CELEX: C1996/294/24
Language: en
Date: 1996-10-05 00:00:00
Title: Action brought on 22 July 1996 by Dominique-François Bareth against the Committee of the Regions (Case T-110/96)

No C 294/ 12          EN                  Official Journal of the European Communities                                       5 . 10 . 96
Action brought on 17 July 1996 by Gilberte Gebhard                   auxiliary staff within the meaning of the conditions of
               against the European Parliament                       employment of other servants, a status that the applicant
                                                                     cannot have in view of the terms on which she was
                       ( Case T- 109/96 )
                                                                     employed . In contrast to the conditions laid down in
                         ( 96/C 294/23 )                             Article 52 of the conditions of employment of other
                                                                     servants, she had been engaged frequently every year since
                (Language of the Case: French)                       1976 . In addition, the duties that she assumed do not fall
                                                                     within the circumstances referred to in Article 52 ( a ).
An action against the European Parliament was brought
before the Court of First Instance of the European                   Secondly, Article 78 of the conditions of employment of
Communities on 17 July 1996 by Gilberte Gebhard,                     other servants cannot in any way provide a basis for
resident in Heidelberg ( Germany ), represented by Thierry           Parliament's unilateral adoption of rules specific to
Schmitt and Pierre Soler-Couteaux, of the Strasbourg                 conference interpreters having the status»of auxiliary staff
Bar .
                                                                     for the purposes of the conditions of employment of other
                                                                     servants . It is not its task to determine unilaterally the status
The applicant claims that the Court should :                         of auxiliary staff, since that power belongs exclusively to the
                                                                     Council of Ministers under Article 212 of the Treaty as
— annul the decision of 10 June 1996 taken by the
                                                                     amended by Article 24 of the Merger Treaty.
     Secretary-General of the European Parliament rejecting
     her complaint,
                                                                     Finally, the applicant's liability to Community tax results
                                                                     solely from her accepting, by way of agreement, the
— declare income earned by her to be exempt from                     conditions laid down by Parliament. An agreement
     Community tax and order repayment of tax paid,                  constitutes a totally inadequate legal basis, in the area of
     together with interest at the rate laid down by law,            taxation, for justifying the imposition of Community tax
                                                                     and exemption from national income tax, since
— order the European Parliament to pay the costs .                   determination of the tax status of residents is pre-eminently
                                                                     an aspect of State sovereignty . A Community institution 's
                                                                     power to organize its own affairs cannot prejudice
Pleas in law and main arguments
                                                                     Article 13 of the Protocol on the privileges and immunities
                                                                     of the European Communities and the regulations giving
The applicant contests the decision of the Secretary-General         effect to it .
of the European Parliament rejecting her complaint against
the levying of Community tax on remuneration paid in
respect of her duties as a conference interpreter at the
Parliament .
The applicant was engaged from 6 to 9 November 1 995 and
from 11 to 14 December 1995 as a conference interpreter
for meetings organized by the European institutions in
Luxembourg ( in this case the European Parliament ).                 Action brought on 22 July 1996 by Dominique-Francois
According to the letters appointing her and confirming her                  Bareth against the Committee of the Regions
engagement, she was to perform her duties as an interpreter                                    ( Case T-110/96 )
pursuant to the rules on remuneration , allowances and                                           ( 96/C 294/24 )
expenses payable to conference interpreters applicable to
the institution for which she performed the services .
Parliament took the contested decision when replying to the                           (Language of the case: French)
invoices corresponding to the above dates, in which the
applicant had expressly requested payment of the
remuneration due to her without deduction of Community               An action against the Committee of the Regions was
tax . The legal basis for that decision was that the applicant       brought before the Court of First Instance of the European
was subject to the ' Rules of the European Parliament                Communities on 22 July 1996 by Dominique-Francois
applicable to auxiliary session interpreters adopted under           Bareth, residing in Brussels , represented by Jean-Noel Louis,
Article 78 of the conditions of employment of other servants         Thierry Demaseure and Ariane Tornel of the Brussels Bar,
jof the European Communities'. Since Article 78 falls within         with an address for service in Luxembourg at the office of
Title III of the conditions of employment of other servants,         Fiduciaire Myson SARL, 1 , rue Glesener .
which deals with auxiliary staff, it follows, according to the
Parliament, that staff recruited on the basis of that
provision, must, like all auxiliary staff, be liable to              The applicant claims that the Court should :
 Community tax .
