CELEX: C2003/146/31
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-116/03 P: Appeal brought on 14 March 2003 by Augusto Fichtner, a former official of the Commission of the European Communities, against the judgment of 16 January 2003 of the Fourth Chamber of the Court of First Instance in Case T-75/00 Augusto Fichtner v Commission

21.6.2003               EN                       Official Journal of the European Union                                         C 146/19
Appeal brought on 14 March 2003 by Augusto Fichtner,                           b)   even if it should be deemed that the appellant did,
a former official of the Commission of the European                                 however, fail to fulfil said obligation, such breach
Communities, against the judgment of 16 January 2003 of                             could not be held to have been committed ‘intention-
the Fourth Chamber of the Court of First Instance in Case                           ally or through negligence’;
           T-75/00 Augusto Fichtner v Commission
                                                                         2.    the principle of proportionality (by the administration)
                         (Case C-116/03 P)                                     by:
                                                                               a)   misuse of its powers: the Commission, by adopting
                          (2003/C 146/31)
                                                                                    the contested decision, pursued an objective other
                                                                                    that for which the relevant power had been con-
                                                                                    ferred on it (safeguarding the internal rules of the
                                                                                    civil service) and, in any event, in order to achieve
An appeal against the judgment of 16 January 2003 of the                            purposes other than those declared;
Fourth Chamber of the Court of First Instance in Case T-75/
00 Augusto Fichtner v Commission was brought before the
                                                                               b)   manifest error of assessment of the facts: the Com-
Court of Justice of the European Communities on 14 March                            mission failed to take into account:
2003 by Augusto Fichtner, represented by Michele Tamburini
and Franco Colussi, lawyers.
                                                                                    1.    the good faith of the appellant;
The appellant claims that the Court should:
                                                                                    2.    that he could not have been refused the per-
                                                                                          mission in question since the outside activity
—     set aside the contested judgment;                                                   did not impair the official’s independence nor
                                                                                          was detrimental to the work of the Communi-
—     uphold the claims submitted at first instance and, accord-                          ties.
      ingly;
      —     annul the contested decision of the appointing
            authority of 30 September 1999, which is at issue;
      —     order the Commission to pay him the outstanding
            remuneration and allowances as revalued and with
            interest to run from the date on which the decision
            took effect until actual payment is made;
                                                                         Reference for a preliminary ruling by the Consiglio di
                                                                         Stato in sede giurisdizionale, Sezione Sesta by order of
      —     order the Commission to make good the material
                                                                         that Court of 17 December 2002 in the case of Società
            and non-material damage suffered by the appellant,
                                                                         Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
            such compensation being assessed at EUR 50 000 or
                                                                         re e dei Trasporti and Regione Autonoma del Friuli
            any other amount which the Court might deem
                                                                                                   Venezia Giulia
            appropriate and equitable or as may be subsequently
            decided;
                                                                                                  (Case C-117/03)
—     order the Commission to pay the costs.
                                                                                                  (2003/C 146/32)
Pleas in law and main arguments
The judgment of the Court of First Instance is contrary to
Community law, in particular to:                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Consiglio di Stato in
                                                                         sede giurisdizionale, Sezione Sesta (Judicial Committee of the
1.    Article 86(1) of the Staff Regulations, inasmuch as:
                                                                         Council of State, Sixth Chamber) of 17 December 2002,
                                                                         received at the Court Registry on 18 March 2003, for a
      a)    the appellant did not fail to fulfil his obligations         preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
            under the third paragraph of Article 12 of the Staff         against Ministero delle Infrastrutture e dei Trasporti and
            Regulations, having proved that he did request               Regione Autonoma del Friuli Venezia Giulia on the following
            permission to pursue an outside activity;                    question: