CELEX: C1999/281/55
Language: en
Date: 1999-10-02 00:00:00
Title: Case T-180/99: Action brought on 6 August 1999 by Vassilios Tsarnavas against the Commission of the European Communities

2.10.1999              EN                      Official Journal of the European Communities                                      C 281/29
Action brought on 6 August 1999 by the company                            Action brought on 6 August 1999 by Vassilios Tsarnavas
Sud Pesca against the Commission of the European                            against the Commission of the European Communities
                          Communities
                                                                                                   (Case T-180/99)
                         (Case T-179/99)
                                                                                                  (1999/C 281/55)
                         (1999/C 281/54)
                                                                                             (Language of the case: French)
                   (Language of the case: Italian)                        An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 6 August 1999 by Vassilios
                                                                          Tsarnavas, residing in Brussels, represented by Nicolas Lhoëst,
An action against the Commission of the European Communi-                 of the Brussels Bar, with an address for service in Luxembourg
ties was brought before the Court of First Instance of the                at the offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
European Communities on 6 August 1999 by the company
Sud Pesca, represented by Gianfranco Amenta and Massimo
Merola, of the Palermo and Rome Bars, with an address for                 The applicant claims that the Court should:
service in Luxembourg at the chambers of Alain Lorang, 51
Rue Albert 1er.
                                                                          — annul the implicit decision of the Commission rejecting
                                                                              the complaint lodged by the applicant under Article 90(2)
                                                                              of the Staff Regulations by which he contested first, the
The applicant claims that the Court should:                                   implicit rejection of his request for rectification of his
                                                                              administrative status as regards the date on which the
— annul the contested decision;                                               Commission’s decision concerning his reassignment took
                                                                              effect, and, second, the list of officials promoted to grade
— order the Commission to pay the costs of the present                        A 4, published in ‘Administrative Notices’ No 1049 of
    action, including the applicant’s legal costs.                            30 October 1998, in which his name did not appear;
                                                                          — consequently, order that the 1998 procedure for pro-
                                                                              motion to grade A 4 is to be annulled as regards the
                                                                              applicant;
Pleas in law and main arguments
                                                                          — order the defendant to pay all the costs.
The applicant contests the decision of 24 April 1999, Ref.
SG(99)D/2842, by which the Commission rejected an appli-
cation for exemption from post-clearance recovery, alterna-               Pleas in law and main arguments
tively, for remission, of customs duties relating to two
consignments of tuna imported from Turkey under IM4
certificates nos 356/N dated 22 June 1994 and 193/U dated                 The applicant, a grade A 5 official of the Commission of the
29 May 1995.                                                              European Communities, was seconded, as Vice-President of
                                                                          the local Staff Committee, from DG IV to the Staff Represen-
                                                                          tation unit attached to DG IX. On 2 July 1997 the Commission
In support of its claim, the applicant argues that the Com-               decided to reassign the applicant to DG IV with retroactive
mission breached and wrongly applied Article 220(2)(b)                    effect from 1 May 1997. That decision was not notified to the
and Article 239 of the Community Customs Code. In this                    applicant until 21 October 1997, on which date he resumed
connection, the applicant is of the view that the Turkish                 his duties in DG IV. On 30 October 1998 the administration
authorities, even after the checks carried out by the Community           published in ‘Administrative Notices’ No 1049 the list of
delegation in June 1996, confirmed the validity of the ATR.1              officials promoted to grade A 4, in which the applicant’s name
certificates issued. Even if it were possible that those authorities      did not appear.
issued the certificates of origin in error, such an error could be
characterised as being a ‘substantive error’.
                                                                          In support of his application, the applicant advances the
                                                                          following pleas:
The applicant maintains, inter alia, that there is in the present
                                                                          — absence of a statement of reasons;
case a ‘special situation’ and that no fraud or obvious
negligence can be imputed to it.
                                                                          — delay on the part of the Commission in sending to the
                                                                              applicant the decision concerning his reassignment;
                                                                          — breach of the principle of non-retroactivity and misuse of
                                                                              powers;
 ---pagebreak--- C 281/30               EN                      Official Journal of the European Communities                                       2.10.1999
— failure to comply with the duty to have regard for the                  — annul and/or declare void the call for tenders, the invitation
    welfare and interests of officials;                                        and consequently the whole selection procedure, or, in any
                                                                               event, annul the procedure itself and/or declare it void,
— prejudice caused to the applicant as a result of his
    secondment to the Staff Representation unit, contrary to
    Article 1 of Annex II to the Staff Regulations.
