CELEX: C1995/351/26
Language: en
Date: 1995-12-30 00:00:00
Title: Action brought on 9 October 1995 by R against the Commission of the European Communities (Case T-187/95)

No C 351 / 12          EN                    Official Journal of the European Communities                                   30 . 12 . 95
JUDGMENT OF THE COURT OF FIRST INSTANCE                                 The applicant claims that the Court should :
                     of 9 November 1995
in Case T-346/94 : France-Aviation v. Commission of the
                                                                        ( 1 ) order the defendants to pay to it DM 2 279 859,69
                                                                              together with interest at the annual rate of 8 % from
                  European Communities ( ] )                                  9 August 1990 pro tanto in return for the assignment of
(Repayment of customs duty — Audi alteram partem —                            the balance of its claim against Iraq for the equivalent
                         Special situation)                                   balance due to it;
                           ( 95/C 351 /24 )
                                                                        ( 2 ) order the defendants to pay the costs;
                (Language of the case: French)                          ( 3 ) declare the judgment enforceable, alternatively,
                                                                              provisionally enforceable subject to the provision of a
In     Case  T-346/94 :        France-Aviation ,  established   at            bank guarantee .
Châteaufort ( France ), represented by Jean-Claude Cavaillé ,
of the Lyon Bar, with an address for service in Luxembourg              Pleas in law and main arguments adduced in support:
at the Chambers of Guy Arendt, 62 Avenue Guillaume v.
Commission of the European Communities ( Agents :                       The applicant is a German undertaking engaged in the
Richard Wainwright and Jean-Francis Pasquier ) —                        provision of services relating to the implementation of
application for the annulment of Commission Decision                    infrastructure projects . At the time when Regulation ( EEC )
REM 4/94 of 18 July 1994 holding in response to a request               No 2340/90 entered into force , it was carrying out certain
from the French Government that repayment of import                     works in Iraq . That Regulation , which was enacted
duties was not justified in the applicant's case — the Court            following the military occupation of Kuwait by Iraq and in
of First Instance ( First Chamber ), composed of: H.                    accordance with a resolution of the Security Council of the
Kirschner, acting as President, A. Kalogeropoulos and V.                United Nations , prohibited trade with Iraq and Kuwait. The
Tiili , Judges, H. Jung, Registrar, has given a judgment on             applicant claims compensation for the damage suffered by it
9 November 1995 , in which it:                                          as a result of the economic reprisals adopted by the Iraqi
                                                                        authorities against the interests of the Member States of the
                                                                        Community in Iraq . Its capital invested in that country was
 1 . annuls Commission Decision REM 4/94 of 18 July                     blocked and its bank accounts were frozen; the measures
      1994, addressed to the French Republic,                           taken were in the nature of expropriation .
     Directorate-General of Customs and Indirect Taxes ;
                                                                        In the applicant's view, the liability of the Community
2 . dismisses the remainder of the application;                         institutions arises from the fact that they enacted the
                                                                         Regulation in question without providing for measures by
                                                                        way of compensation for the damage which the victims of
 3 . orders the Commission to pay the costs.                             possible economic reprisals on the part of the Iraqi
                                                                         authorities might suffer.
 (') O J No C 351 , 10 . 12 . 1994 .
                                                                         That course of action is inconsistent with the right of
                                                                         ownership, which is a basic right the observance of which is
                                                                         to be ensured by the Community judicature, and which is
                                                                         enshrined as such in the Protocol to the European
                                                                         Convention on Human Rights .
 Action brought on 6 October 1995 by Dorsch Consult
 Ingenieurgesellschaft mbH against the Council of the
        European Union of the European Communities
                         ( Case T-l 84/95 )                              Action brought on 9 October 1995 by R against the
                            ( 95/C 351 /25 )                                     Commission of the European Communities
                                                                                                ( Case T-l 87/95 )
                (Language of the case: German)                                                    ( 95/C 351 /26 )
                                                                                        (Language of the case: French)
 An action against the Council of the European Union and
 the Commission of the European Communities was brought
 before the Court of First Instance of the European                      An action against the Commission of the European
 Communities on 6 October 1995 by Dorsch Consult                          Communities was brought before the Court of First
 Ingenieurgesellschaft mbH , represented by Karl M. Meessen               Instance of the European Communities on 9 October 1995
 of Messrs Norr, Stiefenhofer & Lutz, Brussels, with an                   by R, residing in Lausanne ( Switzerland ), represented by
 address for service in Luxembourg at the Chambers of                     Georges Vandersanden and Laure Levi , of the Brussels Bar,
 Patrick Kinsch of Messrs Arendt & Medernach , 8— 10 Rue                  with an address for service in Luxembourg at the offices of
 Mathias Hardt .                                                          Fiduciaire Myson Sari , 2 Rue Glesener .
