CELEX: C1996/133/58
Language: en
Date: 1996-05-04 00:00:00
Title: Action brought on 27 February 1996 by Elsa De Persio against Commission of the European Communities (Case T-23/96)

4 . 5 . 96            EN                  Official Journal of the European Communities                                No C 133/25
reasoning for its decision, thereby infringing Article 7 ( 3 ) of    He maintains, first, that, in view of his having been turned
Council Decision 93/73 1 /EC and Article 190 of the EC               down in favour of a candidate who did not meet the
Treaty.                                                              minimum requirements as to specific knowledge and
                                                                     experience, in disregard of Article 7 of the Staff Regulations,
                                                                     the appointment in issue was not in the interest of
                                                                     the service . Consequently, that appointment appears
                                                                     necessarily to be vitiated by misuse of powers.
                                                                     Moreover, there has been a breach of the principle of the
Action brought on 21 February 1996 by Antonio Giannini               protection of legitimate expectations, in that, contrary to
  against the Commission of the European Communities                 the Commission's current practice in such matters, the
                        ( Case T-21 /96 )                            description of the post to be filled contained a serious
                          ( 96/C 133/57)                             anomaly, since, by contrast with the descriptions normally
                                                                     given in respect of almost all posts advertised by the
                                                                     Commission, it made no reference to the tasks to be carried
                (Language of the case: French)                       out, nor to the qualifications needed for those tasks in terms
                                                                     of knowledge and experience. Is follows that, in the present
An action against the Commission of the European                     case, the Commission's conduct is compatible neither with
Communities was brought before the Court of First                    the aim of the vacancy notice, which is to provide interested
Instance of the European Communities on 21 February                  parties with detailed information concerning the
1996 by Antonio Giannini, residing in Brussels, represented          qualifications required in order to apply for the post in
by Marc Dallemagne and Carlo Locchi, of the Brussels Bar,            question, nor with the principle that officials must be able to
with an address for service in Luxembourg at the Chambers            rely on a practice regularly followed by the administrative
of Jeannot Biver, 7 Côte d'Eich.                                     authority.
                                                                     Lastly, the applicant pleads the commission in the present
The applicant claims that the Court should :                         case of a manifest error of appreciation, based on disregard
                                                                     of Articles 4, 29 ( 1 ) and 45 of the Staff Regulations and of
— annul the Commission's decision rejecting the                      the vacancy notice itself. In concrete terms, it is apparent
     applicant's application for post COM/151/94 , which             from an examination of the merits of the ultimately
     was notified to the applicant on 28 April 1995 ,                successful candidate that his application did not meet the
                                                                     minimum qualifications required by the vacancy notice . The
— annul the defendant's decision appointing another                  person in question has no experience in the negotiation or
     candidate to the grade A3 post of Head of Unit DG I.D.l         management of international agreements relating to textiles.
     'Negotiation and management of textile agreements;              Nor does he possess the knowledge needed in order to
     clothing and other industries' pursuant to vacancy              accomplish the tasks entrusted to that unit. It follows that
     notice COM/151 /94, which was brought to the                    the appointing authority exceeded the parameters of the
     applicant's knowledge on 3 May 1995 ,                           said vacancy notice .
— annul the decision rejecting the complaint submitted by
     the applicant on 25 July 1995 , which was brought to his
     knowledge on 3 May 1995 ,
— order the defendant to pay the applicant ECU 5 000 by              Action brought on 27 February 1996 by Eisa De Persio
     way of compensation for the non-material damage                     against Commission of the European Communities
     suffered by him, subject to increase or decrease during                                  ( Case T-23/96 )
     the course of the proceedings,
                                                                                                ( 96/C 133/58 )
— order the defendant to pay the applicant ECU 15 000 by
     way of compensation for the economic damage suffered                           (Language of the case: Italian)
     by him, subject to increase or decrease during the course
     of the proceedings,                                             An action against the Commission of the European
                                                                     Communities was brought before the Court of First
— order the defendant to pay all of the costs .                      Instance on 27 February 1996 by Eisa De Persio, an official
                                                                     of the Commission of the European Communities,
Pleas in law and main arguments                                      represented by Giovanni Petroni and Franco Giampietro, of
                                                                     the Rome Bar, with an address for service in Luxembourg at
                                                                     the chambers of Gilles Bounéou, 15 Avenue du Bois .
