CELEX: C1995/087/34
Language: en
Date: 1995-04-08 00:00:00
Title: Action brought on 10 February 1995 by Efthimia Bitha, Vasiliki Bitha and Georgios Bitha against the Commission of the European Communities (Case T-23/95)

8 . 4 . 95          I EN |                Official Journal of the European Communities                                  No C 87/15
Instance of the European Communities on 7 February 1995              ( Gabon), represented by Nicolas Lhoest, of the Brussels Bar,
by SA Adia Interim, the head office of which is in Brussels,         with an address for service in Luxembourg at the office of
represented by Vincent Thiry, of the Liege Bar, with an              Myson Sari, 1 Rue Glesener.
address for service in Luxembourg at the Chambers of Tom
Gilliams, 47 Grand Rue.                                              The applicant claims that the Court should:
The applicant claims that the Court should:                          — annul the decision of the Commission of 4 May 1994
                                                                         refusing the applicant full reimbursement of his medical
— declare the application admissible and well-founded,                   expenses in accordance with Article 24 of Annex X to
                                                                         the Staff Regulations,
— annul the decisions taken,
                                                                     — order the defendant to pay in full the difference between
                                                                         the expenditure actually incurred and payments from
— order the Commission of the European Communities to
                                                                         the Joint Sickness Insurance Scheme,
     pay the applicant all the costs of the proceedings,
     including, in particular, travel and subsistence expenses       — declare that the General Provisions implementing the
     and the fees of the applicant's adviser.                             first and second paragraphs of Annex X to the Staff
                                                                          Regulations are unlawful,
Pleas in law and main arguments adduced in support:
                                                                     — order the defendant to pay all the costs.
The applicant, a company incorporated under Belgian law
which has been engaged for nine years in contractual                 Pleas in law and main arguments adduced in support:
relations with the Commission involving the placing of
temporary workers at the latter's disposal with a view to the        The applicant pleads, first, infringement of Article 24 of
performance by them of miscellaneous duties in the                   Annex X to the Staff Regulations. He points out that that
premises of the Commission, contests the Commission's                Article contains no mention of any restriction or ceiling on
decision, adopted in the context of the invitation to tender         reimbursement, regardless of the expenditure actually
issued in that field on 13 July 1994, to award the contract to       incurred, and that, as a result, as soon as an official becomes
other undertakings.                                                  eligible under Article 24 of Annex X to the Staff
                                                                     Regulations, he is entitled to reimbursement of all expenses
It maintains that the contested decision is vitiated by the          not covered by the Joint Sickness Insurance Scheme.
absence of any express statement of reasons, to which
particular importance attaches in public contract matters by         The applicant also maintains that the General Provisions
virtue of Article 12 of Directive 92/50/EEC relating to the          implementing the first and second paragraphs of Annex X to
coordination of procedures for the award of public service           the Staff Regulations are unlawful, inasmuch as they
contracts, which obliges the contracting authority to inform         provide for an 'excessiveness threshold' beyond which
any eliminated tenderer who so requests of the reasons for           medical expenses are not reimbursed. He considers that
rejection of his tender and of the name of the successful            limitation to be contrary to Article 24 of Annex X, which
tenderer.                                                            provides for cover in respect of the full difference between
                                                                     expenditure actually incurred and payments from the Joint
In the applicant's view, the contested decision breaches the          Sickness Insurance Scheme, and that, consequently, the
principles of equality and impartiality, inasmuch as the              General Provisions are unlawful .
 defendant institution failed to apply the criterion of the most
economically advantageous tender, in the light of the
conditions laid down in the specification.
                                                                     Action brought on 10 February 1995 by Efthimia Bitha,
                                                                     Vasiliki Bitha and Georgios Bitha against the Commission
                                                                                     of the European Communities
Action brought on 8 February 1995 by Marco                                                   (Case T-23/95 )
 Mazzocchi-Alemanni against the Commission of the                                             ( 95/C 87/34 )
                    European Communities
                        (Case T-21/95 )                                              (Language of the case: French)
                          ( 95/C 87/33 )
                                                                     An action against the Commission of the European
                                                                      Communities was brought before the Court of First
                (Language of the case: French)
                                                                      Instance of the European Communities on 10 February
                                                                      1995 by Efthimia Bitha, Vasiliki Bitha and Georgios Bitha,
An action against the Commission of the European                     residing in Thessaloniki ( Greece), represented by Jean-Noel
 Communities was brought before the Court of First                    Louis, of the Brussels Bar, with an address for service in
Instance of the European Communities on 8 February 1995               Luxembourg at the offices of Fiduciaire Myson Sari, 1 Rue
by Marco Mazzocchi-Alemanni, residing in Libreville                   Glesener .