                                                                     — annul the decisions not to appoint the applicant to one of
In the applicant's view, those reasons for refusal are                   the posts filled at the end of internal competition
manifestly unlawful . First, Article 78 applies only to                  A/02/95 ,
 ---pagebreak--- 5 . 10 . 96            EN                 Official Journal of the European Communities                                No C 294/ 13
— annul , in so far as is necessary, the appointment                 include 'documentary evidence relating to the candidate's
     decisions adopted at the end of internal competition            studies and vocational training and also his professional
     A/02/95 ,                                                       experience', the selection board requested some candidates
                                                                     working in the Secretariat General of the CR to supply
— order the defendant to pay the costs .                             additional supporting documents in order to regularize their
                                                                     incomplete files . Furthermore , it is not disputed that all the
                                                                     successful candidates appointed to the posts to be filled
Pleas in law and main arguments                                      came from within the CR . By contrast, none of the
                                                                     successful candidates from the organizational structure
The applicant, a Grade A 6 official of the Economic and              common to the ESC and the CR was appointed .
Social Committee ('ESC') and a successful candidate in
internal competition A/02/95 organized by the Committee
of the Regions (' CR') in order to fill eight principal
administrator posts, challenges the defendant's refusal to
appoint him to one of those posts .
First of all , he alleges breach of the competition notice in        Action brought on 26 July 1996 by Jean-Claude Seche
that Article IV ( c ) of the notice , concerning the oral tests,       against the Commission of the European Communities
refers to an examination covering, on the one hand, the
candidate's general knowledge and, on the other, his specific                                Case T-115 /96 )
knowledge relevant to the vacant posts for which he has                                       96/C 294/25
indicated a preference . The applicant notes in this respect
that at the time when the competition was started , the posts
for which the candidates could express a preference were all                        (Language of the case: French)
occupied by members of the temporary staff of the CR who
were all candidates in the competition . However, the
competition notice does not provide for the priorities               An action against the Commission of the European
indicated by candidates for vacant posts to be used for other        Communities was brought before the Court of First
purposes , and in particular as a criterion for selection by the     Instance of the European Communities on 26 July 1996 by
administration . Consequently, a factor intended for use as          Jean-Claude Seche, residing in Brussels, represented by Eric
an aid in the oral test organized by the selection board could       Boigelot, of the Brussels Bar, with an address for service in
not be used by the appointing authority to derogate from the         Luxembourg at the Chambers of Louis Schiltz, 2 rue du Fort
order of the candidates ' merits .                                   Rheinsheim .
Second, the applicant alleges infringement of Article 25 of          The applicant claims that the Court should:
the Staff Regulations in so far as the appointments decided
on as a result of the internal competition were motivated,           — annul the Commission 's decision of 1 December 1995
not by the desire to recruit the officials of the highest                rejecting his request of 30 August 1995 ,
standard of ability, efficiency and integrity, but simply by
the decision in principle to regularize the situation of
members of the temporary staff.                                      — order the Commission to reconstitute his career with
                                                                         effect from 1 June 1991 ,
According to the applicant, it is also apparent that the CR
infringed Article 25 of the Staff Regulations by failing to
                                                                     — in the alternative, order the Commission to pay him a
                                                                         differential allowance,
provide sufficient reasons for its decision to derogate from
the list of suitable candidates drawn up in accordance with
Article V of the notice of internal competition in question .        — order the Commission to pay him ECU 1 in symbolic
The obligation to provide reasons was all the more                       compensation for non-material damage,
 imperative in the circumstances since the Bureau of the CR
 departed from the Secretary-General 's proposed                     — order the Commission to pay the costs .
 appointments .
 Finally, the applicant considers that the decision to treat as a     Pleas in law and main arguments
 selection criterion the question whether a candidate
 belonged to the CR and the priorities indicated for certain          The applicant, an official in the Commission's Legal Service ,
 posts resulted in failure to ensure equal treatment for the          who has 14 years' seniority in Grade A 3 and has been
 successful candidates, which amounted to misuse of powers .          performing the duties of principal legal adviser since 1991 ,
 He notes in that regard that, after settling the criteria for        challenges the Commission 's refusal of his request to the
 admission to the competition and after the deadline had              appointing authority to upgrade his duties to A 2 , grant him,
 passed for submitting applications which were , in                   in the alternative, a temporary posting pending his
 accordance with Article V of the competition notice, to              promotion , reconstitute his career and pay him the