CELEX: C1998/258/32
Language: en
Date: 1998-08-15 00:00:00
Title: Appeal brought on 19 May 1998 by Georges Tzoano against the judgment delivered on 19 March 1998 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-74/96 between Georges Tzoano and the Commission of the European Communities (Case C-191/98 P)

15.8.98                EN                Official Journal of the European Communities                                     C 258/19
(2) set aside the judgment delivered on 19 March 1998 by                Commission and supplements the grounds for the
    the Court of First Instance in Case T-83/96 and,                    Commission's refusal, without the appellant having
    adjudicating afresh in the matter, annul the decision of            been able to put forward any argument in fact or in
    29 March 1996 addressed by the Commission to the                    law concerning that point.
    appellant;
                                                                    (1) OJ C 137 of 2.5.1998, p. 14.
(3) order the Commission of the European Communities                (2) OJ L 46 of 18.2.1994, p. 58.
    to pay the costs, including the costs of the proceedings
    at first instance.
Pleas in law and main arguments adduced in support:
Ð Infringement of Commission Decision 94/90/ECSC,                   Appeal brought on 19 May 1998 by Georges Tzoano
    EC, Euratom on public access to Commission                      against the judgment delivered on 19 March 1998 by the
    documents (2):                                                  Fourth Chamber of the Court of First Instance of the
                                                                    European Communities in Case T-74/96 between Georges
                                                                    Tzoano and the Commission of the European
    Ð The Court of First Instance failed to have regard
                                                                                              Communities
         to the rule, based on Decision 94/90, requiring the
         Commission, before denying access to any                                         (Case C-191/98 P)
         document, to show that, by reason of the
                                                                                             (98/C 258/32)
         information which it contains, its dissemination
         may cause actual prejudice to the public interest,
         which is protected by the first category of
         exceptions in Decision 94/90.                              An appeal against the judgment delivered on 19 March
                                                                    1998 by the Fourth Chamber of the Court of First
    Ð By applying, for the purposes of deciding whether             Instance of the European Communities in Case T-74/96
         to grant access to the Commission documents                between Georges Tzoano and the Commission of the
         concerned, the criterion of the addressee(s) of            European Communities was brought before the Court of
         those documents Ð in the present case, the                 Justice of the European Communities on 19 May 1998 by
         national courts to which the letters in question           Georges Tzoano, represented by Eric Boigelot, of the
         were sent Ð the Court of First Instance infringed          Brussels Bar, with an address for service in Luxembourg at
         the provisions and objectives of Decision 94/90.           the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.
    Ð Neither Decision 94/90 nor any other rule of law              The appellant claims that the Court should:
         provides any support for the view expressed by the
         Court of First Instance that the exception
         concerning protection of the public interest (more         (a) set aside the contested judgment (1);
         particularly: court proceedings') is designed to
         ensure general respect for the principle of the
         procedural autonomy of courts and that the scope           (b) itself adjudicate on the dispute and allow the
         of that exception is therefore not restricted solely           appellant's initial application:
         to the protection of the interests of the parties but
         encompasses the procedural autonomy of national
                                                                        Ð annul the respondent's decision of 22 June 1995
         and Community courts.
                                                                             removing the appellant from his post without loss
                                                                             of entitlement to a retirement pension and annul
Ð Infringement of the European Convention on Human                           the decision of 19 February 1996 expressly
    Rights: the European Convention on Human rights, in                      rejecting the complaint lodged by the appellant on
    particular Article 6 thereof and the case-law relating                   21 September 1995 against the contested decision;
    thereto, provides no support for the view expressed by
    the Court of First Instance that it gives rise to the
                                                                        Ð order the respondent to pay the costs, including
    principle of procedural autonomy'. Neither the
                                                                             those relating to the proceedings at first instance.
    objective of Article 6 of the Convention nor the
    construction placed on the guarantees described in
    that article provide any legal basis for the reasoning of       Pleas in law and main arguments adduced in support:
    the Court of First Instance.
Ð Breach of the obligation to provide a statement of                Breach of Community law, in particular:
    reasons.
