CELEX: C1995/315/34
Language: en
Date: 1995-11-25 00:00:00
Title: Action brought on 19 September 1995 by Adriaan Al and Others against the Commission of the European Communities (Case T-171/95)

25 . 11 . 95           EN                  Official Journal of the European Communities                                   No C 315/ 15
and also, in the oral procedure, by Harold Nyssens of the             1 . The application for interpretation is dismissed as
Brussels Bar, with an address for service in Luxembourg at                  inadmissible.
the Chambers of Carlos Zeyen, 67 rue Ermesinde, v.
Commission of the European Communities ( Agent: Ana                   2 . The parties are ordered to bear their own costs.
Maria Alves Vieira ) — application for the annulment of the
decisions of the Commission of 1 June 1992 , 31 December              f 1 ) OJ No C 23 , 31 . 1 . 1990 .
1992 ( implicit rejection ) and 3 March 1993 concerning the
maintenance of the applicant's personal file and certain
measures taken to assist him, and for an order requiring the
Commission to pay damages for the harm which the
applicant claims to have suffered as a result of the existence
of a separate file — the Court of First Instance ( Fourth                   ORDER OF THE COURT OF FIRST INSTANCE
Chamber ), composed of: K. Lenaerts , President, and R.
                                                                                            of 29 September 1995
Schintgen and R. Garcίa-Valdecasas, Judges; B. Pastor,
Registrar, has given a judgment on 11 October 1995 , in               in Case T-381 /94 : Sindacato Pensionati Italiani and Others
which it :                                                                         v. Council of the European Union ( J )
                                                                       (Appointment of the members of the Economic and Social
1 . Annuls the decisions of the Commission of 1 June 1992              Committee — Manifest inadmissibility — Application to
     and 3 March 1993 inasmuch as they reject the                                                        intervene)
     applicant 's request for the inclusion in his personal file                                    ( 95/C 315/33 )
      of certain documents relating to his administrative
     position and reports concerning his ability, efficiency or
      conduct.                                                                         (Language of the case: Italian)
2 . Orders the Commission to pay the applicant the sum of             In Case T-381 /94 : Sindacato Pensionati Italiani,
      Bfrs 1 00 000 as compensation for the non-material              Federazione nazionale Pensionati , Unione Italiana
      damage suffered by him .                                        Lavoratori Pensionati , represented by Massimo Severo
                                                                       Giannini and Massimo d'Antona, of the Rome Bar, and
                                                                      Mario Chiti, of the Florence Bar, with an address for service
3 . Dismisses the remainder of the action .
                                                                       in Luxembourg at the Chambers of Loesch & Wolter, 11
                                                                       Rue Goethe, against Council of the European Union
4 . Orders the Commission to pay all of the costs.                     ( Agents : Giorgio Maganza and Antonio Tanca ) —
                                                                       application for the annulment of Council Decision
 (•) OJ No C 188 , 10 . 7. 1993 and OJ No C 334, 9 . 12 . 1993 .       94/660/EC, Euratom of 26 September 1994 appointing the
                                                                       members of the Economic and Social Committee for the
                                                                       period from 21 September 1994 to 20 September 1998 ( OJ
                                                                       1 994 L 257, p. 20 ) in so far as it appoints Filippo de Jorio —
                                                                       the Court of First Instance ( Second Chamber ), composed of:
                                                                       B. Vesterdorf, President, D. P. M. Barrington and A. Saggio,
                                                                      Judges ; H. Jung, Registrar, made an order on 29 September
     ORDER OF THE COURT OF FIRST INSTANCE                               1995 , the operative part of which is as follows :
                       of 5 October 1995
                                                                        1 . The application is dismissed as inadmissible.
 in Case T-165 /89 ( 129 ): Onno Plug v. Commission of the
                   European Communities ( 1 )                          2 . The applicants shall bear their own costs and those of
                          (Interpretation)                                   the defendants.
                           ( 95/C 315/32 )
                                                                        (') OJ No C 386 , 31 . 12 . 1994 .
