                       IV .  Fines
       1.  Failure   to      disclose  the  full  statement     of
           objections .
                                                                             1 . The applicant emphasizes that the Commission has
       2 . Failure to translate supporting documents into the                    not established that its conduct can be regarded as
           language of the case .                                                intentional or negligent, within the meaning of
                                                                                 Article 15 ( 2 ) of Regulation 17/62 .
       3 . Inaccurate quotation from documents .
                                                                             2 . The applicant submits that the Commission has
       4 . Failure to give the applicant access to the entirety of               failed to explain the individual basis of the fine
           the Commission 's file and to other relevant files .                  against it.
       5 . Failure to disclose the responses of other addressees
           of the statement of objections .