CELEX: C2001/108/45
Language: en
Date: 2001-04-07 00:00:00
Title: Case T-20/01: Action brought on 25 January 2001 by Concetta Cerafogli and 5 other employees of the European Central Bank against the European Central Bank

C 108/24                EN                   Official Journal of the European Communities                                       7.4.2001
The applicant claims that the Court should:                             Furthermore, the applicants allege that the measures intro-
                                                                        duced via the regulation violate the limits of the Commission’s
                                                                        implementing powers as to the WTO-compatibility of the
—      Order the defendant to pay damages pursuant to Article           licensing regime and the division into ‘country allocations’,
       288 EC for the losses suffered by it through the unlawful        and that the Commission has acted in breach of its clear
       measures introduced by Commission Regulation                     mandate from the Council.
       2362/98 (1), all sums to be increased with compensatory
       interest at a rate of 8 % to be applied from the day on
       which the damage materialised.                                   Finally, the applicants contend that the measures introduced
                                                                        by Regulation No 2362/98 infringe the principle of non-
                                                                        discrimination, the freedom to pursue trade or business as well
                                                                        as the principle of good faith in international law and the
—      Order the defendant to pay legal interest on such sums as
                                                                        legitimate expectations traders can derive from that.
       are found to be due at a rate of 8 %
—      Order the defendant to pay the costs of these proceedings        (1) Commission Regulation (EC) No 2362/98 of 28 October 1998
                                                                            laying down detailed rules for the implementation of Council
                                                                            Regulation (EEC) No 404/93 regarding imports of bananas into
                                                                            the Community (OJ 1998 L 293, p. 32).
                                                                        (2) OJ L 47, 25.2.1993, p. 1.
                                                                        (3) OJ L 210, 28.7.1998, p. 28.
Pleas in law and main arguments
The applicants operate their business in the EC as a single
economic entity, and the core of the their operations is the
marketing, distribution and sourcing of bananas.
As the factual and legal background for their claims, the               Action brought on 25 January 2001 by Concetta Cerafogli
applicants have indicated that in 1993 the EC ‘banana                   and 5 other employees of the European Central Bank
regime’ was introduced through Council Regulation 404/93 (2).                         against the European Central Bank
Following a dispute settlement procedure in the WTO finding
aspects of this regime to be WTO-incompatible, the EC agreed                                      (Case T-20/01)
to make its banana regime compatible by 1 January 1999.
This was purportedly done by Council Regulation No
1637/98 (3) and Commission Regulation No 2362/98. How-                                           (2001/C 108/45)
ever, the EC’s amended banana regime was also found to be
WTO-incompatible in two supplemental WTO rulings issued
in April 1999 which related inter alia to the system for                                   (Language of the case: German)
distribution of import licences and the division of a yearly
tariff rate quota of 2 553 000 tonnes opened for imports from
Latin America into ‘country allocations’. In spite of those             An action against the European Central Bank was brought
rulings, these allegedly unlawful measures remain in force.             before the Court of First Instance of the European Communities
                                                                        on 25 January 2001 by Concetta Cerafogli and 5 other
                                                                        employees of the European Central Bank, represented by
                                                                        Norbert Pflüger, Regina Steiner and Silvia Mittländer, Rechtsan-
The applicants state that as a result of the discriminatory             wälte, with an address for service in Luxembourg.