                 (Language of the case: French)
 In Case T-165/89 ( 129 ): Onno Plug, a former member of the
 temporary staff of the Commission of the European
  Communities ,      residing     at   Thonex      ( Switzerland ),     Action brought on 19 September 1995 by Adriaan A1 and
 represented by Georges Vandersanden, of the Brussels Bar,              Others against the Commission of the European
                                                                                                       Communities
 with an address for service in Luxembourg at the offices
  of Fiduciaire Myson Sari , 1 Rue Glesener, v. Commission of                                     ( Case T-171 /95 )
  the European Communities ( Agent: Sean Van                                                          ( 95/C 315 /34 )
  Raepenbusch ) — application for interpretation of the
  judgment delivered by the Court of First Instance (Fourth                             (Language of the case: French)
  Chamber ) on 27 February 1992 in Case T-165/89 (( 1992 )
  ECR 11-367 ) — the Court of First Instance ( Fourth
  Chamber ) made an order on 5 October 1995 , the operative             An action against the Commission of the European
  part of which is as follows :                                         Communities was brought before the Court of First
 ---pagebreak--- No C 315/ 16           EN                    Official Journal of the European Communities                                      25 . 11 . 95
Instance of the European Communities on 19 September                          abovementioned provisions, as interpreted by case-law,
1995 by Adriaan A1 and the 99 other applicants listed in the                  that the weighting for each Member State must be fixed
Annex hereto, all residing in Germany, represented by                         with reference to the cost of living in its capital, and that
Georges Vandersanden and Laure Levi, of the Brussels Bar,                     the Council has no discretion whatever to decide
with an address for service in Luxembourg at the offices of                   whether or not measures intended to ensure the
Fiduciaire Myson Sari, 1 Rue Glesener.                                        application of that principle should have retroactive
                                                                              effect. The new weighting has been fixed to take effect
The applicants claim that the Court should :                                  only from 1 July 1994; consequently, the weighting for
                                                                              Germany in respect of the period from 3 October 1990
— annul the applicants' pension statements for December                       to 30 June 1994 has been fixed at the rate applying in
      1994, drawn up pursuant to Council Regulation
     No 3161 /94 of 19 December 1994, inasmuch as that
                                                                              relation to Bonn, that is to say, a city which is not its
                                                                              capital.
     regulation lays down a weighting for Germany at the
     rate fixed for its capital, Berlin, only with effect from
                                                                        ( b ) Breach of the principle of the protection of legitimate
      1 July 1994 and not from 3 October 1990, and, in so far                 expectations: the applicants consider that, in adopting
     as may be necessary, annul the decision of the
                                                                              Regulation ( ECSC, EC, Euratom ) No 3161/94, the
     Commission of 26 July 1995 rejecting the applicants'
                                                                              Community legislature failed to take into consideration
     complaint,                                                               the special situation of officials and servants who
— reinstate the applicants' pension rights in full, weighted                  decided, following their retirement and before 1 July
     at the rate fixed for Berlin, with effect from 3 October                 1994 , to settle in Germany and who were legitimately
      1990 ,                                                                  entitled to expect that it would adopt the measures
                                                                              necessary to comply with the judgment of the Court of
— order the defendant to pay default interest on the                          First Instance of 27 October 1994 in Case T-536/93 , in
     pension arrears for the period from 3 October 1990 to                    which a regulation fixing the weighting for Germany at
     30 June 1994, calculated in relation to the same period,                 a rate other than that of its capital, Berlin, was held to
     at the annual rate of 10% ,                                              be unlawful .
— order the defendant to pay all of the costs .
                                                                        ( c ) Infringement of Article 190 of the EC Treaty: the
Pleas in law and main arguments adduced in support:                           applicants consider that the statement of reasons for
                                                                              Regulation ( ECSC, EC, Euratom) No 3161 /94 is
The applicants state that the contested pension statements                    neither adequate nor correct as regards the fixing of the
are the first to have been drawn up pursuant to Council                       weighting for Germany at the rate applicable to its
Regulation ( ECSC, EC, Euratom ) No 3161 of 19 December                       capital .
