CELEX: C1996/370/37
Language: en
Date: 1996-12-07 00:00:00
Title: Action brought on 18 October 1996 by Sandro Forcheri against the Commission of the European Communities (Case T-162/96)

7 . 12 . 96            EN 1                 Official Journal of the European Communities                                  No C 370 / 17
Pleas in law and main arguments adduced in support:                    interpreted by case-law. He maintains that the Commission
                                                                       has not accorded the union which he represents all the
The applicant states, with regard to the admissibility of his          rights to which it is entitled, inasmuch as the practical effect
claim, that it is directed not against an act of the appointing        of the contested decision results is to prohibit it from taking
authority but against a failure to act . That failure to act           part in meetings organized between the institutions and
consists in the fact that, because the weightings have still           trade unions and staff associations, to refuse it the
not been definitively fixed, the applicant's pension for the           necessary means for properly carrying out its tasks, to deny
period from 1 July 1991 to 30 June 1994 has not yet been               it the right to disseminate information and to prohibit it
finally determined .                                                   from carrying on trade union activities during working
                                                                       hours on the Commission's premises .
Moreover, the action is also well founded since there
                                                                       The applicant also complains that the Commission has not
appears to be no reason why the principles applying to
                                                                       complied with the framework agreement and that it has
officials residing in the Federal Republic of Germany                  distorted the aims thereof.
should differ from those applying in respect of all other
countries, or why the appointing authority should refrain              Lastly, he pleads infringement of the obligation to provide a
from applying the principles clearly obtaining since June              statement of reasons arising from the second paragraph of
1994 to the preceding period as well .                                 Article 25 and Article 90 ( 1 ) of the Staff Regulations .
Action brought on 17 October 1996 by Gundolf Bosetti                   Action brought on 18 October 1996 by Sandro Forcheri
    against the Commission of the European Communities                    against the Commission of the European Communities
                         ( Case T-161 /96 )                                                    ( Case T-l 62/96 )
                           ( 96/C 370/36 )                                                       ( 96/C 370/37)
                 (Language of the case: French)                                         (Language of the case: French)
An action against the Commission of the European                       An action against the Commission of the European
Communities was brought before the Court of First                      Communities was brought before the Court of First
Instance of the European Communities on 17 October 1996                Instance of the European Communities on 18 October 1996
by Gundolf Bosetti , residing in Luxembourg, represented by            by Sandro Forcheri , residing in Brussels, represented by
Gilles Bouneou, of the Luxembourg Bar, with an address                 Marc-Albert Lucas of the Liege Bar, with an address for
for service in Luxembourg at his Chambers, 15 Avenue du                service in Luxembourg at the Chambers of Evelyne Korn ,
                                                                       21 Rue de Nassau .
Bois .
                                                                       The applicant claims that the Court should:
The applicant claims that the Court should :
                                                                       — annul or declare to be unlawful the failure of the
— annul the decision of the Commission of 31 October                        Commission to second the Head of Division B/4 of
     1995 refusing to admit the independent trade union                     DG XXI to SAMCOMM on the date that he took up
     'Action et Defense — Luxembourg' to the framework                      his duties or at the very least with effect from
     agreement of 20 September 1974 concerning relations                    29 October 1992,
     between the Commission and trade unions and staff
     associations ,                                                    — annul the Commission 's decision of 12 December 1995
                                                                            refusing the applicant's request for payment of the
— order the Commission to pay all the costs.                                differential allowance provided for by Article 7 ( 2 ) of
                                                                            the Staff Regulations,
Pleas in law and main arguments adduced in support:
                                                                       — annul the Commission's decision of 24 July 1996
                                                                            granting his complaint in part, in that it fails to accept
The applicant, deputy general secretary of the trade union                  that he has, since 29 October 1992 , been performing
'Action et Defense — Luxembourg', states that on                            temporarily the duties of Head of Division XXI B/4 and
9 October 1995 that organization applied to be admitted to                  in that it therefore does not grant him the differential
the framework agreement of 20 September 1974                                allowance from 30 January 1993 and without
concerning relations between the Commission and trade                       limitation in time,
unions and staff associations . On 31 October 1995 the
competent Member of the Commission rejected the                        — order the Commission to pay him that differential
application on the ground that, as matters then stood, he                   allowance, together with interest for late payment at the
was not able to assess the extent to which the organization                 rate of 8% per annum from the date each month on
in question was a representative body.                                      which that allowance should have been paid until full
                                                                            payment,
The applicant considers that that decision disregarded
Articles 9 and 24a of the Staff Regulations of officials, as           — order the Commission to pay the costs .
