CELEX: C1999/226/78
Language: en
Date: 1999-08-07 00:00:00
Title: Case T-146/99: Action brought on 15 June 1999 by Rui Teixeira Neves against the Court of Justice of the European Communities

C 226/44              EN                     Official Journal of the European Communities                                         7.8.1999
Action brought on 12 June 1999 by Hortiplant, S.A.T.                    In support of its claims, the applicant alleges that:
     against Commission of the European Communities
                                                                        — Article 24(2) of Regulation No 4253/88 (2) was misapplied
                                                                             in respect of the applicant’s actings: first, in that there
                        (Case T-143/99)                                      were no irregularities of the kind complained of by the
                                                                             Commission, secondly, because that provision does not
                                                                             provide a proper legal basis for a withdrawal of the type
                        (1999/C 226/77)                                      being contested, since its wording only refers to reduction
                                                                             or suspension of aid;
                  (Language of the case: Spanish)                       — infringement of the rights of the defence in as much as
                                                                             procedural requirements were not in the least observed
                                                                             during the proceedings, particularly in view of the criminal-
An action against the Commission of the European Communi-                    law consequences to which they could give rise. First, the
ties was brought before the Court of First Instance of the                   Commission’s letter of 3 April 1995 which, in the
European Communities on 12 June 1999 by Hortiplant, S.A.T.,                  applicant’s view, could be regarded as a statement of
whose registered office is at Amposta, Tarragona, (Spain),                   objections, was vitiated by its lack of clarity in its
represented by Concepción Fernändez Vicién and Eva Contre-                  accusations of alleged irregularities. Furthermore, the Com-
ras Ynzenga, of the Cuatrecasas Chambers, 78 Avenue d’Au-                    mission, again according to the applicant, took into
derghem, 1040 Brussels.                                                      consideration a number of documents which had been
                                                                             sent to it by mistake, not least because it had not stated
                                                                             that the justification provided in respect of the staff
The applicant claims that the Court should:                                  expenditure was inadequate. Moreover, there is no evidence
                                                                             that the defendant followed the procedure provided for in
                                                                             Article 24(1) of Regulation 4253/88 for suspension or
— annul the Commission’s decision of 4 March 1999 with-                      reduction of aid.
     drawing the aid granted to Hortiplant, S.A.T.;
— in the alternative, annul in part that decision and pro-              Finally, the applicant alleges breach of the principle of
     portionally reduce the aid granted by Commission Decision          proportionality and the obligation of providing a statement of
     C (92) 3125 of 4 March 1999;                                       the reasons on which a measure is based.
— order the Commission to pay the costs.
                                                                        (1) Council Regulation (EEC) No 4256/88 of 19 December 1988
                                                                            laying down provisions for implementing Regulation (EEC)
                                                                            No 2052/88, as regards the EAGGF Guidance Section (OJ 1988
                                                                            L 374, p. 25).
Pleas in law and main arguments
                                                                        (2) Council Regulation (EEC) No 4253/88 of 19 December 1988
                                                                            laying down provisions for implementing Regulation (EEC)
                                                                            No 2052/88 as regards coordination of the activities of the
The present action has been brought against the decision of                 different Structural Funds between themselves and with the
the Commission of 4 March 1999 withdrawing the aid granted                  operations of the European Investment Bank and the other
to the applicant undertaking by virtue of Commission Decision               existing financial instruments (OJ 1988 L 374, p. 1).
C (92) 3125 of 4 March 1999 relating to aid granted by the
EAGGF Guidance Section, pursuant to Council Regulation
(EEC) No 4256/88 (1), for project no 9 ES.06.022 ‘Initiative
consisting in a pilot project to demonstrate a new high
efficiency production system for nurseries: application to
ornamental and woodland species’.
This project was born of research carried out by the applicant
which showed improved vegetative and productive behaviour               Action brought on 15 June 1999 by Rui Teixeira Neves
in seedlings obtained in a new type of container, known as a            against the Court of Justice of the European Communities
‘Fifton Plant’ and which appeared particularly suited to the
production of ornamental and woodland tree and shrub
species which required specific soil depths in order to take                                       (Case T-146/99)
root and develop properly.
                                                                                                   (1999/C 226/78)
The reason for the contested decision is based on a number of
financial and accounting irregularities which, in the applicant’s
view, took place at the drafting stage of the aforementioned                              (Language of the case: Portuguese)
project; said irregularities concern, in particular, its co-
financing by the undertaking Resteya, and also the justification
of certain staff expenditure and of the invoices paid to the            An action against the Court of Justice of the European
undertakings Gentforsa and Cedarcliff.                                  Communities was brought before the Court of First Instance
 ---pagebreak--- 7.8.1999                EN                   Official Journal of the European Communities                                      C 226/45
of the European Communities on 15 June 1999 by Rui                      2.     Breach of the principle of equal treatment and of the
Teixeira Neves, residing at 10 Am Gronn, L-5222 Sandweiler,             objectivity of selection. Absence of points. According to the
represented by Adriano Encarnação, of the Oporto Bar, with             applicant the criteria and procedure adopted for the oral
an address for service in Luxembourg at the applicant’s address.        examination also breach the principle of equal treatment of all
                                                                        the candidates and of the objectivity in the selection made by
The applicant claims that the Court should:                             the Board, inasmuch as the questions put being too easy,
                                                                        general, descriptive and practical in nature, discriminated
1. annul the decision of the Selection Board in Competition             against the better qualified candidates, and thus did not permit
    No CJ 41/988 of 15 March 1999 not to include the                    the slightest objective and effective comparison to be made of
    applicant in the list of suitable candidates;                       the candidates’ merits, as attested by the fact that no points
                                                                        were awarded.
2. annul all the acts subsequent to the abovementioned
    competition, including the appointment of the candidate             3.     Inadequate, defective and contradictory statement of
    selected to fill the post of Legal Adviser on Administrative.       reasons. One of the reasons for deciding to exclude the
    Matters;                                                            applicant was his limited experience of contracts which
                                                                        according to the applicant, contradicts the decision of the
3. order the defendant to, pay the costs, including those               Selection Board itself to admit him to the oral examination on
    incurred by the applicant.                                          the ground that the applicant met all the admission conditions
                                                                        set down in the competition notice, including his extensive
                                                                        experience in duties related to those of the post to be filled.
Pleas in law and main arguments                                         Moreover, not only does the failure to award either overall or
                                                                        partial points to the candidates, as acknowledged in the
                                                                        statement of reasons, breach the principle of the objectivity of
1.     Breach of the competition notice. According to the               the Board’s selection, the fact that the statement of reasons
applicant, the content of the oral examination exceeded the             makes no mention whatsoever of the results of the candidates
framework set out in the competition notice and was not in              constitutes a fatal defect.
keeping with the purposes of the examination and of the
competition. The fact that the relative importance accorded to,
and time allowed for, the optional papers (contract law and             4.     Misuse of powers. According to the applicant, the
public tendering procedures) was the same as that for the               appointing authority’s intention from the start was not to
main compulsory papers (Community law and law of the                    organise a fair competition but to prepare the ground for the
Community civil service) is contrary to the provisions of the           appointment of a pre-selected candidate on the basis of criteria
notice according to which knowledge of public tendering law             unrelated to the duties involved and, as a precaution, to
was merely desirable, and did not constitute a condition sine           eliminate over-qualified candidates, so that the content of the
qua non for admission to the oral examination (and a fortiori           oral examination was chosen by the Board with the purpose
for inclusion in the list of suitable candidates).                      of preventing the best lawyers from succeeding.