CELEX: C1997/271/28
Language: en
Date: 1997-09-06 00:00:00
Title: Action brought on 6 June 1997 by Augusto Fichtner against the Commission of the European Communities (Case T-173/97)

6 . 9 . 97          I EN I               Official Journal of the European Communities                                 C 271 /17
the years 1993 , 1994 and 1995 , which are not                      The applicant claims that the Court should:
representative of the applicant's true capacity for
importing from ACP countries, whereas the three years
                                                                    — annul the Commission decision of 5 March 1997
 1988 , 1989 and 1990 represent the last period during
which Camar was able to operate under normal                             rejecting complaint No R/1691 /96 lodged by the
conditions .                                                             applicant,
                                                                    — order the Commission to compensate the applicant for
The applicant accepts that the absence of Somali bananas                 the material and non-material damage which he
 by reason of the war and the subsequent crisis is outwith               suffered as a result of the conduct complained of in
the Commission's control. That, however, does not release                such an amount as the Court may consider to be
the defendant from responsibility for having failed to take              equitable,
cognizance of the fact that, up to 1995 , there was a
shortfall in Community supply corresponding to the
60 000 tonnes set out in the Annex to Council Regulation            — order the unsuccessful party to pay the costs.
 ( EEC ) No 404/93 as traditional quantities, and that since
 1995, although exports of bananas from Somalia have
resumed, the quantities imported into the Community still           Pleas in law and main arguments adduced in support:
fall appreciably below the traditional quantity. The
Commission's liability stems from the fact that, although           The applicant, a Grade B 4 official working at the Joint
it had at its disposal the necessary powers conferred by            Research Institute in Ispra, contests the decision of the
the Council, it did not make use of them and thereby                Promotions Committee not to include his name on the list
adversely affected not only the general interests of the            of officials most eligible to be promoted to Grade B 3 in
Community but also the specific interest of Camar in its            the 1996 budgetary year.
capacity as a traditional importer of Somali bananas into
the Community.
                                                                    The applicant places specific emphasis in this regard on
                                                                    the delay in compiling his staff report for the period July
Camar takes the view that, although failing to increase the         1993 to June 1995, which was not forwarded to him until
tariff quota for non-member countries to take account of            25 February 1997. That delay deprived him of the
the deficit attributable to Somali bananas, as provided for         opportunity to be included on the abovementioned list of
under Article 16 ( 3 ) of Regulation ( EEC ) No 404/93 , and        officials eligible for promotion. The absence of that
allocating to Camar the portion of that increase to which           periodic staff report prevented the appointing authority
it was entitled, the Commission ought at least to have              from taking full cognizance of his qualities and work
taken the necessary measures pursuant to Article 30 of              capacity. That fact had a decisive bearing, in negative and
that regulation to adjust its reference quantities in order to      preclusive terms, on the promotions procedure .
allow Camar to obtain larger licences for importing
bananas from non-member countries as a Category B
operator. The applicant interprets this omission as                 The applicant points out that during his first 16 years in
constituting a breach of the principle of non­                      Grade B 4, which he has occupied for some 21 years, his
discrimination .                                                    work was distinguished by professionalism and
                                                                    conscientiousness, as is moreover confirmed by the staff
                                                                    reports concerning those periods. It is for that reason
(') Case T-79/96 Camar v. Commission ( OJ C 233 , 10 . 8 . 1996 ,   difficult to believe that for some 16 years of work all the
     p. 13 ).                                                       officials eligible for promotion in the same way as the
                                                                    applicant have always proved to be more meritorious on a
                                                                    comparative examination of their merits and staff reports.
                                                                    In support of his submissions, the applicant puts forward
                                                                    the following grounds :
Action brought on 6 June 1997 by Augusto Fichtner
    against the Commission of the European Communities              — abuse of power based on discrimination,
                       ( Case T-l 73/97)
                         ( 97/C 271/28 )                            — breach and misapplication of Article 24 of the Staff
                                                                        Regulations,
                (Language of the case: Italian)
                                                                    — breach of substantive forms,
An action against the Commission of the European                    — breach of Article 43 of the Staff Regulations and its
Communities was brought before the Court of First                       implementing provisions.
Instance of the European Communities on 6 June 1997 by
Augusto Fichtner, represented by Vincenzo Salvatore, of
the Pavia Bar, 6 Via Orrigoni, Varese ( Italy ).