CELEX: C1998/278/83
Language: en
Date: 1998-09-05 00:00:00
Title: Action brought on 26 May 1998 by Eugénio Branco L.da against the Commission of the European Communities (Case T-83/98)

5.9.98               EN                 Official Journal of the European Communities                                  C 278/37
García-Valdecasas and M. Jaeger, Judges; H. Jung,                  Instance of the European Communities on 26 May 1998
Registrar, made an order on 25 June 1998, the operative            by EugeÂnio Branco L.da, whose registered office is at
part of which is as follows:                                       Lisbon, represented by Bolota Belchior, of the Vila Nova
                                                                   de Gaia Bar, with an address for service in Luxembourg at
1. The applications are dismissed as inadmissible.                 the Chambers of Faltz & AssocieÂs, 6 rue Heine,
                                                                   Luxembourg.
2. The applicants shall bear their own costs and shall be
    jointly and severally liable to pay the costs of the
                                                                   The applicant claims that the Court should:
    Council. The Commission shall bear its own costs.
(1) OJ C 94, 22.3.1997.                                            Ð annul the decision of the Commission of the European
                                                                       Communities, dated 17 February 1998, communicated
                                                                       and notified to the applicant on 17 March 1998 by
                                                                       the Departamento para os Assuntos do Fundo Social
                                                                       Europeu (Department of European Social Fund
                                                                       Affairs, the DAFSE') by letter sent on 16 March
     ORDER OF THE COURT OF FIRST INSTANCE                              1998, to suspend payment of the ESF contribution in
                      (Fourth Chamber)                                 respect of files No 87301 P1 (PTE 43 550 366) and
                                                                       No 870302 P3 (PTE 5 809 712) granted to the
                        of 11 June 1998                                applicant by Commission Decision C(87) 860 of
in Case T-173/97, Augusto Fichtner v. Commission of the                30 April 1987,
                  European Communities (1)
(Officials Ð Late staff report Ð Promotion Ð                       Ð order the Commission to pay the costs.
Comparative examination of the merits Ð Compensation
for damage Ð Application manifestly inadmissible or
                                                                   Pleas in law and main arguments adduced in support:
                     entirely unfounded)
                         (98/C 278/82)
                                                                   Ð Breach of the principles of the protection of legitimate
               (Language of the case: Italian)                         expectations and of legal certainty:
In Case T-173/97: Augusto Fichtner, an official of the                 Although the Commission's Decision does not lay
Commission of the European Communities, residing at                    down a time limit, it should nevertheless be adopted
Besozzo (Varese, Italy), represented by Vincenzo Salvatore,            within a reasonable period.
of the Pavía Bar, against Commission of the European
Communities (Agent: Gianluigi Valsesia) Ð application
for (1) annulment of the Commission decision published                 It is clear that the period of 10 years which has
on 13 September 1996 in so far as it refused to place the              elapsed between the relevant date and the present is
applicant on the list of officials most deserving of                   excessive and far exceeds the limits dictated by
promotion under the 1996 promotions procedure and (2)                  common sense and normal expectations.
damages together with interest Ð the Court of First
Instance (Fourth Chamber), composed of P. Lindh,                       The effluxion of that period engendered and
President, K. Lenaerts and J. D. Cooke, Judges; H. Jung,               reinforced the applicant's legitimate expectation that it
Registrar, made an order on 11 June 1998, the operative                would adopt a decision approving the certificates
part of which is as follows:                                           issued by the DAFSE approving the claim for final
                                                                       payment submitted by the applicant.
1. The application is dismissed.
2. Each party is to bear its own costs.                                Since the Commission should have adopted its
                                                                       decision immediately after certification by the DAFSE
                                                                       had come to its knowledge, it is evident that the
(1) OJ C 271, 6.9.1997.
                                                                       period of 10 years (1988 to 1998) is excessive and
                                                                       exceeds the limits dictated by common sense and
                                                                       normal expectations.