                                                                          in the alternative:
By adopting a reassignment decision having retroactive effect,
when there was no justification or need for such retroactivity            — establish and declare the Commission to be liable for the
and when that retroactivity did not correspond to the situation                losses and damage sufered by the applicant by reason of
in reality, and by attaching to that decision an artificial date on            and, in any event, as a result of its participation in the
which it was to come into effect, being 4 days prior to the                    procedure.
crucial date, the Commission indubitably caused the applicant
to suffer damage.
For the purposes of the 1998 promotion procedure, therefore,
the applicant was no longer attached to the Staff Represen-               Pleas in law and main arguments
tation unit, whereas, if the reassignment had officially taken
effect after 5 May 1997, he would have been certain, in the
context of the 1998 promotion procedure, of being promoted
by DG IX or, failing that, at least of being awarded priority             The applicant in this case is the research centre which devised
points which DG IV would have had to take into account                    the ‘PROSCAP’ project to support active citizenship in the
the following year. Consequently, the Commission failed to                Pisa area, submitted as number 15 under the European
comply with its duty to have regard for the welfare and                   Commission’s pilot action ‘Local capital for social purposes’.
interests of officials and perpetrated a manifest misuse of               By the contested decision the defendant rejected the project
powers.                                                                   claiming to have calculated that the operating costs of the
                                                                          ‘initial tender’ were more than 20 % of the total budget,
                                                                          contrary to the requirements of the rules applicable.
By failing to give reasons for the implicit decisions which it
adopted rejecting the applicant’s request and complaint, the
Commission infringed Article 25 of the Staff Regulations.
                                                                          In support of its claims the applicant submits that the operating
                                                                          costs of the project are not more than 18 % of the total amount
                                                                          of the budget requested. It is claimed in that connection that
                                                                          the Commission adopted the contested decision on the basis
                                                                          of irrelevant economic data deriving from the application file,
                                                                          thus breaching established rules for the tendering procedure.
                                                                          The defendant therefore excluded the applicant, erroneously
Action brought on 9 August 1999 by Centro di Ricerca e                    taking as the basis for its assessment of the final figure, not the
Documentazione Febbraio 74 against the Commission of                      project completed on 5 March 1999, but the application file
                  the European Communities                                submitted on 15 October 1999, which had the different
                                                                          purpose and object of providing the Commission with infor-
                        (Case T-181/99)                                   mation about the professional and financial suitability of the
                                                                          applicant body, the socio-economic background against which
                                                                          the project would be carried out and the possible quality
                        (1999/C 281/56)                                   of the mechanism proposed for the selection, control and
                                                                          management of individual appropriations.
                   (Language of the case: Italian)
An action against the Commission of the European Communi-                 On this basis the applicant maintains that the contested
ties was brought before the Court of First Instance of the                decision must be considered flawed and unlawful for breach
European Communities on 9 August 1999 by Centro di                        of procedural rules and of the duty of care in administrative
Ricerca e Documentazione Febbraio 74, represented by Ugo                  proceedings, erroneous, illogical and not in conformity with
Mastelloni, of the Rome Bar, with an address for service in               previous acts and decisions of the Commission itself.
Luxembourg at the Chambers of Yves Prussen, 2, Place
Winston Churchill.
                                                                          It also submits that the invitation to tender and to submit
The applicant claims that the Court should:                               proposals under the pilot action ‘Local capital for social
                                                                          purposes’ did not in any way stipulate that possible flaws in
— annul and/or declare void the decision of the European                  the application file could constitute reasons for excluding one
    Commission — DG V — Employment and European                           of the tenderers from the procedure.
    Social Fund — Political development and coordination
    under Article 6 of the ESF, notified by formal letter 8096
    of 21 June 1999 to exclude the applicant from the
    tendering procedure for the pilot action ‘Local capital for
    social purposes’, and all connected and consequential acts
    prejudicial to the interests of the applicant,