CELEX: C1996/336/65
Language: en
Date: 1996-11-09 00:00:00
Title: Action brought on 18 September 1996 by Monika Kawicki against the European Parliament (Case T-145/96)

9 . 11 . 96                EN                     Official Journal of the European Communities                                  No C 336/31
were fulfilled in the present case and, therefore, that the aid              be based on a uniform assessment of all operational
provided was wholly compatible with the common                               disadvantages over a five-year period .
market .
                                                                             It was only in the light of the Commission's classification of
                                                                             Mosel II and Chemnitz II for aid purposes as new
3 . Infringements of the law and absence of reasons in the                   investments that VW initiated and carried on its investment
     application of Article 92 ( 3 ) of the EC Treaty                        plans in the form previously notified and assigned
                                                                             substantial funds of its own thereto .
Furthermore, the Commission has also infringed
Article 92 ( 3 ) of the EC Treaty, which it regards as                       Overall conclusion
applicable . Consequently, the decision should be annulled
even if it is held that Article 92 ( 2 ) ( c ) is inapplicable and that
                                                                             To sum up, the decision is therefore illegal, inasmuch as the
the compatibility of the aid should have been examined by
                                                                             aid compatible with the common market is limited in its
the Commission in the light of Article 92 ( 3 ).
                                                                             amount to the sums fixed by the Commission in the
                                                                             decision, the aid specific in Article 2 is stated to be
Since Saxony is a development region within the meaning of                   incompatible with the common market, the amount of the
Article 92 ( 3 ) ( a ) of the EC Treaty, the Commission should               aid for direct investment grants is limited by Articles 1 and
in any event have examined the compatibility of the aid                      3 ( 2 ) to DM 418,7 million and the combined effective aid
with the common market primarily in the light of                             intensity, expressed in terms of the gross subsidy equivalent,
Article 92 ( 3 ) ( a ) of the Treaty. The Commission unlawfully              is limited by Article 93 ( 2 ) to 22,3 % for Mosel II and 20,8 %
applied the second alternative in Article 92 ( 3 ) (c ) of the               for Chemnitz II .
Treaty instead of Article 92 ( 3 ) ( a ), despite the fact that
Article 92 ( 3 ) ( c ) is superseded by the latter provision and is
thus not applicable to the regional aid at issue in the present
case .
If Article 92 ( 3 ) ( a ) of the Treaty had been applied, the aid            Action brought on 18 September 1996 by Monika Kawicki
would necessarily have been found compatible with the                                       against the European Parliament
common market, without there being any need for
                                                                                                     Case T-145 /96 )
considerations relating specifically to the sector in issue .
                                                                                                      ( 96/C 336/65 )
Moreover, in applying Article 92 ( 3 ) ( c ) of the Treaty, the
Commission based its findings on a cost-benefit analysis in                                  (Language of the case: French)
which the Mosel II and Chemnitz II projects were wrongly
regarded not as wholly 'green-field' investments, despite                    An action against the European Parliament was brought
their having been treated as such over a period of several                   before the Court of First Instance of the European
years , but only in segments as investments in expansion . The               Communities on 18 September 1996 by Monika Kawicki,
Commission failed to see that, from the standpoint of                        residing in Luxembourg, represented by Marc Kleyr, of the
Volkswagen, as the investor, the typical drawbacks                           Luxembourg Bar, with an address for service in
associated with 'green-field ' investments applied . As a                    Luxembourg at his Chambers .
result of that incorrect classification, the disadvantages
which were to be offset by aid were substantially                            The applicant claims that the Court should :
underestimated .
