CELEX: C1996/145/19
Language: en
Date: 1996-05-18 00:00:00
Title: Action brought on 13 March 1996 by Lars Bo Rasmussen against the Commission of the European Communities (Case T-35/96)

18 . 5 . 96           EN                   Official Journal of the European Communities                                    No C 145/9
      affords undertakings, to a certain extent, flexibility in        and the appointment of another candidate of Portuguese
      the way in which they draw up their accounts .                   nationality .
 The contested decision of the Commission infringes                    In support of his application the applicant alleges in
 Article 92 ( 1 ) of the EC Treaty; the assumption as to               particular that the contested decisions are vitiated by the
 the existence of favourable treatment which distorts                  following defects :
 competition and restricts trade at the expense of the State's
 finances is founded on errors of law, alternatively manifest          — breach of the rights of the defence, inasmuch as the
 errors in the assessment of the facts of the case . In                    administration did not take into account his right to be
 considering the question whether paragraph 82 f of the                    heard before taking the abovementioned decisions,
 EStDV may afford taxpayers an advantage in respect of
 interest, the Commission applied an erroneous standard of             — inadequate statement of reasons,
 comparison . The Commission's conclusions regarding the               — misuse of powers, inasmuch as, at least in so far as
 distortion of competition and restrictions on trade are
                                                                           concerns the Portuguese candidate finally selected, the
 illogical ; they are not based on verifiable findings of fact.            Council exceeded the criteria for filling the posts at issue .
                                                                           The applicant considers in this respect that the selected
                                                                           candidate does not possess the requisite experience,
                                                                      — misuse of powers , inasmuch as the appointment of the
                                                                           higher ranking officials of the Office for Harmonization
 Action brought on 11 March 1996 by José Gomes de Sa                       in the Internal Market, including the members of the
     Pereira against the Council of the European Union                     Boards of Appeal , was made in the context of a political
                         ( Case T-30/96 )                                  compromise .
                           ( 96/C 145/ 18 )
               (Language of the case: Portuguese)
                                                                      Action brought on 13 March 1996 by Lars Bo Rasmussen
An action against the Council of the European Union was                 against the Commission of the European Communities
 brought before the Court of First Instance of the European
 Communities on 11 March 1996 by José de Sa Pereira,                                              ( Case T-35 /96 )
residing at S. Joâo de Ver, represented by Augusto Cardoso,                                         ( 96/C 145/ 19 )
of the Oporto Bar, with an address for service at his
Chambers, 16-1 Dt° Rua Jornal Correio da Feira , P-4520                               (Language of tbe case: Frencb)
Santa Maria da Feira .
                                                                      An action against the Commission of the European
The applicant claims that the Court should :                          Communities was brought before the Court of First
                                                                      Instance of the European Communities on 13 March 1996
— annul the three decisions adopted by the Council of the             by Lars Bo Rasmussen, residing at Dalheim ( Grand Duchy
     European Union on 25 October 1 995 appointing the                of Luxembourg ), represented by Carlo Revoldini, of the
     two presidents and the members of the Boards of Appeal           Luxembourg Bar, with an address for service in
     of the Office for Harmonization in the Internal                  Luxembourg at his Chambers, 180 , Route de Longwy .
     Market,
                                                                      The applicant claims that the Court should :
— in the alternative, annul the decision appointing the
     members of the First Board of Appeal in its entirety or, if      annul :
     appropriate, in so far as concerns Dr Luis Manuel
     Chaves Fonseca Ferrâo,                                           — the Commission's decision cancelling the procedure
                                                                           under vacancy notice COM/ 116/94 in accordance with
— order the Council of the European Union to pay the                       Article 29 ( 1 ) ( a ) of the Staff Regulations,
     costs ,
                                                                      and, in so far as may be necessary,
— order the Council of the European Union to compensate
     the applicant for the damage caused to him by the                — the Commission's decision to reserve the post forming
     contested decisions in an amount to be decided by the                the subject-matter of vacancy notice COM/ 1 16/94 for a
     Court .                                                              national of a new Member State and to publish notice of
                                                                          open competition COM/A/929 ( Head of Unit V/F/3 ) in
                                                                          the C Series of the Official Journal of 1 June 1995 ,
Pleas in law and main arguments
                                                                      — the Commission's response, adopted on 14 December
The applicant, a Portuguese national, applied for the post of              1995 , rejecting the applicant's complaint of 14 July
member of one of the Boards of Appeal of the Office for                    1995 ;
Harmonization in the Internal Market. He challenges the
rejection of his candidature for the abovementioned post              order the defendant :
 ---pagebreak--- No C 145/ 10          EN                  Official Journal of the European Communities                                        18 . 5 . 96
— to pay compensation for the non-material damage                        reserving a post allocated to a Directorate-General to
    suffered, in the sum of Lfrs 300 000 or such other sum as            which a national of one of the new Member States could
    the Court may consider fair and reasonable,                          have been assigned.