1994 adjusting, with effect from 1 July 1994, the
remuneration and pensions of officials and other servants of
                                                                        The applicants further maintain that, by failing to ensure
the European Communities and the weightings applied                     that the calculation of the weighting for Germany was fixed,
thereto. They maintain that that Regulation is vitiated by              in accordance with the Staff Regulations, at the rate
illegality, in that Article 6 ( 1 ) thereof applies the weighting       applicable to its capital, Berlin, the defendant disregarded its
for Germany at the rate fixed for its capital, Berlin, with             duty to have regard for the welfare and interests of officials .
effect from 1 July 1994 and not from 3 October 1990, when               They also point out that the Commission has not brought
Berlin became the capital of Germany.                                   proceedings for the annulment of the Regulation at issue ,
The applicants rely on the following pleas in support of their          despite its manifest illegality, and has thus failed to perform
objection of illegality:                                                its task of ensuring compliance with Community law; where
                                                                        the unlawful role of secondary legislation is addressed to
( a ) Infringement of Articles 63 to 65a of the Staff                   officials and servants, that task also falls within the scope of
       Regulations of officials and of Annex XI thereto:                the duty to have regard for the welfare and interests of
       according to the applicants, it is apparent from the             officials .
 ---pagebreak--- 25 . 11 . 95         EN                Official Journal of the European Communities                         No C 315/ 17
                                                            ANNEX
                                                        Case T-171 /95
                                                       List of applicants
             Adriaan Al                                                   Horst Kutter
             Wolfgang Balzer                                              Heinz Lehnefinke
             Artin Barth                                                  Hans Lehnoch
             Rolf Bauch                                                   Egon Lessle
             Ingrid Becker                                                Friedrich Maino
             Irmgard Bering                                               Robert Mandler
             Heinrich  Beulke                                             Nikolaus Mayer
             Gerhard   Birkhoff                                           Josef Merfels
             Gerhard   Bittner                                            Karl H. Meyer-Uhlenried
             Heinrich  Blenkers                                           Karl Moos
             Josef Bohdansky                                              Peter Mörk-Mörkenstein
             Ulrich Bruns-Wüstefeld                                       Derek Murphy
             Manfred Caspari                                              Jürgen Nickel
             Roger de Meester                                             Hermann Ollenhauer
             Klaas Deelstra                                               Siegfried Pätzold
             Robert Eberhard                                              Klaus G. Pingel
             Josef Eder                                                   Eva Presser
             A. Peter Eisenmenger                                         Albert Reinhardt
             Heia Emde-Klinkenberg                                        Rudolf Resch
             Bernhard Eschment                                            Willi L. Riebold
             Annelies Fiehn                                               Gerhard Ruffer
             Ernst A. Findorff                                            Bernhard Schelten-Petersen
             Margit Fischer                                               Erhard Schleicher
             Johann Gay                                                   Helmut Schmeichler
             Monique Genevois-Rossbach                                    Guenter Schmidt
             Karl-Heinz Günther                                           Heinrich Schöne
             Horst Günther                                                Lily Schuerer
             Friedrich W. A. Habermann                                    Willi Schupp
             Richard Häckel                                               Wilhelm Schwarz
             Ernst Hampe                                                  Karl Seger
             Heinrich Hark                                                Horst Siebel
             Ursula Hartte                                                Heinz Stangl
             Wilhelmine Heidweiler-Scheffelaar                            Wolfgang Stephan
             Ingeborg Hentel                                              Helmut Stern ~
             Georg-Wilhelm Henze                                          Hermann Stirm
             Karl Heinz Hettinger                                         Felicitas Stottrop
             Peter Hochgrassl                                             Hans Thoma
             Hortense Hoffmann                                            Hans . J. Vogt
             Hella Hopf-Barufke                                           Christiane von Brandenstein-Groll
             Werner Jedamzik                                              Astrid von Hardenberg
             Norbert Kalthoff                                             Hans-Ludolf von Kotze
             Anna-Maria Kleinsimon                                        Ursula von Riedel
             Reinhard Klötzer                                             Joachim Wedel
             Walter Konrad                                                Peter Weisgerber
             Ernst Kotzur                                                 Werner Wenz
             Hans-Broder Krohn                                            Hans J. Wetekam
             Kurt Kühner                                                  Erika Winterer-Müller
             Karl Kujath                                                  Hermann Wundt
             Toni Kummer                                                  Walter Zilly
             Siegfried Kumpf                                              Horst Zöllner