CELEX: C1998/312/37
Language: en
Date: 1998-10-10 00:00:00
Title: Action brought on 13 July 1998 by Fratelli Murri SpA against the Commission of the European Communities (Case T-106/98)

C 312/14             EN                 Official Journal of the European Communities                                  10.10.98
accumulate initial reference quantities throughout the             with an address for service in Luxembourg at the
whole of the reference period (1989 to 1991), and were             Chambers of Claude Medernach, of Arendt &
able to do so only during the period from 3 October 1990           Medernach, 8Ð10 Rue Mathias Hardt, Luxembourg.
to 31 December 1991.
                                                                   The applicant claims that the Court should:
The applicants maintain that the organisation of the
market has had the effect of depriving them of quantities,         Ð order the defendant to pay the applicant the sum of
since it did not provide for any transitional rules which              USD 7 923 791 together with interest thereon at a rate
would have enabled third-country operators to adapt their              of 10 % from 25 September 1991,
business arrangements gradually to the organisation of the
market and to write off the investments made by them on            Ð order the defendant to pay the costs.
the basis of the quantities imported prior to the entry into
force of the organisation of the market. The applicants
were able to use only a small part of the initial reference        Pleas in law and main arguments adduced in support:
period from 1989 to 1991 in order to accumulate
reference quantities. They received far fewer import               The applicant, a property and construction company
licences than they would have received if, like all other          limited by shares and incorporated under Italian law,
third-country operators, they had had the benefit of a             alleges that it undertook work on the basis of a contract
reference period of three years.                                   entered into with the defendant for the Baardaheere
                                                                   Agricultural Experimental Station' development aid
                                                                   project launched on the basis of the Third ACP-EEC LomeÂ
The applicants complain of breach of the rights of the
                                                                   Convention for Somalia and for the execution of a project
defence, in that the Commission refused to hear the views
                                                                   under the aegis of the Sixth European Development Fund
of third-country operators unless those operators
                                                                   in Somalia.
presented their views jointly with the Community
operators and ACP operators, speaking with one voice'.
The applicants further allege a breach of the prohibition          The defendant's liability is now at issue as the
of discrimination contained in Article 40(3) of the EC             administrator of that development fund and employer of a
Treaty and breach of the principle of the protection of            member of staff answerable to it, namely its Somalia
legitimate expectations as regards third-country operators         delegate, on the ground of his unlawful conduct resulting
generally (who were given no opportunity to adapt                  in an obligation to pay damages. In spite of the unrest
themselves gradually to the drastic reduction in                   akin to civil war in 1990 and 1991, that delegate allegedly
quantities). In addition, the application to the applicants        held the applicant to its obligations under its contract
of the common organisation of the market has prejudiced            with the defendant notwithstanding the grave concerns
their freedom to engage in commercial activities. Finally,         voiced by the applicant about remaining in the country
the applicants plead infringement of the decision of the           any longer. Further, the delegate even urged the applicant
Dispute Settlement Body of the World Trade Organisation            that it should maintain and oversee the works which had
(WTO), according to which essential provisions of the              been constructed for a period of at least two months
common organisation of the market, in particular the               beyond the performance of the contract. The applicant
system of licences established by it, are incompatible with        notified the defendant in writing as long ago as 1991 of
the General Agreement on Tariffs and Trade and the                 resultant claims for compensation particularly since the
General Agreement on Trade in Services. Consequently,              applicant had incurred damage in the total amount of
the Community is liable to compensate the applicants by            USD 7 923 791 as a result of warlike acts committed by
placing them in the position which they would haved                the guerillas (destruction and theft of plant and equipment
occupied if the common organisation of the market, which           and plundering and wreaking devastation at the head
is contrary to the WTO rules, had never entered into               office and workshops) and the associated costs
force.                                                             (evacuation costs, claims for compensation from foreign
                                                                   staff, etc.).
                                                                   The applicant considers the fact that the defendant's
                                                                   delegate repeatedly ordered that the contract be performed
                                                                   and the project maintained and overseen, notwithstanding
                                                                   the foreseeability of the disintegration of Somalia's State
Action brought on 13 July 1998 by Fratelli Murri SpA
                                                                   structures, to amount to unlawful conduct attributable to
   against the Commission of the European Communities
                                                                   the defendant. It alleges that the delegate, who was aware
                      (Case T-106/98)                              of that situation although he may have failed to make a
                       (98/C 312/37)                               correct assessment of how it would develop, did not give
                                                                   permission for the works to be prematurely terminated
                                                                   and the machines and equipment to be removed from the
               (Language of the case: German)                      country in time. Consequently there was a breach of the
                                                                   principle of proportionality. If the delegate had properly
An action against the Commission of the European                   and fairly weighed up the interests of the parties, he
Communities was brought before the Court of First                  would Ð not least as a result of the applicant's repeated
Instance of the European Communities on 13 July 1998               express warnings as to the dangerousness of the situation
by Fratelli Murri SpA, Rome (Italy), represented by Karl-          Ð have seen that the development aid project was not
Gustav von Luschka, Rechtsanwalt, Plauen (Germany),                secure in the long term and so was doomed. Instead, the
 ---pagebreak--- 10.10.98              EN                 Official Journal of the European Communities                                  C 312/15
orders issued by the delegate resulted in a contract which          a breach of the confidentiality of medical information,
had, in terms of achieving its goal Ð namely, development           which is an absolute requirement and a matter of public
aid for Somalia Ð plainly become wholly obsolete, being             policy.
