CELEX: C1998/007/54
Language: en
Date: 1998-01-10 00:00:00
Title: Action brought on 2 July 1997 by Carmen Jiménez against the Office for Harmonization in the Internal Market (trade marks and designs) (Case T-200/97)

10. 1. 98             EN                 Official Journal of the European Communities                                      C 7/17
precisely in order to avoid the need for any retroactivity              render the grant of sick leave prescribed for the
that that Article provides for six-monthly interim                      purposes of undergoing treatment in the form of a
adjustments, with the possibility of being able to make                 thermal cure subject to further conditions for which
additional interim adjustments in the event of an                       no provision is made in Article 59 of the Staff
appreciable variation in the cost of living. The                        Regulations. On the basis of the presumption that a
Commission's failure to make six-monthly adjustments to                 medical certificate is to be presumed to be regular, and
the weightings during more than two years cannot                        of the principle of its credibility, that provision
therefore justify, a posteriori, the recovery of a so-called            automatically gives rise to entitlement to sick leave for
overpayment of remuneration.                                            the whole of the period covered,
(1) OJ L 83, 2. 4. 1996, pp. 1, 4 and 7.                            Ð breach of the principles of legal certainty, of the
                                                                        protection of legitimate expectations, of respect for
                                                                        acquired rights and of non-retroactivity, and
                                                                        infringement of the second paragraph of Article 25 of
                                                                        the Staff Regulations. The applicant considers in that
                                                                        regard that, although the appointing authority
Action brought on 30 June 1997 by Donato Continolo                      referred, in its decision rejecting his complaint, to the
   against the Commission of the European Communities                   criteria for granting sick leave covering the whole of
                        (Case T-196/97)                                 the period when he was absent for the purposes of
                                                                        undergoing medical treatment in the form of a thermal
                           (98/C 7/53)
                                                                        cure, it failed to set out those criteria in a clear
                                                                        manner or to mention the legal basis justifying their
                (Language of the case: French)
                                                                        adoption. Such a statement of reasons is not relevant.
                                                                        Moreover, contrary to the statement made by the
An action against the Commission of the European
                                                                        appointing authority in its reply rejecting his
Communities was brought before the Court of First
                                                                        complaint, the criterion of serious illness is not merely
Instance of the European Communities on 30 June 1997
                                                                        one of the criteria applied for the purposes of granting
by Donato Continolo, residing at Taino (Italy),
                                                                        additional leave; it constitutes the only criterion
represented by Jean-NoeÈl Louis, Thierry Demaseure and
                                                                        currently applied. He considers that, if other criteria
Ariane Tornel, of the Brussels Bar, with an address for
                                                                        had been applied, the appointing authority should
service in Luxembourg at the offices of Fiduciaire Myson
                                                                        have brought them to the attention of the staff in a
SARL, 30, rue de Cessange.
                                                                        clear and exhaustive manner, and should have referred
                                                                        to the provisions establishing them.
The applicant claims that the Court should:
Ð annul the Commission's decision refusing to grant the             Furthermore, although the applicant underwent his
    applicant sick leave in respect of the whole of the             treatment by way of thermal cure in May and September
    period prescribed by his attending medical practitioner         1995, it was not until 1 February 1996 that the Heads of
    for the purposes of undergoing medical treatment in             Administration confirmed the criterion proposed by the
    the form of a thermal cure,                                     Interinstitutional Medical Board for the grant of the
                                                                    second part of the special leave, namely, that it should be
Ð order the defendant to pay the costs.                             granted only in the case of a thermal cure connected with
                                                                    a sickness the expenses in relation to which are
Pleas in law and main arguments adduced in support:                 reimbursable at the rate of 100 %.
The present action concerns the refusal to grant the
applicant sick leave for the whole of his periods of
absence in May and September 1995, during which he
underwent medical treatment in the form of a thermal
cure, as prescribed by his attending medical practitioner           Action brought on 2 July 1997 by Carmen JimeÂnez
and as deemed to be necessary by the medical officer of             against the Office for Harmonization in the Internal
the Joint Sickness Insurance Scheme.                                              Market (trade marks and designs)
                                                                                           (Case T-200/97)
In support of his claims, he advances, in particular, the
following pleas:                                                                              (98/C 7/54)
Ð the illegality of conclusion No 207/94 of the Heads of                           (Language of the case: French)
    Administration, of the Commission's internal Directive
    No 8927 of 28 December 1994 and of the conclusion               An action against the Office for Harmonization in the
    of the Heads of Administration of 1 February 1996,              Internal Market (trade marks and designs) was brought
    inasmuch as, by authorizing the administration to               before the Court of First Instance of the European
    leave a medical certificate out of account,                     Communities on 2 July 1997 by Carmen JimeÂnez, residing
    alternatively, by providing that sick leave may be              in Luxembourg, represented by Georges Vandersanden, of
    granted only if the medical treatment is connected              the Brussels Bar, with an address for service in
    with a sickness the expenses in relation to which are           Luxembourg at the offices of the Fiduciaire Myson SARL,
    reimbursable at the rate of 100 %, those documents              30, rue de Cessange.
