CELEX: C1996/133/62
Language: en
Date: 1996-05-04 00:00:00
Title: Action brought on 6 March 1996 by Doreen Chew against the Commission of the European Communities (Case T-28/96)

4 . 5 . 96            HN                  Official Journal of the European Communities                                No C 133/29
— order the Commission to pay the costs in their                     Instance of the European Communities on 6 March 1996 by
     entirety .                                                      Doreen Chew, residing in Suva ( Fiji ), represented by Nicolas
                                                                     Lhoëst, of the Brussels Bar, with an address for service in
                                                                     Luxembourg at the offices of Fiduciaire Myson Sari, 1 Rue
Pleas in law and main arguments                                      Glesener .
The applicant, who is a member of the local staff employed
by the Commission's Delegation to Morocco, contests the              The applicant claims that the Court should:
irregularities which he alleges have vitiated the procedure
for electing representatives of staff serving outside the
                                                                     — annul the Electoral Committee's decision accepting the
Community .
                                                                         votes from the Delegation to the Solomon Islands, cast in
                                                                         the regional ballot for geographical area No 3 for the
At its meeting of 13 February 1995 , the Electoral                       election of a representative for local staff,
Committee — reversing an earlier decision — took the view
that, out of 23 votes cast in a regional ballot in Morocco for
the election of a member of the local staff, two were invalid,       — annul the election result announced by the Electoral
in the first case because the vote was not indicated on the              Committee at its meeting of 13 February 1995 in so far
regulation ballot paper, in the second because the vote was              as it named the regional representative elected by the
cast by correspondence and the outside envelope bearing the              local staff constituency for geographical area No 3 ,
name and signature of the voter was not attached to the list
of voters' signatures . As a result of the position adopted by       — declare the applicant to be the representative elected for
the Committee, the applicant was not elected.                            the local staff constituency in geographical area
                                                                         No 3 ,
The applicant maintains, first, that the voters' list drawn up
by the Head of the Commission's Delegation to Morocco                — in so far as may be necessary, annul the decision adopted
was incomplete because it did not include three members of               by the Commission expressly rejecting the applicant's
the local staff on temporary contracts who were eligible to              complaint,
vote . Those persons are members of the local staff, whether
or not they are on temporary contracts, and must at the very
least be treated as local staff since they have been in service      — at the very least, declare that the Commission has
for 3 years, 15 months and 12 months, respectively. The                  committed an error by taking into consideration the
Commission therefore acted in breach of its duty under                   votes from the Solomon Islands for the election of a
Article 9 ( 2 ) of the Staff Regulations to ensure that the              member of the local staff in the regional ballot and order
electoral procedure is properly conducted .                              the Commission to pay the applicant 1 franc by way of
                                                                         symbolic compensation for non-material damage,
Secondly, the applicant contests the Electoral Committee's
rejection of two of the votes freely entered by                      — order the Commission to pay the costs in their
correspondence . The applicant emphasizes that those two                 entirety .
votes were cast strictly in accordance with the free choice of
each voter. The fact that the special form was not used
cannot therefore affect the validity of the vote reflecting that     Pleas in law and main arguments
free choice . Furthermore , in so far as the voters from the
Morocco Delegation did not comply with certain formal                The applicant relates that, during December 1994, elections
procedural rules, but without prejudice to the certainty and         were held to provide for local and regional representation of
effectiveness of the vote, the applicant cannot be penalized         staff serving outside the Community in the various
for shortcomings which are a direct result of a failure on the       Commission delegations . At the meeting convened on
part of the Flead of Delegation to provide information .             12 January 1995 to establish the election report, the
                                                                     Electoral Committee declared that at the Delegation to the
                                                                     Solomon Islands the members of local staff had cast six
                                                                     votes in the regional ballot, whereas only five voters had
                                                                     signed the list of voters/signatures; the Committee also
                                                                     declared that if the votes from the Solomon Islands were not
                                                                     counted, the applicant would win the election . The Head of
Action brought on 6 March 1996 by Doreen Chew against                the Commission's Delegation to the Solomon Islands
        the Commission of the European Communities                   informed the Electoral Committee that the signature of one
                        ( Case T-28/96 )                             voter, who had voted, did not appear on the list of
                                                                     voters/signatures because of a ' substantive error' and
                          ( 96/C 133/62                              forwarded a copy, duly rectified, of the list in question. The
                                                                     Electoral Committee decided, therefore, at its meeting of
                (Language of the case: French)                       13 February 1995 , to accept the results forwarded from the
                                                                     Delegation to the Solomon Islands and declared that
                                                                     another candidate had been elected, not the applicant. The
An action against the Commission of the European                     applicant submitted a complaint against that decision,
Communities was brought before the Court of First                    which was expressly rejected .