                                                                    Ð infringement of Article 33 of the EC Statute of the
Ð Breach of the principle of the autonomy of the parties                Court of Justice; the obligation to state the reasons on
    and of the rights of the defence: in its judgment, the              which a judgment is based is, in particular, such that
    Court of First Instance substitutes itself for the                  the grounds on which it purports to be based must be
 ---pagebreak--- C 258/20              EN                  Official Journal of the European Communities                                    15.8.98
     legally permissible, that is to say, adequate, not              Reference for a preliminary ruling by the Regeringsrätten
     vitiated by any error of law or of fact and not                 by order of that court of 29 April 1998 in the case of X
     contradictory;                                                             AB and Y AB against Riksskatteverket
                                                                                           (Case C-200/98)
Ð infringement of the Staff Regulations of officials of the
     European Communities, in particular Articles 12, 13,                                    (98/C 258/33)
     14 and 17, the first and second paragraphs of
     Article 21, Article 25, the second paragraph of
     Article 87 and the fifth paragraph of Article 88 thereof
     and Annex IX thereto, in particular Articles 1, 2 and           Reference has been made to the Court of Justice of the
     3, the second paragraph of Article 7 and Article 11 of          European Communities by order of 29 April 1998,
     that annex;                                                     received at the Court Registry on 22 May 1998, for a
                                                                     preliminary ruling in the case of X AB and Y AB against
Ð breach of the general principles applicable under                  Riksskatteverket on the following question:
     Community law, in particular the principle of the
     rights of the defence, the audi alteram partem rule, the
     principle that the court seised of the proceedings must
     be impartial (and Article 6 of the Convention on                Under Paragraph 2(3) of Law 1947:576 on State Income
     Human Rights), the principles of legal certainty, good          Tax, an intra-group transfer is treated, under certain
     faith and the protection of legitimate expectations, the        conditions, as having fiscal effect if it is made by a
     duty to have regard for the welfare and interests of            Swedish limited liability company to another Swedish
     officials and the principle that all administrative acts        limited liability company which is wholly owned either by
     must be based on legally permissible grounds, that is           the first-named company directly or by that company
     to say, grounds which are pertinent and not vitiated by         together with a wholly-owned Swedish subsidiary or
     any error of law or of fact.                                    subsidiaries. The fiscal result is the same if one, or more,
                                                                     of the wholly-owned subsidiaries is foreign provided it is
                                                                     established, or they are established, in one and the same
The contested judgment applies a restrictive interpretation          Member State and Sweden has concluded with that State a
to the fifth paragraph of Article 88 of the Staff                    double-taxation      agreement       containing    a    non-
Regulations of officials; the object of that provision is to         discrimination clause. Against that background, is it
ensure that the administrative authority charged with                compatible with existing Community law, in particular
investigating the matter and thereafter, as the case may be,         Article 52 in combination with Article 58 and Article 73b
with imposing a disciplinary measure is fully informed of            and d of the Treaty of Rome, to apply a set of rules under
the facts alleged against the official concerned which form          which an intra-group transfer is not treated as having the
the subject-matter of the criminal prosecution brought               same fiscal effect when the Swedish parent company
against him.                                                         instead owns the recipient company together with two or
                                                                     more wholly-owned foreign subsidiaries which are
The appellant also complains that the Court of First                 established in different Member States with which Sweden
Instance based its contested judgment on incorrect                   has concluded a double-taxation agreement containing a
considerations and reasons which were contrary to the                non-discrimination clause?
items contained in the case-file. The Court of First
Instance failed in the contested judgment to arrive at the
proper factual or legal conclusions which it should have
drawn from the information in the file before it.
The contested judgment should also be annulled on the
ground that it misapplies the audi alteram partem rule, the
principle of equality of arms and the obligation to provide          Action brought on 25 May 1998 by the Commission of
a statement of pertinent reasons. Thus it wrongly                    the European Communities against the Kingdom of
concludes that the principle of equality of arms was                                            Belgium
respected on the ground that the appellant had access to                                  (Case C-201/98)
the documents which were available to the Disciplinary
Board for the purposes of delivering its opinion, on which                                   (98/C 258/34)
the appointing authority relied in adopting the contested
decision'. The Court of First Instance also wrongly based
on the same grounds its conclusion that the appellant was
given the opportunity of acquainting himself with all the
                                                                     An action against the Kingdom of Belgium was brought
facts on which the decision was based, in sufficient time
                                                                     before the Court of Justice of the European Communities
to enable him to submit his observations'.
                                                                     on 25 May 1998 by the Commission of the European
                                                                     Communities, represented by Frank Benyon, Legal
(1) Judgment of 19 March 1998 in Case T-74/96 (OJ C 137 of           Adviser, and Bernard Mongin, of its Legal Service, acting
    2.5.1998, p. 13).                                                as Agents, with an address for service in Luxembourg at
                                                                     the Office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                     Kirchberg.