 ---pagebreak--- C 7/18              EN                  Official Journal of the European Communities                                  10. 1. 98
The applicant claims that the Court should:                        The applicant claims that the Court should:
Ð order the Office to produce the working papers of the            Ð rule that Article 8 of Regulation (EEC/Euratom,
    Selection Board in competition AT/C, in particular the              ECSC) No 3947/92, adopted by the Council on
    assessment forms completed by the members of the                    21 December 1992, is applicable to the applicant,
    Selection Board and the examiners after the interview
    on 27 September 1996, together with the Board's final
    report,                                                        Ð consequently, annul the Commission's decision of
                                                                        21 October 1996 rejecting the applicant's request to
                                                                        be regraded pursuant to Article 32 (3) of the Staff
Ð annul the Selection Board's decision not to include the               Regulations,
    applicant on the list of suitable candidates drawn up
    in the context of that competition,
                                                                   Ð annul, in so far as may be necessary, the decision
                                                                        adopted by the Commission on 2 April 1997 expressly
Ð order the Office to pay all the costs.
                                                                        rejecting the applicant's complaint,
Pleas in law and main arguments adduced in support:
                                                                   Ð order the defendant to pay the costs.
The applicant, a grade C 3 official at the Commission,
challenges the Office's decision of 30 October 1996 not to         Pleas in law and main arguments adduced in support:
include her on the list of suitable members of the
temporary staff in category C for performing office and            The applicant, a former member of the temporary staff
administrative duties, in the context of competition AT/C.         classified in grade A 6, step 4, was appointed an official of
In that respect, she puts forward the following pleas in           the Court of Auditors on 1 July 1982 and classified in
law:                                                               grade A 6, step 3, in accordance with the rules applying at
                                                                   that time. On 1 September 1984 he was transferred to the
Ð first plea: insufficient reasons are given for the               Commission.
    decision,
                                                                   In consequence of the judgment delivered by the Court of
Ð second plea: the competition procedure is vitiated by            First Instance on 6 March 1996 in Case T-93/94 Becker v.
    the fact that the member of the Selection Board                Court of Auditors (1), he requested the appointing
    designated by the Staff Committee did not have the             authority of the Commission to review his classification in
    right to vote,                                                 step. In the aforesaid judgment, the Court of First Instance
                                                                   ruled that Article 32 of the Staff Regulations of officials,
Ð third plea: the decision was adopted in breach of the            as amended by Council Regulation (EEC, Euratom, ECSC)
    principle of non-discrimination,                               No 3947/92 of 21 December 1992 (2), should also apply
                                                                   to members of the temporary staff appointed as officials
Ð fourth plea: the Selection Board committed a manifest            prior to the entry into force of that amendment. The
    error of assessment by refusing to acknowledge that            Commission rejected the request on the ground that it was
    the applicant is capable of performing the tasks               out of time, maintaining that it should have been
    concerned (category C office and administrative                submitted within three months of publication of the
    duties), even though she has been performing similar           amendment to the Staff Regulations.
    tasks in the European Community institutions for
    more than 10 years.                                            The applicant considers that the contested decision
                                                                   disregards Article 90 (1) of the Staff Regulations,
                                                                   inasmuch as that provision lays down no time limit for the
                                                                   submission of a request. He also maintains that the fact
                                                                   that he was appointed an official prior to the entry into
                                                                   force of the amendment to Article 32 of the Staff
Action brought on 4 July 1997 by Louis Koopman against             Regulations cannot preclude the application of the new
       the Commission of the European Communities                  provision in his favour, since any other interpretation
                                                                   would be contrary to the principle of equal treatment, as
                      (Case T-202/97)
                                                                   the Court of First Instance declared in the aforesaid
                         (98/C 7/55)                               judgment. Lastly, he maintains that, by failing to apply the
                                                                   amended provision automatically to him, and by then
               (Language of the case: French)                      claiming that his request for its application in his favour
                                                                   was out of time, the Commission completely failed to
An action against the Commission of the European                   fulfil its duty to have regard for the welfare and interests
Communities was brought before the Court of First                  of officials.
Instance of the European Communities on 4 July 1997 by
Louis Koopman, residing at Keerbergen (Belgium),                   (1) [1996] ECR-SC 91.
represented by Nicolas LhoeÈst, of the Brussels Bar, with an       (2) OJ L 404, 31. 12. 1992, p. 1.
address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 30, rue de Cessange.