CELEX: C1998/278/84
Language: en
Date: 1998-09-05 00:00:00
Title: Action brought on 28 May 1998 by Marie Costigan against the Council of the European Union (Case T-84/98)

C 278/38            EN                  Official Journal of the European Communities                                    5.9.98
   The training programmes were carried out, as will                   expenditure for non-teaching expert, administrative
   be shown below, in strict compliance with and                       and secretarial staff for the project' but as specialist
   observance of the conditions imposed by the original                work which, by its very nature is carried out by third
   approval decision.                                                  parties.
Ð Contravention of the law Ð Unlawfulness Ð Error of                   The Decision is based on different criteria and on
   assessment of the facts:                                            whether E. B., L.da, a sub-contractor, is entitled to
                                                                       make legitimate profits.
   The applicant complied completely and rigorously
                                                                       The DAFSE and the Commission always accepted, by
   with all the requirements imposed by the Commission
                                                                       means of the discretion applied in respect of the
   as laid down in the decision approving the application
                                                                       period from 1986 to 1989, profit calculated on the
   and the legislation and, in particular, with that of
                                                                       basis of 50 % of the costs borne by the subcontractors,
   imparting vocational training to 36 and 300 persons
                                                                       so that the profit made by E. B., L.da was within the
   (in the two files, respectively) whose skills were
                                                                       bounds accepted by the DAFSE and the Commission.
   inadequate to permit their entry into the labour
   market.
   The contested decision alleges that certain expenditure
   incurred by the applicant did not fulfil the conditions
   laid down in the approval decision.                             Action brought on 28 May 1998 by Marie Costigan
                                                                            against the Council of the European Union
   For that reason it proposes to suspend final payment                                   (Case T-84/98)
   on the grounds set out in the report drawn up by the                                    (98/C 278/84)
   InspeccËaÄo-Geral de FinancËas (Inspectorate General for
   Finances).
                                                                                  (Language of the case: English)
   Thus, the contested decision was based exclusively, by
   reference, to that report of the InspeccËaÄo-Geral de           An action against the Council of the European Union was
   FinancËas.                                                      brought before the Court of First Instance of the European
                                                                   Communities on 28 May 1998 by Marie Costigan,
                                                                   represented by SeÂamas O'Tuathail, instructed by Lehane
   There is therefore an error of assessment of the facts          & Hogan, Solicitors, of 1 Upper Ormond Quay, Dublin 7,
   in the contested decision since the Commission, by              Ireland.
   basing itself exclusively on that report, committed the
   same errors as to the facts as the report itself.               The applicant claims that the Court should:
   The applicant used the payment to trainees of                   Ð annul Decision No 677/97 of the Secretary-General of
   attendance and merit bonuses in order to keep them                  the Council of the European Union of 11 July 1997,
   interested and to maximise learning, a policy which
   gave optimum results and resulted in zero absenteeism,
   none of which is contrary to the original approval              Ð reinstate Marie Costigan to her former post or
   decision.                                                           position with the Council of the European Union
                                                                       without any loss or diminution in her status, salary or
                                                                       incidental benefits,
   The applicant contracted a specialist organisation to
   provide assistance and to provide greater quality to
                                                                   Ð annul all subsequent decisions following on or giving
   the courses taught.
                                                                       effect in any way to or emanating from Decision
                                                                       No 677/97, mentioned above, made by or on behalf of
                                                                       the Secretary-General of the Council of the European
   The applicant subcontracted the services of that
                                                                       Union, his servants or agents,
   organisation, engaging teaching staff and concluding
   contracts for expert educational assessments and
   vocational guidance and budget management services.             Ð annul the decision made on 14 June 1996 by the
                                                                       Secretary-General of the Council of the European
                                                                       Union to refer the case of the applicant to the
   Reference to such subcontracting, which is permitted                Invalidity Committee,
   by the legislation and by the Commission's approval
   decision, was already to be found in the application,
   at least implicity, inasmuch as the estimated costs             Ð declare the conclusions of the Invalidity Committee
   associated with such work did not appear as                         arrived at on 9 July 1997 to be null and void,
 ---pagebreak--- 5.9.98               EN                  Official Journal of the European Communities                                   C 278/39
Ð order the Council to pay the applicant all arrears of                 the applicant suffered from total permanent invalidity
    salary owned to her and accruing from 1 August 1997                 or incapacity, the appointing authority could not make
    as well as all incidental benefits pertaining thereto,              a determination under Articles 53 and 78 of the Staff
    together with interest at a rate of 10 % per annum on               Regulations.
