CELEX: C1997/009/31
Language: en
Date: 1997-01-11 00:00:00
Title: Action brought on 23 October 1996 by Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. against the Commission of the European Communities (Case T-171/96)

11 . 1 . 97           1 EN                 Official Journal of the European Communities                                   No C 9/ 17
Action brought on 23 October 1996 by Comafrica SpA                         ( a ) the reference quantities declared are systematically
and Dole Fresh Fruit Europe Ltd & Co. against the                                and materially higher than the quantities actually
           Commission of the European Communities                                imported into the Community during the reference
                         (Case T-171/96 )                                        period;
                            97/C 9/31
                                                                           ( b ) the reference quantities claimed by category A
                                                                                 operators are systematically and materially higher
                  (Language of the case: English)                                than the category A licences actually granted by
                                                                                 the Community;
An action against the Commission of the European
Communities was brought before the Court of First
                                                                           (c ) as a result of inconsistencies in the figures
Instance of the European Communities on 23 October                               themselves and of simple arithmetical and
1996 by Comafrica SpA and Dole Fresh Fruit Europe Ltd
                                                                                 reporting errors, the Commission is using different
& Co., represented by Bernard O'Connor, assisted by
                                                                                 figures to calculate reference quantities for 1995 ,
Bonifacio Garcia Porras, with an address for service in
                                                                                 19 96 and provisionally 1997;
Luxemburg at the Chambers of Arsene Kronshagen, 22
rue Marie Adelaide .
                                                                           ( d ) as a result of the Commission's poor
The applicants claim that the Court should :                                     administration, there has been double counting of
                                                                                 quantities;
— pursuant to Articles 173 and 174 of the EC Treaty,
     declare Regulation ( EC ) No 1561/96 of 30 July                       ( e ) finally, the Commission has failed in its legal
     1996 f 1 ) void in so far as it affects the applicants or,                  obligation to operate a fair and transparent system
     alternatively, declare it void erga omnes,                                  for the allocation of banana licences; by
                                                                                 establishing a system immune from any publicly
                                                                                 verifiable control , the Commission was bound to
— pursuant to Article 184 of the EC Treaty, declare                              be faced with the problem of double counting or
     Regulation ( EC ) No 1442/93 inapplicable in so far as                      inaccurate reference quantities .
     it constitutes the legal basis of Regulation ( EC )
     No 1561/96 and affects the applicants,
                                                                      (B) Pursuant to Article 184 of the EC Treaty, the
— order the Commission, pursuant to Article 178 and                        applicants plead the illegality of Regulation ( EEC )
     the second paragraph of Article 215 of the EC Treaty,                 No 1442/93 , which is the legal basis of Regulation
     to make good any damage caused to the applicants by                   ( EC ) No 1561 /96 . They maintain that the Commission
     the wrongful adoption of Regulation ( EC ) No 1561/                   relied on provisions of Regulation ( EEC ) No 1442/93
     96 ,                                                                  which        infringe   the    principles   of fairness,
                                                                           reasonableness and good administration .
— make any additional orders which the Court considers
     necessary for the purposes of determining the damage             ( C) The applicants claim that the Commission infringed an
     caused to the applicants;                                             essential procedural requirement laid down in
                                                                           Regulation ( EEC ) No 404/93 by failing to draw up a
— order the Commission to pay the costs of the                             forecast supply balance before the beginning of the
     proceedings.                                                          1996 marketing year. They agree that Regulation
                                                                           ( EEC ) No 404/93 does not expressly state that the
Pleas in law and main arguments adduced in support:                        forecast supply balance is to be drawn up before the
                                                                           commencement of the marketing year in question, but
The         application    concerns      the      Commission's             consider that this is an implied requirement since the
administration, for the marketing year 1996, of the                        correct calculation of the quota and ultimately of the
allocation of licences for the import of third-country and                 reduction coefficient depend on production of a
non-traditional ACP bananas into the Community under                       forecast supply balance before the start of the relevant
the tariff quota established by Article 18 ( 1 ) of Council                marketing year.
Regulation ( EEC ) No 404/93 of 13 February 1993 . The
applicants, both of whom import bananas into the                      With regard to the claim for damages, the applicants
Community, challenge the decision of the Commission to                submit that, for the reasons already stated, the
reduce the quantity of licences allocated to them for the             Commission has infringed a superior rule of law for the
year 1996 through the application of a definitive                     protection of the individual by determining the reduction
reduction coefficient based on the reference quantities set           coefficients for 1996 . The infringement is sufficiently
out in Commission Regulation ( EC ) No 1561 /96 of 30 July            serious to found an action in damages, in so far as the
1996 .
