CELEX: C1997/387/43
Language: en
Date: 1997-12-20 00:00:00
Title: Action brought on 16 October 1997 by Società Ca' Pasta s.r.l. against the Commission of the European Communities (Case T-274/97)

20 . 12 . 97            EN                 Official Journal of the European Communities                                     C 387/23
Pleas in law and main arguments adduced in support:                   Action brought on 16 October 1997 by Societa Ca'
                                                                      Pasta s.r.l . against the Commission of the European
                                                                                                 Communities
The applicant, an official in Grade A 4, takes issue with
the appointing authority's refusal to promote him to                                          ( Case T-274/97 )
Grade A 3 , rejecting his application for the post advertised                                   ( 97/C 387/43 )
in Notice of Vacancy No 8011 . A Swedish woman who
passed an open competition and was placed third on the
reserve list was appointed in his place .                                              (Language of the case: Italian)
The applicant puts forward the following pleas in support             An action against the Commission of the European
of his claims :
                                                                      Communities was brought before the Court of First
                                                                      Instance on 16 October 1997 by Societa Ca ' Pasta s.r.l .,
— infringement of Article 29 ( 1 ) of the Staff Regulations,          represented by Paolo Piva , of the Venice Bar, and Guy
     in that, in contravention of that provision , the                Arendt, of the Luxembourg Bar, with an address for
     appointing authority opened the external recruitment             service in Luxembourg at the latter's chambers, 62 Avenue
                                                                      Guillaume .
     procedure without first considering the possibility of
     filling the vacant post through the various internal
     recruitment procedures . The different selection criteria
     by which the appointing authority is bound under                 The applicant claims that the Court of First Instance
     Articles 7 and 27 of the Staff Regulations make it               should annul the measure in the form of a letter of reply
     impossible to compare directly internal applications             dated 4 August 1997 ( File No 11423 ) from Directorate
     with external applications in that the appointing                General XIV ( Fisheries ) relating to ' Project IT/ 166/91 —
     authority's decisions on promotion and transfer must             Your letter of 21 July 1997'.
     be based on the interest of the service while
     recruitment must be on the basis of the criteria of
     ' ability, efficiency and integrity, ... on the broadest         Contentions and principal arguments adduced in support:
     possible geographical basis',
                                                                      This action derives from the grant of aid to the applicant
— breach of the obligation to state reasons under                     in connection with structural incentives for the fisheries
     Article 25 of the Staff Regulations,                             and agricultural sector. With a view to implementation of
                                                                      a project for modernization of an aquaculture unit in
                                                                      Contarina ( Veneto ), the applicant sought and obtained a
— infringement of Article 7 of the Staff Regulations in               Community contribution of Lit 942 300 004, equal to
     that the applicant's candidature was rejected and the            40 % of the approved cost. Following an administrative
     candidate ultimately chosen was appointed not on the             check, involving Commission representatives, it was noted
     basis of the criterion of the interest of the service but        that the business had been transferred without the prior
     of considerations relating to the nationality of the             authorization considered necessary under Article 24 of
     candidates in question,                                          Regulation No 4253/88 ('). After completing the
                                                                      procedure provided for in Article 44 of Regulation
                                                                      No 4028/86 (-), the head of Directorate General XIV
— existence, in this case, of a manifest error of                     issued the contested measure, confirming 'continuation of
     assessment and failure to take account of the selection
                                                                      the internal procedure with a view to cancelling the
     criteria published in the Notice of Vacancy, in that, as         contribution and recovering the amount already paid '.
     regards the specifications set out in that notice,
     external candidates inevitably did not have knowledge
     of the specific nature of the Parliament's departments           In support of its claims, the applicant relies on the
     or of the practical operation of internal administrative         following pleas in law:
     procedures or rules,
                                                                      — breach of essential procedural requirements, in that
— the decision complained of is contrary to the interest                  the principle of collegiality was not observed in
     of the service in that, despite the applicant's                      relation to the adoption of the contested measure;
     experience, the post in question was not satisfactorily
      filled,
                                                                      — inappropriate investigation, lack of a statement of
— the contested decision was made on the basis of data                     reasons and misuse of powers . According to the
     which were manifestly not comparable, in that the                     applicant, there was a clear distortion of the facts
      successful candidate chosen was on a reserve list while              owing essentially to an improper and inadequate
     the applicant's qualifications were of necessity assessed             investigation, the purpose of which was to check
                                                                           whether there had been a transfer of the business
      on the basis of his staff reports .