                                                                       The Commission overstepped the rules of sound
Action brought on 26 May 1998 by EugeÂnio Branco L.da                  administration.
   against the Commission of the European Communities
                        (Case T-83/98)                                 If Member States are required to submit to the
                         (98/C 278/83)                                 Commission applications for payment within 10
                                                                       months from the end of programmes, failing which
             (Language of the case: Portuguese)                        they may not receive payment of the contribution
                                                                       concerned, then the Commission should issue its
An action against the Commission of the European                       decision approving that application for final payment
Communities was brought before the Court of First                      at least within as many months.
 ---pagebreak--- C 278/38            EN                  Official Journal of the European Communities                                    5.9.98
   The training programmes were carried out, as will                   expenditure for non-teaching expert, administrative
   be shown below, in strict compliance with and                       and secretarial staff for the project' but as specialist
   observance of the conditions imposed by the original                work which, by its very nature is carried out by third
   approval decision.                                                  parties.
Ð Contravention of the law Ð Unlawfulness Ð Error of                   The Decision is based on different criteria and on
   assessment of the facts:                                            whether E. B., L.da, a sub-contractor, is entitled to
                                                                       make legitimate profits.
   The applicant complied completely and rigorously
                                                                       The DAFSE and the Commission always accepted, by
   with all the requirements imposed by the Commission
                                                                       means of the discretion applied in respect of the
   as laid down in the decision approving the application
                                                                       period from 1986 to 1989, profit calculated on the
   and the legislation and, in particular, with that of
                                                                       basis of 50 % of the costs borne by the subcontractors,
   imparting vocational training to 36 and 300 persons
                                                                       so that the profit made by E. B., L.da was within the
   (in the two files, respectively) whose skills were
                                                                       bounds accepted by the DAFSE and the Commission.
   inadequate to permit their entry into the labour
   market.
   The contested decision alleges that certain expenditure
   incurred by the applicant did not fulfil the conditions
   laid down in the approval decision.                             Action brought on 28 May 1998 by Marie Costigan
                                                                            against the Council of the European Union
   For that reason it proposes to suspend final payment                                   (Case T-84/98)
   on the grounds set out in the report drawn up by the                                    (98/C 278/84)
   InspeccËaÄo-Geral de FinancËas (Inspectorate General for
   Finances).
                                                                                  (Language of the case: English)
   Thus, the contested decision was based exclusively, by
   reference, to that report of the InspeccËaÄo-Geral de           An action against the Council of the European Union was
   FinancËas.                                                      brought before the Court of First Instance of the European
                                                                   Communities on 28 May 1998 by Marie Costigan,
                                                                   represented by SeÂamas O'Tuathail, instructed by Lehane
   There is therefore an error of assessment of the facts          & Hogan, Solicitors, of 1 Upper Ormond Quay, Dublin 7,
   in the contested decision since the Commission, by              Ireland.
   basing itself exclusively on that report, committed the
   same errors as to the facts as the report itself.               The applicant claims that the Court should:
   The applicant used the payment to trainees of                   Ð annul Decision No 677/97 of the Secretary-General of
   attendance and merit bonuses in order to keep them                  the Council of the European Union of 11 July 1997,
   interested and to maximise learning, a policy which
   gave optimum results and resulted in zero absenteeism,
   none of which is contrary to the original approval              Ð reinstate Marie Costigan to her former post or
   decision.                                                           position with the Council of the European Union
                                                                       without any loss or diminution in her status, salary or
                                                                       incidental benefits,
   The applicant contracted a specialist organisation to
   provide assistance and to provide greater quality to
                                                                   Ð annul all subsequent decisions following on or giving
   the courses taught.
                                                                       effect in any way to or emanating from Decision
                                                                       No 677/97, mentioned above, made by or on behalf of
                                                                       the Secretary-General of the Council of the European
   The applicant subcontracted the services of that
                                                                       Union, his servants or agents,
   organisation, engaging teaching staff and concluding
   contracts for expert educational assessments and
   vocational guidance and budget management services.             Ð annul the decision made on 14 June 1996 by the
                                                                       Secretary-General of the Council of the European
                                                                       Union to refer the case of the applicant to the
   Reference to such subcontracting, which is permitted                Invalidity Committee,
   by the legislation and by the Commission's approval
   decision, was already to be found in the application,
   at least implicity, inasmuch as the estimated costs             Ð declare the conclusions of the Invalidity Committee
   associated with such work did not appear as                         arrived at on 9 July 1997 to be null and void,