CELEX: C1996/354/45
Language: en
Date: 1996-11-23 00:00:00
Title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 16 October 1996 in Case T-36/94: Alberto Capitanio v. Commission of the European Communities (Officials - Reinstatement - Determination of the level of a post - Act adversely affecting an official)

23 . 11 . 96           EN                Official Journal of the European Communities                                 No C 354/23
     Member State such as the second paragraph of                         law and, in particular, with the Court's findings as to
     Article 29 of Law No 428 of 29 December 1990                         unacceptable requirements of proof in Case 199/82 ( San
     complies with that principle, simply because the                     Giorgio ), cited above ? In particular, are the
     conditions laid down therein for reimbursement of fiscal             interpretation and application of Article 29 compatible
     charges linked to Community law, although restrictive                with Community law, on the basis of the assumption
     in comparison with the general rules of ordinary law, are            that ' it is a well-known fact that consumer taxes are
     however less onerous in comparison with the special                  passed on' presumptive evidence is deemed to be
     conditions for reimbursement laid down in the third                  sufficient proof of passing on and therefore for the claim
     paragraph of Article 29 ?                                            for reimbursement to be dismissed ?
3 . Do the abovementioned fundamental principles of the             5 . In consequence, is it compatible with Community law
     Community order preclude the adoption by a Member                    for the national court or its expert witness to establish
     State — after numerous judgments of the Court                        that charges have been passed on , relying on those mere
     declaring various charges relating to customs duties on              presumptions, which are claimed to be evidence freely
     imports, manufacturing taxes, consumer taxes, sugar                  assessed by the court, thus systematically excluding
     premium and state taxes to be incompatible with                      applications for reimbursement, as is happening in
     Community law — of a procedural provision such as                    practice, with the result that the debtor
     Article 29 of Law No 428 , which specifically reduces the            Amministrazione never acknowledges that it has to
     possibilities of bringing proceedings for recovery of                make repayment ?
     charges which were wrongly levied in breach of
     Community law ?                                                6 . May a rule such as that laid down in the fourth and
                                                                          eighth paragraphs of Article 29 , establishing procedural
4 . Is such a law as that — supposedly introduced in order                formalities ( for example, the requirement to notify
     to make national law comply with the precepts of the                 particular departments of the debtor authority ) which
     Court of Justice — which was passed three and a half                 were never contemplated in previous cases of
     years late following the judgments of the Court in                   reimbursement considered under the relevant general
     question, thus further unjustly enriching the State                  rules, be introduced and may it be interpreted with
     responsible for the delay, compatible with Community                 retrospective effect ?
                                                   COURT OF FIRST INSTANCE
JUDGMENT OF THE COURT OF FIRST INSTANCE                             Directorate E ( East and Southern Africa ) of
                      of 16 October 1996                            Directorate-General VIII ( Development ), of the decision of
                                                                    the Commission classifying that position as a grade A 5/A 4
in Case T-36/94 : Alberto Capitanio v. Commission of the            post, of the decision to annul the vacancy notice for that post
                   European Communities C )                         in order to allow the reinstatement of an official who had
(Officials — Reinstatement — Determination of the level of          taken leave on personal grounds, and of all subsequent
         a post — Act adversely affecting an official)              and/or connected decisions adopted by the Commission in
                         ( 96/C 354/45 )                            consequence of the aforementioned decisions , in particular
                                                                    the decision rejecting the applicant's application for the post
                                                                    and the decision appointing Mr G. to that post — the Court
                                                                    of First Instance ( Fourth Chamber ), composed of: K.
                                                                    Lenaerts, President, and P. Lindh and J. D. Cooke , Judges; J.
                 (Language of the case: French)                     Palacio Gonzalez, Administrator, for the Registrar, has
                                                                    given a judgment on 16 October 1996 , in which it:
In Case T-36/94 : Alberto Capitanio, an official of the             1 . dismisses the application;
Commission of the European Communities, residing in
Brussels, represented by Jean-Noel Louis, Veronique
Leclercq, Greta-Fran^oise Parmentier and Ariane Tornel, of          2 . orders the Commission to pay the costs.
the Brussels Bar, with an address for service in Luxembourg
at the offices of Fiduciaire Myson Sari, 1 Rue Glesener, v.
Commission of the European Communities ( Agent: Ana                 f 1 ) OJ No C 76 , 12 . 3 . 1994 .
Maria Alves Vieira ) — application for annulment of the
decision of the Commission concerning the drawing-up and
publication of vacancy notice COM/022/93 for the post of
Head of Unit 4 (Technical group on infrastructure ) of