CELEX: C1997/212/62
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 26 May 1997 by the Netherlands Antilles against the Commission of the European Communities and the Council of the European Union (Case T-163/97)

12 . 7 . 97          I EN I                 Official Journal of the European Communities                                    No C 212/31
Action brought on 21 May 1997 by Luis Manuel Chaves                    the President of the Office has failed to observe the basic
Fonseca Ferrao against the Office for the Harmonization                formalities which should precede the adoption of such a
                      of the Internal Market                           measure .
                          ( Case T-159/97 )
                                                                       Lastly, the expediency of the contested decision, to which
                            ( 97/C 212/61
                                                                       the exercise of the powers conferred by Article 119 (2 ) ( a )
                (Language of the case: French)                         of the Regulation is subject, has not been justified as
                                                                       regards the hierarchical subordination of members of the
An action against the Office for the Harmonization of the              Boards of Appeal to the chairmen thereof and of those
Internal Market was brought before the Court of First                  chairmen to the Vice-President for Legal Affairs, with the
Instance of the European Communities on 21 May 1997                    result that the contested decision is vitiated by a failure to
by Luis Manuel Chaves Fonseca Ferrao, residing at                      comply with essential procedural requirements, since it is
Alicante ( Spain ), represented by Roland Assa , of the                not supported by a statement of reasons .
Luxembourg Bar, with an address for service in
Luxembourg at the latter's Chambers, 1 Rue Jean-Pierre                 (') C)J No L 11 , 14 . 1 . 1994, p . 1 .
Brasseur.
The applicant claims that the Court should:
— review, pursuant to Article 179 of the Treaty and
     Article 91 ( 1 ) of the Staff Regulations, the legality of        Action brought on 26 May 1997 by the Netherlands
     Decision ADM-97-3 of 21 February 1997 of the                      Antilles against the Commission of the European
     President of the Office for the Harmonization of the                  Communities and the Council of the European Union
     Internal Market, in particular Article 2 thereof,                                            ( Case T-163/97 )
— declare the said decision, in particular Article 2                                                ( 97/C 212/62 )
     thereof, null and void, inasmuch as it establishes a
     twofold structure of hierarchical subordination                                    (Language of the case: Dutch)
     between the members and chairmen of the Boards of
     Appeal and between those chairmen and the Office's                An action against the Commission of the European
     Vice-President for Legal Affairs,                                 Communities and the Council of the European Union was
                                                                       brought before the Court of First Instance of the European
— order the Office for the Harmonization of the Internal               Communities on 26 May 1997 by the Netherlands
     Market ( trade marks and designs ) to pay the costs .             Antilles, represented by P. V. F. Bos and M. M. Slotboom,
                                                                       of the Rotterdam Bar, with an address for service in
Pleas in law and main arguments adduced in support:                    Luxembourg at the Chambers of Loesch & Wolter, 11
                                                                       Rue Goethe .
The applicant, a member of the First Board of Appeal of
the Office for the Harmonization of the Internal Market                The applicant claims that the Court should:
(trade marks and designs ), contests the abovementioned
decision, maintaining that the hierarchical subordination              — annul Commission Regulation ( EC ) No 764/97 of
of the members of the Boards of Appeal to the Vice­                         23 April 1997 introducing safeguard measures in
President for Legal Affairs, for which Article 2 of the                     respect of imports of rice originating in the overseas
contested decision provides, is incompatible with the                       countries and territories ('),
independent status conferred on them by Article 131 of
Council Regulation ( EC ) No 40/94 of 20 December 1993                 — order the Community to pay fair and reasonable
on the Community trade mark ('the Regulation') ( ] ). That                  compensation, to be determined by the Court, with
structure of subordination between the members and
                                                                            interest thereon from 22 May 1997 until payment is
chairmen of the Boards of Appeal , and between those                        made in full , and
chairmen and the Vice-President for Legal Affairs, affects
the internal institutional equilibrium resulting from the
                                                                       — order the         Commission,          the Council  and/or the
devision of powers between the different decision-making
authorities .                                                               Community, as appropriate, to pay the costs of the
                                                                            case .
Consequently, the contested decision is vitiated by the fact
that it infringes the Regulation, in particular Articles 112           Pleas in law and main arguments adduced in support:
and 131 thereof, the rules adopted for its implementation
and the general principles of law applying in the matter.              Infringement of the Treaty or of specific regulations
                                                                       implementing it and/or breach of general principles of
Furthermore, Article 119 of the Regulation does not                    Community law, in particular:
confer on the President of the Office the power to alter
the status of the members of the Boards of Appeal in a                  1 . misuse of powers: the Commission is using its powers
way which is inconsistent with their independence and                       under Article 109 of the OCT Decision to circumvent
their collegiate status . By adopting the contested decision                implementation of the review procedure in the OCT
without consulting the members of the Board, and by                         Decision ( Article 240 of the OCT Decision, in
allowing only three days for the submission of comments,                    conjunction with Article 136 of the EC Treaty );
 ---pagebreak--- No C 212/32            EN                  Official Journal of the European Communities                                     12 . 7 . 97
2 . breachof the principle of legal certainty: the safeguard          — order the defendant to pay all the costs .