— to pay the costs .                                                     Lastly, the applicant pleads misuse of powers in the
                                                                         present case .
Pleas in law and main arguments
The applicant, a grade A 5 official in the Commission's
Directorate-General for Employment, Industrial Relations
and Social Affairs, contests the withdrawal by the
appointing authority of that institution of the measures             Action brought on 14 March 1996 by Giuliana Gaspari
taken to organize the procedure in respect of vacancy notice                         against the European Parliament
COM/116/94 with a view to filling the post of Head of the                                     ( Case T-36/96 )
Health Promotion and Disease Surveillance Unit, and the                                         ( 96/C 145/20 )
decision to fill that post by means of an open competition
and to reserve it for a national of one of the new Member
States .                                                                              (Language of the case: French)
In support of his case, the applicant pleads ;                       An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 14 March 1 996
— breach of general legal principles, in particular the              by Giuliana Gaspari, residing at Sandweiler ( Luxembourg ),
    principles of equality of treatment and the protection of        represented by Jean-Noël Louis, Thierry Demaseure and
    legitimate expectations . He considers in that regard that       Ariane Tornel , of the Brussels Bar, with an address for
    the appointing authority did not include in the text of the      service in Luxembourg at the offices of Fiduciaire Myson
    vacancy notice any qualification to the effect that, if the      SARL, 1 , rue Glesener.
    Commission were to decide, after publication of the
    notice, to reserve the post for a national of one of the
    new Member States, in accordance with a procedure yet            The applicant claims that the Court should :
    to be adopted by the Chamber, the notice could be
    regarded as wholly ineffective in law,                           — annul the decision treating the applicant's absence on
                                                                         5 May 1995 as irregular and deducting it from her
— infringement of Articles 4, 5 , 27 and 29 of the Staff                 annual leave,
    Regulations . He points out in that regard that, while the
    appointing authority is not bound to act on a                    — order the defendant to pay the costs .
    recruitment procedure undertaken pursuant to
    Article 29 of the Staff Regulations, it is nevertheless          Pleas in law and main arguments
    supposed to observe the general principles of law and,
    consequently, that it should have pursued the procedure          The applicant states that on 3 May 1995 her attending
    before initiating a different procedure which, moreover,         medical practitioner issued a certificate of incapacity for
    excluded the participation of the applicant.                     work in respect of the period from 3 to 5 May 1995
                                                                     inclusive. On 4 May the defendant required her to undergo a
    In addition, the Regulation introducing special measures         medical examination arranged by it pursuant to Article
    applicable to the recruitment of officials as a result of the    59 ( 1 ) of the Staff Regulations of officials . At the end of that
    accession of new Member States entered into force on a           examination, the institution's doctor informed her that he
    date subsequent to the publication of vacancy notice             considered her fit to take up her duties again the following
    COM/116/94 and, since it was not given retroactive               day, Friday 5 May . The applicant went back to work on
    effect, it cannot affect the situation as governed by the        8 May. By note of 22 May 1995 the head of the Parliament's
    said vacancy notice .                                            Personnel Division informed the applicant of the decision to
                                                                     treat her absence on 5 May as irregular and to deduct that
    Furthermore, Article 27 of the Staff Regulations refers          absence, in accordance with Article 60 of the Staff
    not to functions but to posts . In consequence, the              Regulations, from her annual leave .
    Commission is supposed to secure a balanced
    geographical representation not among persons within             In opposition to that decision, the applicant pleads, first,
    the organization plan of a Directorate-General but               breach of the obligation to provide a statement of reasons,
    among all posts provided for in the list of posts . It           arguing that the defendant did not state the medical reasons
    follows that the defendant institution could have                why the examining doctor decided to regard the absence on
    observed the principle of recruitment on the broadest            5 May as irregular, thereby precluding any examination of
    possible geographical basis, in particular as regards the        the merits of the contested decision .
    new Member States, while at the same time having
    regard to the general principles of equality of treatment        In addition, the applicant considers that the decision
    and the protection of legitimate expectations, by                disregarded Articles 59 and 60 of the Staff Regulations . She