                                                                           without prior authorization from the Commission and
                                                                           the Italian Government ( the described as 'a significant
                                                                           alteration ') rather than , possibly, consistent use of the
 ---pagebreak--- C 387/24                   EN                    Official Journal of the European Communities                                      20 . 12 . 97
       investment which had been made in full long before.                   Pleas in law and main arguments adduced in support:
       The applicant considered that it did not conclude a
       separate sale of the installations and equipment but
       transferred its entire business, comprising the fish                  The pleas in law and main arguments are similar to those
       hatchery, clearly maintaining the undertaking as a                    submitted in Cases T- 186/97, T- 187/97, T-l 90/97, T-191/
       going concern.                                                        97, T-l 92/97, T-210/97, T-211 /97, T-216/97, T-217/97
                                                                             and T-2 18/97 ( 1 ).
— breach of the principle of legal certainty and of
       Articles 38 and 44 of Regulation No 4028/86 . The                     (') OJ C 318 , 18 . 10 . 1997, p . 17—25 .
       applicant observes in that connection that, in the light
       of the exhaustive manner in which that regulation lays
       down the conditions for initiation of the procedure for
       suspension/cancellation/reduction of the contributions,
       it can hardly be said that the term 'significant
       alteration of the project' covers a mere change in the
       ownership of the business.                                            Action brought on 24 October 1997 by Wilson Holland
                                                                             BV against the Commission of the European Communities
(') Council Regulation ( EEC ) No 4253/88 of 19 December 1988                                           ( Case T-280/97)
      laying down provisions for implementing Regulation (EEC )
      No 2052/88 as regards coordination of the activities of                                             ( 97/C 387/45 )
      different Structural Funds between themselves and with the
      operations of the European Investment Bank and other
      existing financial instruments ( OJ L 374 , 31 . 12 . 1988 , p. 1 ).                     (Language of the case: English)
( 2 ) Council Regulation ( EEC ) No 4028/86 of 18 December 1986
      on Community measures to improve and adapt structures in
      the fisheries and aquaculture sector ( OJ L 376 , 31 . 12 . 1986 ,     An action against the Commission of the European
      p. 7 ).                                                                Communities was brought before the Court of First
                                                                             Instance of the European Communities on 24 October
                                                                             1997 by Wilson Holland BV, represented by Catherine
                                                                             Grisart, of the Brussels Bar, with an address for service in
                                                                             Luxembourg at the office of Stef Oostvogels, 13 Rue
                                                                             Aldringen, Luxembourg.
Action brought on 24 October 1997 by DFDS Transport
 BV against the Commission of the European Communities                       The applicant claims that the Court should:
                            ( Case T-279/97
                              ( 97/C 387/44 )                                — annul the decision of the European Commission of
                                                                                    June 5 , 1997 No C(97 ) 1636 def./2, under reference
                    (Language of the case: English)                                 REM 26/96 ( not published in the Official Journal of
                                                                                    the European Communities ), based on Article 173 of
                                                                                    the Rome Treaty,
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 24 October                           — acknowledge that the applicant reserves all its rights to
 1997 by by DFDS Transport BV, represented by Catherine                             bring at a later stage an action for damages against the
 Grisart, of the Brussels Bar, with an address for service in                       defendant,
 Luxembourg at the office of Stef Oostvogels, 13 Rue
Aldringen, Luxembourg.
                                                                             — order         the   defendant      to  bear all costs   of    the
 The applicant claims that the Court should :                                       proceedings, including all costs fees and expenses of
                                                                                     the applicant.
— annul the decision of the European Commission of
        5 June 1997, No C(97 ) 1636 def./l , under reference                 Pleas in law and main arguments adduced in support:
        REM 26/96 ( not published in the Official Journal of
        the European Communities ), based on Article 173 of
        the Rome Treaty,                                                     The pleas in law and main arguments are similar to those
                                                                              submitted in Cases T-l 86/97, T-l 87/97, T-l 90/97, T-191 /
                                                                              97, T-192/97, T-210/97, T-211 /97, T-216/97, T-217/97
 — acknowledge that the applicant reserves all its rights to                  and T-2 18/97 (') and T-279/97 ( 2 ).
        bring at a later stage an action for damages against the
        defendant,
                                                                              (') OJ C 318 , 18 . 10 . 1997, p. 17—25 .
                                                                              ( : ) See page 24 of this Official Journal .
 — order         the   defendant     to   bear    all    costs     of    the
        proceedings, including all costs fees and expenses of
        the applicant .