CELEX: C1999/246/18
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-167/99: Action brought on 20 April 1999 by the European Parliament against Société d'aménagement et d'équipement de la région de Strasbourg (Development and installation company for the region of Strasbourg - S.E.R.S.) and the City of Strasbourg

28.8.1999               EN                   Official Journal of the European Communities                                        C 246/9
Pleas in law and main arguments                                         Pleas in law and main arguments
Error of law on the part of the Court of First Instance as
                                                                        In basing its findings on incorrect premisses, namely, an
regards a misuse of powers and infringement of Article 176 of
                                                                        erroneous characterisation of certain facts, the Court of First
the EC Treaty (now Article 233 EC): the Commission maintains
                                                                        Instance reached a conclusion which unlawfully reduced the
that the mere fact that it decided — in consequence of the
                                                                        time-limit for submitting a complaint and prejudiced the rights
initial annulment of the appointment of Mr X — to withdraw
                                                                        of the defence. The Court of First Instance wrongly treated as
the vacancy notice and to replace it with another one cannot
                                                                        a complaint, within the meaning of Article 90(2) of the Staff
in itself be construed, under any circumstances, as tantamount
                                                                        Regulations, a letter from the appellant’s lawyer which clearly
to a misuse of powers without disregarding Article 176 of the
                                                                        shows that the appellant had not yet taken the decision to
EC Treaty itself and the separation of powers which must of
                                                                        submit a complaint.
necessity exist between the executive and the Community
judicature. The wide discretion enjoyed by the appointing
authority in defining the conditions governing access to a post
in accordance with the needs of the service cannot be called in
question, even where the recruitment procedure has been
partially annulled by a judgment of the Community judicature.
In order for it to be able to state that the new vacancy notice
was worded in an arbitrary or even wrongful manner, the
Court of First Instance should first have established the
irrelevance of the qualifications to which particular importance
was attached in the new vacancy notice as publicised.                   Action brought on 20 April 1999 by the European
                                                                        Parliament against Société d’aménagement et d’équipe-
                                                                        ment de la région de Strasbourg (Development and
(1) OJ C 160 of 5.6.1999, p. 19.                                        installation company for the region of Strasbourg —
                                                                                     S.E.R.S.) and the City of Strasbourg
                                                                                                (Case C-167/99)
                                                                                                (1999/C 246/18)
Appeal brought on 26 April 1999, by Corrado Politi
against the order made on 9 February 1999 by the Second                 An action against Société d’aménagement et d’équipement de
Chamber of the Court of First Instance of the European                  la région de Strasbourg (S.E.R.S.) and the City of Strasbourg
Communities in Case T-124/98 between Corrado Politi                     was brought before the Court of Justice of the European
             and the European Training Foundation                       Communities on 20 April 1999 by the European Parliament,
                                                                        represented by Timothy Millet, Head of Division in its Legal
                         (Case C-154/99 P)                              Service, and Olivier Caisou-Rousseau, also of that service,
                                                                        acting as Agents, with an address for service in Luxembourg at
                                                                        the General Secretariat of the European Parliament, Mail and
                          (1999/C 246/17)                               Registration Service, Bâtiment Tour, Office 017.
An appeal against the order made on 9 February 1999 by the
Second Chamber of the Court of First Instance of the European           The European Parliament claims that the Court should:
Communities in Case T-124/98 between Corrado Politi and
the European Training Foundation was brought before the                 1. order S.E.R.S. to pay penalties for fate completion from 9
Court of Justice of the European Communities on 26 April                    January 1998, the contractual date for completion of the
1999 by Corrado Politi, represented by Jean-Noël Louis,                     IPE IV building, until 14 December 1998 inclusive, the day
Gréta-Françoise Parmentier and Véronique Peere, of the Brus-                before that building was declared to be completed, or, in
sels Bar, with an address for service in Luxembourg at the                  the alternative, order S.E.R.S. to pay penalties for fate
offices of Fiduciaire Myson SARL, 30 Rue de Cessange.                       completion from such contractual date for completion as
                                                                            the Court may decide;
The appellant claims that the Court should:
                                                                        2. declare the delays after 9 January 1998, the contractual
     declare and rule that:                                                 date for completion of the IPE IV building, unjustified, and,
                                                                            accordingly, declare that the European Parliament is not
     — the order of the Court of First Instance of the European             liable to interim interest from that contractual date for
          Communities (Second Chamber) of 9 February 1999                   completion of the IPE IV building until 14 December 1998
          in Case T-124/99 Corrado Politi v European Training               inclusive, or, in the alternative, declare that the European
          Foundation is to be set aside;                                    Parliament is not liable to interim interest from such
                                                                            contractual date for completion as the Court may decide;
     — the case is to be referred back to the Court of First
          Instance for adjudication on the pleas advanced by the
          appellant in the substantive proceedings;                     3. annul the opinion of the College of conciliators;
     make the appropriate ruling as to costs.                           4. order the defendants to pay the costs.