The applicant, a grade A4 Commission official, contests the
rejection of his application for the grade A3 post of Head of
Unit DG I.D.l 'Negotiation and management of textile                 The applicant claims that the Court should:
agreements; clothing and other industries', particularly in
the light of the vacancy notice on the basis of which the post       — declare unlawful the ousting of the applicant from her
in question was filled .                                                 duties and the pressure and intimidation intended to
 ---pagebreak--- No C 133/26         EN                  Official Journal of the European Communities                                           4 . 5 . 96
  deprive her of her A post at the Office for Official             Pleas in law and main arguments
  Publications of the European Communities ( OP ),
                                                                   The applicant, a Commission official originally recruited in
— declare unlawful and annul Decision No 010466 of                 Category LA and then placed at the disposal of the Office for
  22 December 1995 signed by the Director General for              Official Publications of the European Communities to take
  Personnel and Administration transferring the applicant          charge of the Italian version of Celex, at which time she had
  from    the   OP   to  the   translation     service    of the   to perform duties appropriate to Category A, objects to the
  Commission of the European Communities with effect               decision of the Director of the OP whereby she was
  from 16 January 1996 ,                                           retransferred to the Translation Directorate .
— declare unlawful, in the total absence of any statement of       She states in that connection that, as from the date when she
  reasons, the administration's implied rejection of her           started work in the OP, the applicant has in fact carried out
  complaint No 689/95 ,                                            the duties involved in being responsible for the methodology
                                                                   of entering information into Celex and, at least at the early
                                                                   stage , she was a member of the Celex Interinstitutional
                                                                   Group . However the administration never fixed the starting
— declare unlawful and annul the express decision                  date for calculating her seniority in Grade A 5 , making her
  rejecting her complaint No R 689/96 , notified belatedly         acceptance of a transfer to Luxembourg a precondition for
  to the applicant on 18 January 1996 by delivery of               regularization of her administrative position .
  memorandum No 010299 of 21 December 1995 , signed
  by the Director General for Personnel ,
                                                                   The applicant alleges, first, a breach of the principle of
                                                                   the protection of legitimate expectations and of the
— declare that the Commission decision of 4 February               administration's duty to have regard to the interests of
  1994, published in the Special Issue of 'Administrative          officials in so far as the administration's inertia allowed the
  Notices' on 1 1 February 1994 in French and on 15 April          OP de facto to oust her from her duties even though it would
  1994 in the other languages, does not constitute                 have been in the interests of the service to allow her to
  adoption of the implementing provisions provided for,            continue to discharge those functions .
  where necessary, by Article 11 ( 4 ) of Regulation ( EEC,
  Euratom, ECSC No 3947/92 and in any event declare
  that they cannot be relied on as against the applicant,          The applicant also refers to what she calls the manifest
                                                                   illogicality and insufficient and misconceived statement of
                                                                   reasons for Decision No 010466/95 of the Director General
— declare that the applicant belongs to Category A, in             for Personnel . Moreover, the applicant submits that the
  Grade A 5 , with effect from 1 January 1993 , the date of        decision in question , even if it had been adopted by the
  entry into force of Regulation ( EEC, Euratom, ECSC )            competent appointing authority, is in any event tainted by
  No 3947/92 ,                                                     misuse of powers, being intended to legitimize the de facto
                                                                   ousting of the applicant from her duties and from the A post
                                                                   contained in the OP organization chart.
— definitively return the applicant to the discharge of her
  duties at the OP, as such duties are described in her staff
  report assessments for the period 1 October 1992 to              Furthermore, according to the applicant, the criterion
  30 June 1993 ,                                                   according to which the derogation provided for in Article 1 1
                                                                   of Regulation ( EEC, Euratom, ECSC ) No 3947/92 is
                                                                   applicable only to posts re-advertised as vacant after
— examine the legality of Article 45 ( 2 ), ( 3 ) and ( 4 ) of the publication of the general implementing provisions of
  Staff Regulations of officials of the European                   4 February 1994 cannot be regarded as a basis for a transfer.
  Communities in the light of the general principles of law        Those provisions do not cover the case of a transfer from the
  recognized by Article F. 2 of the Treaty on European             Celex and Eurobases departments . They were issued a year
  Union ,                                                          later in relation to entirely different circumstances, in order
                                                                   to meet various staff needs in relation to individual posts
                                                                   and not for the staff requirements of two entire
                                                                   departments .
— order the defendant to pay damages for the non-material
  damage suffered by the applicant as a result of the
  administration's unlawful conduct,
                                                                   Lastly, the applicant claims that Article 45 ( 2 ), ( 3 ) and ( 4 ) of
                                                                   the Staff Regulations are unlawful having regard to the
                                                                   general principles of law.
— order the defendant to pay the costs of the proceedings in
  their entirety and the costs incurred by the applicant, in
  particular in respect of travel, accommodation and fees
  of lawyers and costs of providing an address for service,
  pursuant to the rules of Procedure .