CELEX: C2001/245/28
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-277/01 P: Appeal brought on 13 July 2001 by European Parliament against the judgment delivered on 3 May 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-99/00 between Ignacio Samper and European Parliament

1.9.2001               EN                    Official Journal of the European Communities                                       C 245/15
Information Action brought on 12 July 2001 by the                       Appeal brought on 13 July 2001 by European Parliament
Commission of the European Communities against the                      against the judgment delivered on 3 May 2001 by the
                      Kingdom of Belgium                                Fourth Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-99/00 between Ignacio
                                                                                       Samper and European Parliament
                         (Case C-274/01)
                                                                                                (Case C-277/01 P)
                         (2001/C 245/27)
                                                                                                 (2001/C 245/28)
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 12 July             An appeal against the judgment delivered on 3 May 2001 by
2001 by the Commission of the European Communities,                     the Fourth Chamber of the Court of First Instance of the
represented by M. Wolfcarius, acting as Agent.                          European Communities in case T-99/00 between Ignacio
                                                                        Samper and European Parliament was brought before the
                                                                        Court of Justice of the European Communities on 13 July
                                                                        2001 by European Parliament, represented by H. Von Herzen
The applicant claims that the Court should:                             and D. Moor, with an address for service in Luxembourg.
1.    Declare that, by failing to adopt and bring into force            The appellant claims that the Court should:
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Council Directive 98/76/EC of 1 October 1998 amending             —     set aside the judgment of the Court of First Instance;
      Directive 96/26/EC on admission to the occupation of
      road haulage operator and road passenger transport
                                                                        —     give a final decision on the dispute by dismissing
      operator and mutual recognition of diplomas, certificates
                                                                              the action for annulment brought by Mr Samper as
      and other evidence of formal qualifications intended to
      facilitate for these operators the right to freedom of                  unfounded;
      establishment in national and international transport
      operations (1), the Kingdom of Belgium has failed to fulfil       —     in the alternative, refer the case back to the Court of First
      its obligations under that directive; and                               Instance for it to adjudicate anew on the action for
                                                                              annulment brought by Mr Samper;
2.    Order the Kingdom of Belgium to pay the costs.
                                                                        —     make an appropriate order as to costs.
Pleas in law and main arguments                                         Pleas and main arguments
                                                                        The Parliament claims that the Court of First Instance distorted
Article 2(1) of the directive in question provides that Member          the clear sense of the evidence and overstepped the limits of
States are to bring into force the laws, regulations and                judicial review.
administrative provisions necessary to comply with this Direc-
tive no later than 1 October 1999 and are forthwith to inform
the Commission thereof.
                                                                        Distortion of the clear sense of the evidence:
The necessary measures have not yet been adopted by Belgium.            The Court of First Instance wrongly found, in paragraph 40 of
                                                                        the judgment, that, for 1997, the ‘decisive’ criterion should be,
                                                                        according to the decision of the appointing authority, the level
                                                                        of responsibility deployed, personal investment made and the
                                                                        consistency of effort vis-à-vis his responsibilities. The decision
(1) OJ 1998 L 277, p. 17.                                               in question does not, however, make mention of any factors
                                                                        other than those appearing in the staff reports and refers to a
                                                                        comparison between the various duties only to justify its
                                                                        decision to depart from the Promotions Committee’s pro-
                                                                        posals.
 ---pagebreak--- C 245/16               EN                   Official Journal of the European Communities                                          1.9.2001
The Court of First Instance was wrong to find, at paragraph 47         The applicant claims that the Court should:
of the judgment, that the assessment of the Promotions
Committee was based on the view that the applicant experi-             —      Declare that, by failing to adopt, contrary to its obligations
enced difficulties in adjusting to his duties as Head, of the                 under Article 4 of Council Directive 76/160/EEC (1) of
Madrid Information Office. According to the minutes of the                    8 December 1975 concerning the quality of bathing
Committee’s meeting, that assessment, however, is no more                     water, measures to ensure that the quality of inshore
than an assessment by the Chair of the Committee who does                     bathing water in Spain conforms to the limit values set
not even have a vote on the Committee.                                        by Article 3 of that directive, the Kingdom of Spain has
                                                                              failed to comply with the judgment of the Court of Justice
                                                                              of the European Communities of 12 February 1998 in
Finally, the Court of First Instance was wrong to find, at                    Case C-92/96 (2), and thus failed to fulfil its obligations
paragraph 48 of the judgment, that the Promotions Committee                   under Article 228 of the EC Treaty;
based itself solely on the marks awarded in the staff reports. It
follows, in fact, from the minutes of the meeting of the               —      order the Kingdom of Spain to pay to the Commission of
Committee, that it had decided to take into account the level                 the European Communities, into the ‘European Com-
of responsibility of the duties carried out by the applicant and              munity own resources’ account, a penalty payment of
to uprate the applicant’s marks accordingly.                                  EUR 45 600 in respect of every day it delays in taking the
                                                                              measures necessary to comply with the judgment in Case
                                                                              C-92/96, from the date on which judgment is delivered
Limits of judicial review:                                                    in the present case until such time as the judgment in
                                                                              Case C-92/96 is complied with;
The Court of First Instance has replaced the assessment of the         —      order the Kingdom of Spain to pay the costs.
Promotions Committee with its own subjective assessment of
the applicant’s merits.
                                                                       Pleas in law and main arguments
The Court of First Instance wrongly found, at paragraph 52 of
the judgment, that the applicant carried out the duties of Head
of the Information Office with success and failed, in so doing,        In Case C-92/96 Commission v Spain, the Court of Justice
to make an objective comparison between the applicant and              held that by failing to take all necessary measures to ensure
his colleagues.                                                        that the quality of inshore bathing waters in Spain conforms
                                                                       to the limit values set in accordance with Article 3 of Council
                                                                       Directive 76/160/EEC of 8 December 1975 concerning the
The Court of First Instance wrongly takes the view, at                 quality of bathing water, the Kingdom of Spain had failed to
paragraph 53 of the judgment, that the appointing authority            fulfil its obligations under Article 4 thereof.
failed to take proper account of the duties actually carried out
by the applicant with success. That subjective assessment does
not however support the conclusion that the Promotions                 Article 228(1) of the EC Treaty requires the Kingdom of Spain
Committee committed a manifest error of assessment.                    to take the measures necessary to comply with the judgment.
                                                                       There is no doubt whatsoever that the Kingdom of Spain
                                                                       should long ago have adopted the measures necessary to
                                                                       ensure that the quality of bathing water conformed to the limit
                                                                       values set in Article 3 of the directive; more than two years
                                                                       elapsed between the judgment and the reasoned opinion
                                                                       without the Spanish Government having adopted any
                                                                       measures.
Action brought on 13 July 2001 by the Commission of
the European Communities against the Kingdom of Spain
                                                                       Pursuant to Article 228(2) EC, the Commission asks the Court
                        (Case C-278/01)                                to order the Kingdom of Spain to pay a penalty payment of
                                                                       EUR 45 600 in respect of every day it delays in taking the
                                                                       measures necessary to comply with the judgment in Case
                        (2001/C 245/29)                                C-92/96, as from the date of delivery of the judgment in the
                                                                       present case.
An action against Kingdom of Spain was brought before the
                                                                       (1) OJ 1976 L 31, p. 1.
Court of Justice of the European Communities on 13 July
                                                                       (2) Case C-92/96 Commission v Spain [1998] ECR I-505.
2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, acting as Agent, with
an address for service in Luxembourg.