forcibly performed. Yet the applicant's assets could have
been preserved by an immediate withdrawal from                      Lastly, the appointing authority has failed to comply with
Somalia.                                                            the mandatory time limits laid down in Article 7 of the
                                                                    rules on disciplinary proceedings: the imposition of a
                                                                    disciplinary measure three and a half years after the
                                                                    disciplinary proceedings were commenced represents a
                                                                    manifest failure to respect any reasonable time limit. In
                                                                    view of that failure, it is no longer possible for any
Action brought on 20 July 1998 by AndreÂ van Meuter                 disciplinary measure to be taken and the disciplinary
  against the Commission of the European Communities                proceedings must be closed.
                       (Case T-109/98)
                        (98/C 312/38)
               (Language of the case: French)
An action against the Commission of the European                    Action brought on 23 July 1998 by Mannesmannröhren-
Communities was brought before the Court of First                   Werke AG against the Commission of the European
Instance of the European Communities on 20 July 1998                                          Communities
by AndreÂ van Meuter, residing in Brussels, represented by                                 (Case T-112/98)
Olivier Eben and Jean-Marc Bievez, of the Brussels Bar,                                      (98/C 312/39)
with an address for service in Luxembourg at the
Chambers of Jean Tonnar, 29 Rue du FosseÂ, Esch-sur-                               (Language of the case: German)
Alzette.
                                                                    An action against the Commission of the European
The applicant claims that the Court should:                         Communities was brought before the Court of First
                                                                    Instance of the European Communities on 23 July 1998
Ð annul the disciplinary measure taken by the appointing            by Mannesmannröhren-Werke AG, whose registered office
    authority on 10 October 1997, by which the applicant            is in Mülheim an der Ruhr (Germany), represented by
    was downgraded from grade D 1, step 8, to grade D 2,            Bruckhaus Westrick Heller Löber, Rechtsanwälte, Düssel-
    step 8, and order that he be reinstated in his former           dorf, with an address for service in Luxembourg at the
    grade,                                                          Chambers of Bonn and Schmitt, 7 Val Ste Croix.
Ð order that the disciplinary proceedings against the               The applicant claims that the Court should:
    applicant be closed,
                                                                    Ð annul Commission Decision C(98) 1204 of 15 May
Ð order that no other disciplinary measure be taken                      1998 in its entirety,
    against the applicant,
                                                                    Ð in the alternative, annul Article 2 of the decision,
Ð order the Commission to pay all of the costs.
                                                                    Ð order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
By the contested decision, the appointing authority
decided to impose on the applicant, with effect from                In the course of an investigation to ascertain alleged
1 November 1997, the disciplinary measure of                        infringements by steel pipe producers of Article 85 of the
downgrading from grade D 1, step 8, to grade D 2, step 8,           EC Treaty, the Commission addressed the contested
on the grounds that the applicant had failed to comply              decision to the defendant, requiring it to provide the
with his obligation to undergo a medical examination, as            information specified in the schedule to the decision
he had undertaken to do, and that he had not lived up to            within 30 days or pay a default fine of ECU 1 000 per day
the trust which the appointing authority had placed in              in the event of non-compliance.
him.
                                                                    The applicant complains that the Commission did not
According to the applicant, he cannot be downgraded.                allow it a sufficient hearing before issuing the decision.
Despite the excellent staff reports drawn up in relation to         There was thus a lack of any proper preliminary
him, and despite his having passed a competition, he has            procedure, contrary to Article 11(5) in conjunction with
never been promoted. Downgrading means that the                     Article 16(2) of Regulation 17. The Commission further
applicant has been penalised twice on the basis of the              failed to make available to the applicant in an appropriate
same facts, the first penalty being his non-promotion.              manner those documents which it used in issuing a
                                                                    decision causing lasting prejudice to the applicant, and
Moreover, to impose a disciplinary measure without                  upon which it based that decision. The principles in the
making the applicant's medical file available to him                Solvay (1) and ICI (2) cases were thereby infringed. The
constitutes a violation of the rights of the defence. The           applicant also complains of a breach of Article 190 of the
fact that details of the applicant's state of health were           EC Treaty in that the formal statement of reasons for the
revealed to the appointing authority represents, a fortiori,        decision does not explain why it was necessary.