                                                                             — annul :
4 . Breach of the principle of the protection of legitimate                       — the decision of the Invalidity Committee of
     expectations                                                                      31 January 1996
Lastly, on the basis of its previous handling of the aid                          — the decisions of the Head of the Personnel Division of
procedure in respect of the Mosel II/Chemnitz II project, in                           9 February 1996 and 7 May 1996
particular by reason of the cost-benefit analyses previously
carried out during the procedure from 1992 to 1994 , the                          — the decision of the Secretary-General of the
Commission prompted VW to entertain expectations                                       European Parliament of 20 June 1996
meriting protection . By altering its position immediately                        — the decision of the Director-General for Personnel,
before the adoption of its decision and thereby abandoning                             the Budget and Finance of 23 August 1996
its longstanding approach to the matter, without providing
any reasons or detailed explanation therefor, the                            — order the European Parliament to pay to the applicant
Commission violated expectations on the part of VW which                          the outstanding balance of her salary as an official from
merited protection .                                                              29 April 1996 , together with default interest from the
                                                                                  date when each monthly salary payment respectively fell
The Commission should have found, on the basis of its                             due until final settlement,
handling of the matter over a number of years , that the
Mosel II and Chemnitz II projects fell to be regarded , in                   — order the European Parliament to pay to the applicant
terms of the law relating to aid, as wholly 'green-field'                         the sum of Bfrs 500 000 or such other sum, including
investments, and thus that the cost-benefit analysis was to                       any greater sum, as the Court may regard as fair and
 ---pagebreak--- No C 336/32           EN                 Official Journal of the European Communities                                      9 . 11 . 96
    reasonable, by way of compensation for the material and            her remuneration, in accordance with Article 60 of the
    non-material damage suffered by the applicant as a                 Staff Regulations .
    result of the contested decisions the annulment of which
    is sought,                                                      — Infringement of Article 25 of the Staff Regulations and
                                                                       Article 9 of Annex II thereto
— order the defendant to pay all the costs and expenses of             The applicant maintains that the Invalidity Committee's
    the proceedings .                                                  decision contains neither the statement of reasons which
                                                                       must accompany any decision           relating to a specific
Pleas in law and main arguments adduced in support:                    individual nor any reference to      the medical report on
                                                                       the basis of which the decision      was made . Moreover ,
The applicant, an official of the European Parliament who is           the report of the Invalidity         Committee which is
suffering from a serious illness, contests the Invalidity              communicated to the official concerned must be such as
Committee's decision of 31 January 1996 declining to                   to establish a comprehensible link between the medical
recognize her as suffering from permanent total invalidity,            findings which it contains, having regard to the existing
as well as the various decisions subsequently taken by                 medical file, and the conclusions which it draws . The
different departments of the European Parliament                       decision of the Head of the Personnel Division is
requesting the applicant to resume her duties and rejecting            unlawful because it puts forward, as the sole reason for
her medical certificates and reports .                                 the rejection of the medical certificates and the
                                                                       application of Article 60 of the Staff Regulations (which
The applicant advances the following pleas in support of her           deals with suspension of the payment of remuneration ),
action :
                                                                       the existence of the Invalidity Committee's decision of
                                                                       31 January 1996 .
— Infringement of the rules in respect of competence
    According to the applicant, the European Parliament             — Infringement of Article 24 of the Staff Regulations and
    endorsed the Invalidity Committee's conclusions of                 breach of the duty to have regard for the welfare and
                                                                       interests of officials
    31 January 1996 and justified its decision rejecting the
    medical certificates and reports produced by the                   The duty to have regard for the welfare and interests of
    applicant in respect of the period after 9 February 1996           officials requires the administration, when deciding on
    solely on the ground of the existence of the Invalidity            the situation of an official, to take into account not only
    Committee 's decision . The applicant contends that the            the interests of the service but also those of the official . In
    European Parliament is not the appointing authority;               the applicant's view, the European Parliament has failed
    according to Article 53 of the Staff Regulations and               to fulfil its obligations to provide assistance and to have
    Article 9 of Annex II thereto, that position is held by the        regard for her welfare and interests, since the rejection of
    Director of Personnel and Social Affairs . However, the            the medical certificates is based solely on the Invalidity
    Director    of Personnel    and   Social  Affairs   is  not        Committee's conclusions of 31 January 1996 and does
    empowered to withhold the payment to the applicant of              not provide any other statement of reasons .