     measures is not sufficiently clear and precise for
     individuals to be able to ascertain their rights and
     duties;                                                          Pleas in law and main arguments adduced in support:
3 . infringement of Article 133 ( 1 ) of the Treaty: customs          The applicants, who are officials of the Court of Auditors,
     duties on imports of goods from the OCT and charges              contest the fact that the arrangements for termination of
     having equivalent effect are to be completely                    service introduced by Council Regulation ( EC, Euratom,
     abolished;                                                       ECSC ) No 2688/95 H following the accession to the
                                                                      European Union of Austria, Finland and Sweden, in order
4 . infringement of Articles 132 ( 1 ) and 134 of the EC              to make it easier for nationals of those three new Member
     Treaty, in conjunction with Article 102 of the OCT               States to gain entry to the European civil service, are in
     Decision ;                                                       fact reserved exclusively for officials of the European
                                                                      Parliament.
5 . infringement of Article 7 ( 5 ) of the (WTO ) Agreement
     on Safeguards, together with Article 228 ( 7) of the EC
     Treaty;                                                          In support of their claims, they assert that Regulation ( EC,
                                                                      Euratom, ECSC ) No 2688/95 , cited above, is illegal . In
6 . infringement of Article 109 ( 1 ) of the OCT Decision;            their view, that regulation was adopted :
7. infringement of Article 109 ( 2 ) of the OCT Decision;             — in breach of Article 24 of the Treaty of 8 April 1965
                                                                           establishing a Single Council and a Single Commission
8 . breach of essential procedural requirements : failure to               of the European Communities (the 'Merger Treaty')
     comply with the rules of procedure of the Advisory                    and of the principle of a single European civil service,
     Committee on Safeguard Measures for the OCT;                          enshrined in Article C of the Treaty on European
                                                                           Union,
9 . infringement of Article 190 of the EC Treaty.
(') OJ No L 112 , 29 . 4 . 1997, p . 3 .                              — in disregard of the obligation to provide a statement of
                                                                           reasons, as laid down in Article 190 of the Treaty, of
                                                                           the requirement that the Staff Regulations Committee
                                                                           be consulted pursuant to Article 10 of the Staff
                                                                           Regulations of officials, and of Community legislative
                                                                           procedure . The applicants point out in that regard
Action brought on 26 May 1997 by Silvio Busacca and                        that, for the purposes of its enactment on the basis of
others against the Court of Auditors of the European                       Article 24 of the Merger Treaty, it was necessary for
                             Communities                                   the regulation in issue to be adopted by the Council
                                                                           acting by a qualified majority on a proposal from the
                          ( Case T-164/97)                                 Commission. However, under Article 189a of the
                             97/C 212/63                                   Treaty, the Council can adopt an act constituting an
                                                                           amendment to the Commission's proposal only if it
                (Language of the case: French)                             acts unanimously. In addition to the fact that the text
                                                                           finally adopted is substantially different from the
An action against the Court of Auditors of the European                    proposal submitted for consultation purposes to the
 Communities was brought before the Court of First                         institutions, the Council adopted that text on the basis
Instance of the European Communities on 26 May 1997                        of a qualified majority, whilst nevertheless referring, in
 by Silvio Busacca, residing in Luxembourg, Carlo Degli                    the preamble to the regulation, to the initial proposal
Abbati, residing in Luxembourg, Pamela Rattigan, residing                  made by the Commission,
 at Mamer ( Luxembourg ), Gisela Tremont, residing at
 Schrassig ( Luxembourg ) and Cecile Vandam, residing at
                                                                      — in breach of the principle of non-discrimination or
 Bousval ( Belgium), represented by Georges Vandersanden
 and Laure Levi, of the Brussels Bar, with an address for
                                                                           equality. As regards this point, the applicants consider
                                                                           that, as a result of the regulation in issue, officials in
 service in Luxembourg at the#offices of Fiduciaire Myson
                                                                            institutions other than the European Parliament are
 Sari, 30 Rue de Cessange .
                                                                            being discriminated against, both in fact and in law,
                                                                            by comparison with officials of the Parliament. That
 The applicants claims that the Court should :                              discrimination appears all the more flagrant having
                                                                            regard to the fact that, in order to benefit from the
 — annul the decision taken by the appointing authority                     effects of Regulation ( EC, Euratom, ECSC ) No 2688/
      in respect of each of the applicants on 16 September                  95 , all that any of the applicants need do is to procure
      1996 , rejecting their requests lodged on 22 August                   a transfer to the European Parliament.
      1996, 29 August 1996, 22 August 1996, 23 August
      1996 and 28 August 1996 respectively, and annul, in
      so far as may be necessary, the decision dated                   Lastly, the applicants consider that a regulation vitiated by
      28 February 1997 expressly rejecting the complaints              all the defects indicated above cannot have been adopted
      submitted by each of the applicants,                             for the purposes for which Community legislative powers