 ---pagebreak--- C 246/10               EN                     Official Journal of the European Communities                                      28.8.1999
Pleas in law and main arguments                                          between officials must serve the objective set in Article 27 of
                                                                         the Staff Regulations of securing for the institution the services
The application is made on the basis of an arbitration clause            of officials of the highest standard of ability, efficiency and
and is founded on a standard contract governed by French                 integrity.
law.
Appeal brought on 10 May 1999 by the European Parlia-                    Appeal brought on 31 May 1999 by the Commission of
ment against the judgment delivered on 9 March 1999 by                   the European Communities against the judgment deliver-
the Fifth Chamber of the Court of First Instance of the                  ed on 25 March 1999 by the Fourth Chamber of the Court
European Communities in Case T-273/97 between Pierre                     of First Instance of the European Communities in Case
               Richard and European Parliament                           T-76/98 between Claudine Hamptaux and the Com-
                                                                                     mission of the European Communities
                        (Case C-174/99 P)
                                                                                                 (Case C-207/99 P)
                         (1999/C 246/19)
                                                                                                  (1999/C 246/20)
An appeal against the judgment delivered on 9 March 1999
by the Fifth Chamber of the Court of First Instance of the               An appeal against the judgment delivered on 25 March 1999
European Communities in Case T-273/97 between Pierre                     by the Fourth Chamber of the Court of First Instance of the
Richard and European Parliament was brought before the                   European Communities in Case T-76/98 between Claudine
Court of Justice of the European Communities on 10 May 1999              Hamptaux and the Commission of the European Communities
by the European Parliament, represented by João Sant’Anna, of           was brought before the Court of Justice of the European
its Legal Service, acting as agent, assisted by Denis Waelbroeck,        Communities on 31 May 1999 by the Commission of the
of the Brussels Bar, with an address for service in Luxembourg           European Communities, represented by Christine Berardis-
at the Secretariat General of the European Parliament, Mail and          Kayser and F. Duvieusart-Clotuche, of its Legal Service, acting
Registration Department, Tower Building, Office 017.                     as Agents, assisted by Denis Waelbroeck, lawyer, with an
                                                                         address for service in Luxembourg at the office of Carlos
The appellant claims that the Court should:                              Gómez de la Cruz, Wagner Centre, Kirchherg.
— set aside the judgment of the Court of First Instance of 9             The appellant claims that the Court should:
     March 1999 in Case T-273/97 between Pierre Richard and
     the European Parliament;                                            — declare the appeal admissible and well-founded;
— consequently, refer the case back to the Court of First                — consequently, annul the contested judgment and dismiss
     Instance;                                                                the respondent’s claim;
— reserve a decision as to costs until final adjudication.               — alternatively, refer the case back, in consequence, to the
                                                                              Court of First Instance;
Pleas and main arguments
                                                                         — reserve the costs.
Breach of Community law, specifically of Article 29 of the
Staff Regulations: in the judgment under appeal, the Court of            Pleas in law and main arguments
First Instance fundamentally changed the interpretation of
Article 29(1) of the Staff Regulations. Instead of taking the            Contradiction in the grounds of judgment and error of law
view that Article 29(1) provides for a procedure to fill a vacant        as regards the promotion procedure carried out by the
post, with separate rules — it being a question for the                  Commission: the Court of First Instance erred — and contra-
appointing authority whether they enable the most suitable               dicted its own findings of fact — in concluding that, according
person to be found — the Court of First Instance espoused the            to the promotion procedure carried out by the Commission,
view that Article 29 provides for a series of four separate              officials whose names had already appeared on the list of those
stages or phases, each of which must be formally initiated and           most deserving of promotion in the previous year but had not
closed before the appointing authority can move on to the                been promoted would automatically be included on the list of
next. The Court also took the view that, as from the moment              most deserving officials. It is apparent from the facts accepted
when a suitable candidate is discovered during the first stage           by the Court of First Instance itself that the names of such
under Article 29, the institution is no longer entitled to extend        officials do not automatically feature on that list and that they
the range of choice available by considering possibilities under         are not automatically promoted, since the Commission checks
other rules, laid down in Article 29(1)) of the Staff Regulations.       in each individual case to ensure that the officials concerned
In so doing, the judgment under appeal contravenes two of                have not ceased to be ‘meritorious’, that is to say, that they are
the fundamental principles which must be respected in the                still deserving of promotion, which necessarily involves an
case of any appointment of officials to vacancies: (i) the               examination of their comparative merits.
principle laid down in Article 7(1) of the Staff Regulations,
according to which all appointments must be made exclusively
in the interests of the service; (ii) the principle that all choices