                                                                      Commission has acted in a manner verging on the
                                                                      arbitrary. As a result of the infringement, they suffered a
The applicants submit that Regulation ( EC ) No 1561 /96              loss that goes beyond the bounds of the economic risks
must be annulled for the following reasons:                           inherent in their business; that loss arises, on the one
                                                                      hand, from the fact that the share of the category A quota
(A) The Commission determined the reference quantity on               allocated is less than it would have been if the
     the basis of information which it knew was incorrect :           Commission had calculated the reduction coefficient on
 ---pagebreak--- No C 9/ 18            1 EN                   Official Journal of the European Communities                                     11 . 1 . 97
the basis of correct figures and, on the other hand, from               Action brought on 20 September 1996 by Ernesto
the fact that the Commission is using different figures to              Brognieri against the Commission of the European
calculate reference quantities for 1995 and 1996 .                                                 Communities
                                                                                                ( Case T-l 74/96 )
(!) OJ No L 193 , 3 . 8 . 1996 , p . 15 .
                                                                                                    ( 97/C 9/33 )
                                                                                         (Language of the case: French)
Action brought on 28 October 1996 by Yannick
Chevalier-Delanoue against the Council of the European                  An action against the Commission of the European
                                 Union                                  Communities was brought before the Court of First
                                                                        Instance of the European Communities on 20 September
                          ( Case T-l 72/96 )
                                                                        1996 by Ernesto Brognieri , residing at Barasso ( Italy ),
                             ( 97/C 9/32 )                              represented by Eric Boigelot, of the Brussels Bar, with an
                                                                        address for service in Luxemburg at the Chambers of
                (Language of the case: French)                          Louis Schiltz, 2 rue du Fort Rheinsheim .
An action against the Council of the European Union was
brought before the Court of First Instance of the European              The applicant claims that the Court should:
Communities on 28 October 1996 by Yannick Chevalier­
Delanoue, residing at Brussels, represented by Jean-Noel
Louis, Thierry Demaseure and Ariane Tornel, of the                      — annul the decision of 30 November 1995 concerning
Brussels Bar, with an address for service in Luxemburg at                    the award of shiftwork allowance, in compliance with
Fiduciaire Myson SARL, 30 rue de Cessange .                                  the judgment delivered by the Court of First Instance
                                                                             on 8 June 1995 in case T-583/93 ,
The applicant claims that the Court should:
— annul the decision of the Council of 29 January 1996                  — order all sums due thereunder to be paid to the
    not to increase his annual leave by additional                           applicant in whole, both principal and default interest,
    travelling time,                                                         the amount of the principal being assessed, without
                                                                             prejudice, in particular to increases during the course
— order the defendant to pay the costs .                                     of the proceedings, at the sum of Lit 24 997 792, with
                                                                             interest to be assessed at the rate of 8 % per annum,
Pleas in law and main arguments adduced in support:
The applicant, an official at the Council whose place of                — order the defendant to pay all the costs .
origin was fixed as Washington, states that he is
challenging the decision whereby the appointing authority
refuses to add to the duration of the annual leave to                   Pleas in law and main arguments adduced in support:
which he is entitled travelling time calculated by taking
into account the needs and, in particular, the actual                   The applicant, who is the same as in Cases T-583/93 ,
duration and conditions of the journey as well as the                   settled by judgment of 8 June 1995 , and in Case T-148/96,
period of adjustment/recovery resulting from the time                   still pending, challenges the decision of the appointing
difference .
                                                                        authority of 30 November 1995 awarding him the
                                                                        shiftwork allowance            from   1   March   1993     until
He considers that the travelling time of two days granted               31 December 1993 .
to him in reliance on the rules generally applied to
officials whose place of origin is outwith Europe covers
only the duration of the journey, but takes no account of               He complains in particular that the decision ignores the
the time to recover from the fatigue to which such a                    fact that the decision regularizing his position was not
journey gives rise. In the view of the applicant, this means            taken until 28 November 1995 and that the operative part
that the appointing authority treats officials whose place              of the said judgment of 8 June 1995 required the payment
of origin is situated outwith Europe differently from those             of sums intended to cover the period between 1 March
whose place of origin is situated within Europe and who                 1993 and the date on which the decision regularizing his
are entitled, in accordance with Article 7 of Annex V to                position was adopted . That date cannot refer to the date
the Staff Regulations, to an increase of their holiday in               of a decision nearly two years before the judgment.
order to take account of the strain of the journey
notwithstanding the fact that they are not faced with the
problem of recovering from the effects of jet-lag. He                   In support of his claims, the applicant alleges infringement
concludes that the contested decision was adopted in                    of Articles 26 and 56a of the Staff Regulations, and
breach of the principle of equal treatment and non­                     Articles 176 and 179 of the Treaty of Rome, and
discrimination as well as of Article 7 ( 5 ) of Annex V to              infringement of the principle of res judicata.
the Staff Regulations .