 ---pagebreak--- No C 370/ 18           I EN 1              Official Journal of the European Communities                                    7 . 12 . 96
Pleas in law and main arguments adduced in support:                   Action brought on 18 October 1996 by Bernard Connolly
                                                                          against the Commission of the European Communities
                                                                                               Case T-163/96 )
The applicant, Deputy Head of Division B/4 ( Common
Customs Tariff) of DG XXI, states that, by a memorandum                                        ( 96/C 370/38 )
of 29 October 1992, his immediate superior asked him to
take on , forthwith and until further notice, the duties of
Head of Division B/4, because he had to spend all of                                   (Language of the case: French)
his own time on the workload inherent in his duties as
head of SAMCOMM ( Sanctions Assistance Missions
Communication Centre ). Since 29 October 1992, the                    An action aganst the Commission of the European
applicant has therefore been performing the duties of Head            Communities was brought before the Court of First
of Division, as recorded in the two staff reports drawn up            Instance of the European Communities on 18 October 1996
since that date .                                                     by Bernard Connolly, resident at Everberg ( Belgium ),
                                                                      represented by Jacques Sambon and Pierre-Paul Van
                                                                      Gehuchten, both of the Brussels Bar, with an address for
On 18 October 1995 , the applicant requested the                      service in Luxembourg at the Chambers of Louis Schiltz, 2
Commission to appoint him formally as temporary Head of               Rue du Fort Rheinsheim .
Division and to grant him the differential allowance
provided for by Article 7 ( 2 ) of the Staff Regulations . That
request was rejected. In response to the complaint lodged             The applicant claims that the Court should :
by. the applicant against that rejection, the Commission
gave him the temporary posting, but only from 1 August                — annul the suspension decision of 27 September 1995 ,
1996 .
                                                                      — annul the opinion of the Disciplinary Board of
The applicant's main plea contesting that decision is that                 7 December 1995 ,
Article 7 ( 2 ) of the Staff Regulations was infringed . He
contends      that all    the material  conditions  under that
provision for the grant of a temporary posting were met               — annul the appointing authority's decision of 16 January
from 29 October 1992 since, first, it has never been                       1996 , imposing on him the sanction of removal from
disputed that there continued to be an A 3 post in                         post, without reduction or withdrawal of pension
Division XXI/B/4 after the Head of Division had been                       rights,
assigned to SAMCOMM and, secondly, it is from that date
that the applicant was called upon by the appointing
authority, in this case his immediate superior, to take on a          — set aside the express rejection on 12 July 1996 of his
temporary posting. He claims, therefore, that the temporary                preliminary appeal of 7 March 1996 against the
posting should have taken effect on 29 October 1992 and                    opinion of the Disciplinary Board and the appointing
that he should have been paid the differential allowance                   authority's decision, referred to above,
from 30 January 1993 .
                                                                      — allow his claim for compensation by ordering the
Should the view be taken that the memorandum from his                      Commission to pay him Bfrs 7 500 000 , subject to
immediate superior cannot be regarded as a decision of the                 upward or downward adjustment in the course of the
appointing authority calling upon him to take on a                         proceedings, in respect of material damage, and Bfrs
temporary posting, the applicant claims in the alternative                 1 500 000 , subject as above, in respect of non-material
that the failure to assign him temporarily to the post of                  damage, in compensation for the loss and damage he
Head       of   Division    XXI/B/4  from  29   October    1992            has suffered by reason of the alleged irregular and
constitutes an infringement of Article 7 ( 2 ) of the Staff                unlawful conduct,
Regulations . Since all the requisite material conditions were
 satisfied, the Commission committed a manifest error in its
assessment of the circumstances of the case and breached its          — order the Commission to pay the costs.
 duty to have regard for his interests by failing to take the
necessary decision .                                                  Pleas in law and main arguments adduced in support:
The applicant points out, finally, that the Commission                Mr Connolly, who, in disciplinary proceedings brought
 should have seconded the Head of Division XXI/B/4 to
                                                                       against him for publishing a book without prior
 SAMCOMM, inasmuch as he manifestly satisfied the                      authorization , has already challenged the decisions taken to
 conditions for a secondment in the interests of the service
                                                                       suspend him under Article 88 of the Staff Regulations and
 within the meaning of the first indent of subparagraph ( a )          to refer the matter to the Disciplinary Board ( ] ), and has
 of the first paragraph of Article 37 of the Staff Regulations         also sought the annulment of the Board's opinion ( 2 ), asks
 ( official directed to serve temporarily in a post outside his        the Court, in the present case, to annul the Commission's
 institution ).                                                        decision of 16 January 1996 imposing on him the
                                                                       disciplinary sanction of removal from post without loss of
                                                                       pension rights .