    such arrears according as they fell due or would have
    been paid had it not been for Decision No 677/97,
                                                                    Ð The facts in the present case indicate that the
    referred to above,
                                                                        Invalidity Committee convened by the Council
                                                                        was established not for the purpose of investigating
                                                                        whether the applicant was suffering from a total and
Ð order the Council to pay the applicant the sum of BEF                 permanent incapacity to carry out her duties, but as a
    3 000 000 (three million Belgian francs) for non-                   means of retiring her from the service of the Council.
    material damage,                                                    From this point of view, the whole invalidity
                                                                        procedure should be considered as vitiated by a misuse
                                                                        of powers.
Ð annul the findings of the Secretary-General of the
    Council made on 12 February 1998, rejecting the
    applicant's complaint of 15 October 1997 and
    confirming that Decision No 677/97 remains valid,
    and
                                                                    Action brought on 6 July 1998 by Gisela Stodtmeister
Ð award Marie Costigan the costs of the proceedings.                         against the Council of the European Union
                                                                                           (Case T-101/98)
                                                                                            (98/C 278/85)
Pleas in law and main arguments adduced in support:
                                                                                   (Language of the case: French)
The applicant in the present case, an official of the
Council affected by a decision declaring her invalidity             An action against the Council of the European Union was
(Decision No 677/97), challenges the definitive decision of         brought before the Court of First Instance of the European
invalidity, as well as the preliminary decision establishing        Communities on 6 July 1998 by Gisela Stodtmeister,
an Invalidity Committee in regard to her case and its               residing at Tervuren (Belgium), represented by Georges
conclusions, on which basis the first decision was adopted.         Vandersanden and Laure Levi, of the Brussels Bar, with an
                                                                    address for service in Luxembourg at the offices of
                                                                    Fiduciaire Myson sarl, 30 rue de Cessange.
In support of her conclusions, the applicant submits that:
                                                                    The applicant claims that the Court should:
Ð The Invalidity Committee wrongly finds that she
    suffers from an invalidity which is considered as total,        Ð annul the decisions concerning promotion to grade A 3
    preventing her from performing the duties                           adopted for 1997 by the appointing authority on
    corresponding to a post in her career bracket. This                 17 November 1997,
    statement does not provide any reasons that would
    enable the reader to assess the considerations upon
                                                                    Ð annul the decision not to promote the applicant to
    which it is based. Furthermore, since the conclusions
                                                                        grade A 3 adopted in the context of the 1997
    make no reference whatsoever to any medical findings,
                                                                        promotions procedure, with the legal consequence
    no link could be established between the medical
                                                                        flowing therefrom, namely reinstatement of the
    findings (if any) of the Invalidity Committee and
                                                                        applicant's career from 1 January until the date of her
    its conclusions. Decision No 677/97 is accordingly
                                                                        retirement or until the date of her promotion to grade
    vitiated by a procedural irregularity.
                                                                        A 3,
Ð The defendant did not have the power to adopt                     Ð order the defendant to pay the costs.
    Decision No 677/97 on three grounds. First, an
    appointing authority can refer the case of an official to       Pleas in law and main arguments adduced in support:
    the Invalidity Committee only where that individual's
    sick-leave totals more than 12 months in a period of
    three years as per the fourth subparagraph of                   The applicant states that the procedure for drawing up
    Article 59(1) of the Staff Regulations, which has not           staff reports was not correctly followed as regards her
    been established in the present case. Second, the               staff report for the period 1993 to 1994. Consequently,
    Invalidity Committee never examined the applicant.              when the Advisory Committee on Promotion for
    The contested decision was thus adopted without                 Category A officials met, it did not have available to it
    any medical basis. Third, as the conclusions of the             any staff report relating to the applicant for that period. It
    Invalidity Committee themselves do not establish that           therefore omitted to take the applicant's merits and