CELEX: C2001/275/30
Language: en
Date: 2001-09-29 00:00:00
Title: Case T-164/01: Action brought on 19 July 2001 by Arnaldo Lucaccioni against Commission of the European Communities

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.
 ---pagebreak--- C 275/16               EN                     Official Journal of the European Communities                                     29.9.2001
The applicant states in that respect that, in Case C-257/98              Pleas in law and main arguments
P Lucaccioni v Commission, the damages sought were exam-
ined by the Court of Justice only in the context of the Staff
Regulations and with regard to occupational diseases. Despite
the fact that the Medical Committee’s report had given the
diagnosis date as January 1990, the Court took the view that             By its decision of 28 March 2001, the Commission ordered
payment of the compensation/interest should be dated from                the Federal Republic of Germany to recover aid totalling
April 1994, the date on which the proceedings were brought               DEM 34 978 000 from Lintra Beteiligungsholding GmbH
to a close. It is therefore evident that the Court did not take          and/or its subsidiaries, including Gothaer Fahrzeugwerke
into account the non-material and biological damage suffered             GmbH.
by the applicant and unquestionably caused by the European
Commission from September 1967 until April 1994, or at
least until November 1980, in accordance with the legal rules
currently in force, the Charter of fundamental rights of the
European Union and the Convention on Human Rights.                       Gotha Fahrzeugwerke GmbH’s main activity was in the vehicle
                                                                         construction business. The company’s assets in that area were
                                                                         transferred to the applicant. According to the applicant, the
                                                                         Commission may be acting on the assumption that the
(1) Case T-165/95 Lucaccioniv Commission [1998] ECR FP-IA-               applicant is the (partial) legal successor to Gothaer Fahr-
    203,II-67.
                                                                         zeugwerke GmbH, thereby establishing liability for repayment
                                                                         on the part of the applicant even though only assets were
                                                                         acquired.
                                                                         According to the applicant, Gothaer Fahrzeugwerk GmbH,
                                                                         which is currently in liquidation, repaid its share of the total
Action brought on 17 July 2001 by Schmitz-Gotha                          amount of aid to be repaid. If, however, that company were to
                                                                         be declared insolvent, that repayment might be called back
Fahrzeugwerke GmbH against the Commission of the
                                                                         into question and the corresponding amount partially or
                     European Communities
                                                                         wholly included in the general insolvency mass. For that
                                                                         reason, the applicant has a legal interest in Commission’s
                         (Case T-167/01)                                 decision being annulled.
                        (2001/C 275/31)
                                                                         The applicant argues that there has been an infringement of
                   (Language of the case: German)                        essential procedural requirements on account of inadequate
                                                                         reasoning for the decision, inasmuch as the Commission holds
                                                                         that the decision enables a requirement for repayment to be
                                                                         established against the applicant. The applicant submits that,
An action against the Commission of the European Communi-                if the Commission orders in a decision that aid should be
ties was brought before the Court of First Instance of the               reclaimed from certain undertakings named in that decision,
European Communities on 17 July 2001 by Schmitz-Gotha                    that decision is limited solely to those particular undertakings.
Fahrzeugwerke GmbH, Gotha (Germany), represented by                      If, however, the Commission takes the view that other, third-
Martin Matzat, Rechtsanwalt.                                             party, undertakings, which are legally independent and have
                                                                         merely had assets transferred to them, may also be held liable
                                                                         for repayment of the aid, such a view requires that those
The applicant claims that the Court should:                              undertakings be specifically named in the decision itself and
                                                                         that a detailed justification be provided as to why the factual
                                                                         requirements for such liability are present.
—     annul Commission Decision No C 41/99 (ex N 49/95) of
      28 March 2001 in so far as it holds the applicant liable
      in respect of the portion of aid due for repayment
      attributable to Gothaer Fahrzeugwerk GmbH;
                                                                         The applicant further argues that, by assuming or declaring
—     in the alternative, should the Commission’s decision not           the applicant to be liable, the Commission has infringed the
      be open to a challenge in part, annul the above decision           Treaty. It maintains, inter alia, that to hold the acquirers of
      in its entirety;                                                   assets unrestrictedly liable is not compatible with Community
                                                                         principles. In particular, such comprehensive liability infringes
                                                                         the principle of proportionality. Moreover, the claims for
—     order the Commission to pay the costs.                             repayment bore no relation to the assets taken over.