 ---pagebreak---  No C 87/16          | EN |               Official Journal of the European Communities                                     8 . 4 . 95
The applicant claims that the Court should:                          1995 by Nicolas Wegter, residing in Brussels, represented by
                                                                     Georges Vandersanden, of the Brussels Bar.
— annul the decision of the Commission of 26 April 1994
    refusing the applicants the benefits payable pursuant to         The applicant claims that the Court should:
    Article 73 (2 ) of the Staff Regulations in the event of the
    accidental death of an official,                                 — declare the action admissible and well-founded,
— order the defendant to pay the costs .                             — consequently, annul the decision rejecting the
                                                                         applicant's application for the vacant post COM/030/94
                                                                         of Director in Directorate A — Information and
Pleas in law and main arguments adduced in support:
                                                                         Communication Strategy (DG X/A), and the resulting
                                                                         decision to appoint another candidate to that post,
The applicants plead in support of their action
infringements of Article 73 of the Staff Regulations and of          — order the defendant to pay all the costs .
Articles 2 and 4 of the Rules on the Insurance of Officials of
the European Communities against the risk of Accident and
of Occupational Disease ('the Rules'), together with a               Pleas in law and main arguments adduced in support:
manifest error of assessment.
                                                                     The applicant, a Grade A 3 official in the Spokesman's
The applicants, being the persons entitled under Krinio              Service of the Commission, contests the rejection of his
Bitha deceased, a former official of the Commission, state           application for the post of Director of Directorate A —
that she was the victim of a fatal underwater diving accident.       Information and Communication Strategy.
The applicants applied for the benefits payable under the
Staff Regulations on the accidental death of a Community             Having submitted his application for the post in question
official. The application was rejected on the ground that,           and received confirmation from the appointing authority
according to the third indent of Article 4 (1 ) ( b) of the Rule's,  that two other applications 'may be taken into
accidents resulting from underwater exploration are not              consideration in this instance', he learned that the post had
covered by Article 73 of the Staff Regulations .                     been allocated to an external candidate .
The applicants maintain that, under Article 73 of the Staff          He maintains that the decisions at issue are vitiated by the
Regulations, officials of the European Communities are               absence of a statement of reasons, or, at the very least, by
insured, from the date of their entering the service, against        inadequate and erroneous reasoning. He contends that the
the risk of occupational disease and of accident. Inasmuch           Commission completely failed to show, in its response to his
as the risks excluded from insurance under Article 4 ( 1 ) ( b)      complaint, that it had compared the merits, abilities and
of the Rules, including accidents resulting from underwater          experience of the successful candidate with those of the
exploration, derogate from the general principle of cover,           other candidates, having regard to the requirements set out
they are to be strictly interpreted .                                in the notice of vacancy, despite the fact that such
                                                                     comparative analysis was particularly necessary in the
                                                                     circumstances, since the successful candidate did not have a
The accident which cost Miss Bitha her life occurred during
a diving exercise and not in the course of underwater                university degree.
exploration.
                                                                    With regard to the filling of an A 2 post, there has also been
                                                                     an infringement of Article 5 of the Staff Regulations, in that
Consequently, the contested decision is vitiated by a                the defendant institution failed to show that the professional
manifest error of assessment and was adopted in breach of            experience of the successful candidate can be regarded as
the provisions of Article 73 of the Staff Regulations and            experience equivalent to a university degree.
Articles 2 and 4 of the Rules .
                                                                    The applicant further pleads an infringement of the
                                                                     appointment procedure. He complains that the appointing
                                                                     authority departed on two occasions from the opinion of the
                                                                    Advisory Committee on Staff Reports ( CCN) by favouring
                                                                    the sole external candidate instead of the internal candidates
                                                                    regarded as meritorious, and that it took the second opinion
Action brought on 15 February 1995 by Nicolas Wegter                of the CCN as the basis for its view that it was only the
  against the Commission of the European Communities                external candidate who fulfilled the criteria set out in the
                         (Case T-27/95 )                            notice of vacancy and had the requisite professional
                          ( 95/C 87/35 )                            experience.
                                                                    Finally, the applicant asserts that the exceptional nature of
               (Language of the case: French)                       the procedure provided for in Article 29 ( 2) of the Staff
                                                                    Regulations has been disregarded, and that there has been a
                                                                     breach of the principle of non-discrimination.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 15 February