distribution of licences as introduced by Regulation No
2362/98, they have suffered a loss of market share and have
been forced to buy or lease the use of import licences and to           The applicants claim that the Court should:
accept unfavourable contract conditions. The applicants claim
to have sustained substantial damage and losses caused by the           (1) annul the rule laid down in Article 8.1.0 of the provisional
defendant’s breach of law, and under Articles 235 and 288 EC                  Staff Rules, as brought into force by the European Central
they claim compensation for a continuing loss of profit and                   Bank with effect from 16 August 2000, and the rule laid
for non-recurring costs which would not have been incurred                    down in Article 7.2.0 of the provisional Staff Rules, as
had the measures in the regulation not been introduced.                       brought into force with effect from 26 September 2000,
                                                                              alternatively annul those rules as regards the relationship
                                                                              between the defendant and the applicants;
The applicants submit that Regulation No 2362/98 is unlawful
in that it infringes superior rules of law, i.e. WTO rules              (2) annul Administrative Circular 01/2000 concerning the
and obligations, as well as the fundamental policy of the                     Rules for Business Travel, alternatively annul Administrat-
Community to amend the banana regime in order to make it                      ive Circular 01/2000 as between the defendant and the
WTO-compatible.                                                               applicants;
 ---pagebreak--- 7.4.2001              EN                      Official Journal of the European Communities                                     C 108/25
(3) annul the contractual rules to be contained in the                   The applicant claims that the Court should:
      applicants’ employment documentation whereby future
      amendments to the Conditions of Employment or to the
      provisional Staff Rules are to form the subject-matter of          —     annul the implied decision of the appointing authority
      contractual obligations;                                                 refusing to grant special leave for elections and the
                                                                               relevant travelling time from the afternoon of 10 June to
(4) annul the decision of the President of the defendant of                    the morning of 15 June 1999 and from the afternoon of
      27 November 2000 rejecting the applicant’s grievance;                    7 October to the morning of 12 October 1999;
(5) order the defendant to pay the costs.
                                                                         —     order the Commission to pay the costs.
Pleas in law and main arguments
By their application, the applicants, who are in an employment
                                                                         Pleas in law and main arguments
relationship of unlimited duration with the European Central
Bank, seek annulment of two rules contained in the defendant’s
provisional Staff Rules (‘SR’), which lay down a time-limit for
commencing the administrative review procedure. Until the
amendment of those rules, there was no time-limit. The
                                                                         I.     Lack of competence
applicants regard the amendment of the provisions of Articles
8.1.0 and 7.2.0 of the SR as an infringement of their
contractual rights.
                                                                         The decision of the appointing authority of 31 March 2000,
In addition, the applicants’ business travel was previously              signed by the Deputy Director-General for Competition, on
governed by Administrative Circular 07/1998. The rules                   the basis of which 6 days of annual leave were deducted,
applying to the applicants were altered, to the detriment of             amounting to an implied refusal of the applicant’s request for
the applicants, by Administrative Circular 01/2000. In the               special leave for elections and the relevant travelling time,
applicants’ view, those rules affect the essence of their employ-        infringes the provisions in force relating to the powers of the
ment relationships, and the amendment of them likewise                   appointing authority and to any decisions to delegate authority,
constitutes an infringement of their contractual rights.                 inasmuch as it was signed by someone who was not empow-
                                                                         ered to do so.
The applicants further claim that, upon concluding their
contracts, they were compelled to accept a rule whereby future
amendments to the Conditions of Employment or to the SR
are to form the subject-matter of contractual obligations.
However, the defendant is not empowered to lay down rules                II.    Infringement of the Staff Regulations
in the nature of employment legislation, and can therefore                      and the internal instruction of the
neither unilaterally alter substantive provisions for the reim-                 Commission of 21 February 1996
bursement of travel costs nor unilaterally change the contrac-
tual obligations by means of the new rules contained in
Articles 7.2.0 and 8.1.0 SR.                                             The implied refusal of the appointing authority infringes
                                                                         Article 57 of the Staff Regulations and Annex V respectively,
                                                                         as well as the internal instruction of the Commission of
                                                                         21 February 1996, which provides that travelling time is to be
                                                                         granted only upon submission of documentary evidence of
                                                                         participation in the elections. The requirement to submit any
                                                                         other documentary evidence other than that required for
Action brought on 31 January 2001 by Francisco Miguel                    special leave and the relevant travelling time for elections has
Viana França against Commission of the European Com-                     no legal basis.
                            munities
                         (Case T-25/01)
                        (2001/C 108/46)                                  III.   Breach of the duty to cooperate in good
                                                                                faith and of the principle of pro-
                                                                                portionality
                 (Language of the case: Portuguese)
An action against the Commission of the European Communi-                First, the applicant was asked, in February 2000, to submit
ties was brought before the Court of First Instance of the               documents relating to the events which took place in June and
European Communities on 31 January 2001 by Francisco                     October 1999, despite the fact that no provision of law obliged
Miguel Viana França, residing in Brussels, represented by                the applicant to keep such documents and that it was
Gonçalo Gentil Anastácio, advogado.                                     unreasonable to expect him to possess them.