 ---pagebreak--- 30 . 12 . 95           EN                  Official Journal of the European Communities                                 No C 351 / 13
The applicant claims that the Court should :                          She further pleads breach of the duty to have regard for the
                                                                      welfare of officials and of the principles of good
— annul the decision of 14 December 1994 adopted by the               management and sound administration, by reason of what
    Commission , as the appointing authority, refusing to             she considers to have been the uncooperative attitude and
    accede to the applicant's request of 8 October 1986 for           negative, obstructive approach shown by the appointing
    recognition of an occupational disease, and, in so far as         authority throughout its handling of the matter .
    may be necessary, the implicit decision rejecting the
    applicant's complaint,                                            She also considers that the defendant provided an erroneous
                                                                      statement of reasons , inasmuch as the contested decision is
— award the applicant default interest at the annual rate of          based on contradictory arguments .
     8 % on the sum due to her pursuant to Article 73 of the
    Staff Regulations,                                                Lastly, the applicant observes that, for numerous reasons
                                                                      relating to the ill will shown by the Commission in this
— award the applicant ECU 1 , calculated on a provisional             matter, it is guilty of a misuse of powers , since it deviated
     basis, by way of compensation for the non-material               from its task and from its duty to promote the common
    damage suffered by her,                                           interest .
— order the defendant to pay all of the costs .
Pleas in law and main arguments adduced in support:
The applicant , the widow of a Community official who
worked for 26 years in the nuclear field, states that her
husband died in 1986 as a result of an infection caused by            Action brought on 16 October 1995 by Hitachi Ltd,
the hepatitis B virus which developed into chronic active             Matsushita Electronics Corporation, Mitsubishi Electric
hepatitis . She maintains that the infection from which her           Corporation , NEC Corporation, Oki Electric Industry Co.,
husband suffered only rarely develops into a chronic                  Sanyo Electric Co., Sharp Corporation and Toshiba
complaint resulting in death and observes that, according to          Corporation against the Commission of the European
                                                                                                 Communities
the medical advice taken at the time , her husband 's lack of
immunity against the hepatitis B virus could have originated                                  ( Case T- 192/95 )
from external factors, of which the only one meriting serious                                   ( 95 /C 351 /27 )
consideration was his exposure to radiation in the course of
his career with the nuclear energy services of the
Community . The applicant consequently submitted a                                    (Language of the case: English)
request on 8 October 1986 for the recognition of her
husband 's illness as an occupational disease . Following a
lengthy and complex procedure, and on the basis of two                An action against the Commission of the European
reports by the medical committee provided for in Article 23           Communities was brought before the Court of First
of the Rules on the insurance of officials of the European            Instance of the European Communities on 16 October 1995
Communities against the risk of accident and of                       by Hitachi Ltd, Matsushita Electronics Corporation,
occupational disease ('the Rules '), the appointing authority         Mitsubishi Electric Corporation, NEC Corporation, Oki
rejected the applicant's request by decision of 14 December           Electric Industry Co ., Sanyo F^lectric Co ., Sharp
 1994 .                                                               Corporation and Toshiba Corporation , represented by Ivo
                                                                      Van Bael , with an address for service in Luxembourg at the
The applicant considers that the appointing authority acted           Chambers of Loesch & Wolter, 1 1 Rue Goethe.
unlawfully in a number of respects in its handling of her
request for recognition of an occupational disease .
                                                                      The applicants claim that the Court should :
She maintains, first of all, that the contested decision
disregards Article 73 of the Staff Regulations of officials and       — annul the Commission decision to initiate an interim
Article 3 ( 1 ) of the Rules . She considers that it has been             review contained in notice 95/C 181 /04 of 15 July 1995
established , first, that her husband was exposed to ionizing             in so far as it concerns the undertakings accepted by
radiation and that the development of viral hepatitis into a              Commission Regulation ( EEC ) No 165/90 in respect of
chronic condition may be caused by exposure to that type of               imports of certain types of electronic microcircuits
radiation and , second , that the illness from which her                  known as DRAMs originating in Japan,
husband died is included in the European list of
 occupational diseases ; since the criteria of Article 3(1 ) of the   — declare that the applicants are no longer subject to any
 Rules were fulfilled, the defendant should have applied                  anti-dumping measures imposed on imports of DRAMs
 Article 73 of the Staff Regulations of officials .                       originating in Japan and are therefore not to be regarded
                                                                           as interested parties for the purpose of the interim review
 The applicant also contends that the procedure leading to                 of the definitive anti-dumping duty imposed on imports
 the adoption of the contested decision was irregular in                   into the EU of DRAMs originating in Japan initiated by
 several respects .                                                       Notice 95/C 181 /04 , and