 ---pagebreak--- No C 133/30          EN                  Official Journal of the European Communities                                       4 . 5 . 96
In support of her application, the applicant relies on the plea     — order the European Parliament to pay the costs of the
that the election procedure was irregular in so far as the               proceedings pursuant to Article 87 et seq . of the Rules of
Electoral Committee counted the votes cast by the members                Procedure , and in particular the expenses relating to the
of local staff in the Delegation to the Solomon Islands                  address for service, travel and subsistence expenses and
whereas , contrary to the instructions of 19 October 1994                lawyer's fees .
sent by the Electoral Committee to all heads of delegations,
the number of votes cast did not match the number of voters .
The Head of the Delegation indeed affirmed that the six
members of local staff had cast their votes in the proper           Pleas in law and main arguments
manner, but that statement cannot be verified . The Electoral
Committee was therefore wrong to declare the regional               The applicant, a former temporary member of staff with the
elections held in the Solomon Islands to be valid and to
count the votes cast in those elections .
                                                                    ELDR Group in the European Parliament, was affected by
                                                                    total incapacity for work as the result of an illness during the
                                                                    final period of his contract. He contests the refusal by the
The applicant also points out that, under Article 9 ( 2 ) of the    defendant institution to remunerate him for the leave which
Staff Regulations, the Commission has the right, and is             he did not take in 1994 .
under a duty, to ensure that elections to the Staff Committee
are properly conducted and to intervene if the electoral rules
are not complied with . In the present case, there was a            The applicant takes particular exception to the Parliament's
manifest irregularity in the electoral procedure; the               assertion that he unjustifiably absented himself during the
Commission should therefore have intervened in order to             month of 2 September 1994 and that this absence ought
mitigate the consequences of that irregularity, but failed to       accordingly to be deducted from his leave pursuant to
do so .                                                             Article 60 of the Staff Regulations .
                                                                    The applicant stresses in this regard that medical certificates
                                                                    covering the period in question were properly submitted to
                                                                    the secretariat of the Parliament's Medical Service . He also
                                                                    points out that his legal counsel expressly referred to
                                                                    incapacity by reason of illness in September 1994 and that
                                                                    he was at no time told that payment would not be made to
                                                                    him in respect of all or some of those unused leave days on
Action brought on 8 March 1996 by Bernd Schoch against
                                                                    the ground that the Parliament had not received any medical
                  the European Parliament                           certificate for September 1994 . In fact, it was not until
                       ( Case T-29/96 )                             12 May 1995 that the allegedly unauthorized nature of his
                         ( 96/C 133/63 )                            absence was raised . The applicant wishes to point out in this
                                                                    regard that, following denials that the medical certificates
                                                                    had been submitted for the periods after 15 July 1994,
               (Language of the case: French)                       certificates were none the less rediscovered for the period
                                                                    from 16 July 1994 to 1 September 1994 .
An action against the European Parliament was brought
before the Court of First Instance of the European                  In a strictly legal context, the applicant submits that
Communities on 8 March 1 996 by Bernd Schoch, residing in           Article 60 of the Staff Regulations provides that an allegedly
Gottmadingen ( Federal Republic of Germany ), represented           unauthorized absence must be established and that, in so far
                                                                    as it was not until seven months after the material time that
by Lucas Vogel , of the Brussels Bar, with an address for
service in Luxembourg at the Chambers of Christian                  it was claimed that the applicant had failed to submit a
Kremer, 8— 10 Rue Mathias Hardt.                                    medical certificate for September 1994 — even though the
                                                                    applicant's counsel had in that same month expressly
                                                                    referred to his client's incapacity by reason of illness during
The applicant claims that the Court should :                        that month — that finding would appear to be too late to
                                                                    justify application of the abovementioned Article 60 .
— annul the implied decision of rejection and the express
    decision of partial rejection taken by the European             Finally, even if the Court were to take the view that the
    Parliament on 26 February 1996 in respect of the                applicant's incapacity cannot be accepted as justification for
    complaint lodged by the applicant on 9 August 1 995 ,           his absence in September 1994, that absence ought in any
                                                                    event to be regarded as justified by the decision of the ELDR
                                                                    Group to give him no further work and to release him from
— order the European Parliament to pay to the applicant             provision of notice .
    the gross sum of Bfr 124 120 in respect of the 1 9,5 leave
    days which he did not take in 1994 , increased by default
    interest at an annual rate of 8 % , with effect from
    31 December 1994 , the date on which that sum ought to
    have been paid to him,