CELEX: C1998/094/83
Language: en
Date: 1998-03-28 00:00:00
Title: Action brought on 20 January 1998 by Colette Jemaa against Council of the European Union (Case T-20/98)

28.3.98               EN                  Official Journal of the European Communities                                  C 94/35
Communities on 19 January 1998 by Peter Reichert, of                 Action brought on 20 January 1998 by Colette Jemaa
Overijse (Belgium), represented by Dr Dieter Rogalla,                           against Council of the European Union
Rechtsanwalt, Sprockhövel (Germany), with an address                                        (Case T-20/98)
for service in Luxembourg at the Chambers of Decker,
Braun & Wagner, 16 Avenue Marie-TheÂreÁse.                                                   (98/C 94/83)
                                                                                    (Language of the case: French)
The applicant claims that the Court should:
                                                                     An action against Council of the European Union was
Ð annul Decision No 029945 of 21 October 1997                        brought before the Court of First Instance of the European
    rejecting     his   complaint,     together     with   the       Communities on 20 January 1998 by Colette Jemaa,
    determinations of salary in the individual monthly               residing at PreÂvessin-Moens (France), represented by Jean-
    statements from 1 June 1996, in so far as they do not            NoeÈl Louis, Ariane Tornel and FrancËoise Parmentier, of
    contain any expatriation allowance,                              the Brussels Bar, with an address for service in
                                                                     Luxembourg at Fiduciaire Myson SARL, 30 Rue de
                                                                     Cessange.
Ð order the European Parliament or its competent
    appointing authority to pay the applicant the                    The applicant claims that the Court should:
    expatriation allowance in accordance with the relevant
    provisions from his entering the service of the
                                                                     Ð annul the decision of the Council of 12 March 1997
    European Parliament, with interest at the usual rate,
                                                                          ordering the applicant to repay the sum of CHF
    from 1 June 1996,
                                                                          274 350 and that of 13 June 1997 withholding during
                                                                          59 months CHF 4 650 per month from the applicant's
Ð order the Parliament to pay the costs.                                  remuneration,
                                                                     Ð order the Council to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                     Pleas in law and main arguments adduced in support:
The applicant, a German national, has worked since June
1996 in the press office of the Socialist Group in the               The applicant, an official in Grade B 3, was assigned from
European Parliament in Brussels.                                     September 1976 to the Council's Bureau de Liaison in
                                                                     Geneva. She claimed to be renting from 1 April 1992 a
                                                                     flat in Geneva at a monthly rent of CHF 4 450 plus CHF
By the contested decision the applicant's complaint against          200 for the right to a reserved parking space for her car.
the refusal to pay an expatriation allowance under the               Pursuant to Annex X to the Staff Regulations, she was
second indent of Article 4 (1) (a) of Annex VII to the Staff         reimbursed the expense incurred by way of rent as
Regulations was rejected. The rejection was founded                  declared from 1 April 1992 to 28 February 1997.
essentially on the fact that in the applicant's case there
were already permanent links with the country of service
                                                                     The applicant's statements in respect of her rent are false
when he entered the service, and he was thus at that time
                                                                     inasmuch as she had acquired ownership of the flat in
not in a situation which could establish that there was an
                                                                     question.
actual change of residence and/or transfer abroad within
the meaning of the Staff Regulations'.
                                                                     By decision of 12 March 1997 the appointing authority
                                                                     ordered the applicant to reimburse, as soon as possible,
The applicant submits that before the transfer of his                the rent overpaid amounting to CHF 274 350. By decision
present family residence to Belgium in July 1993 he lived            of 13 June 1997 it proceeded to implement the
in various places in the Federal Republic of Germany.                aforementioned decision by withholding, with effect from
Contrary to the view taken by the defendant, however, in             June 1997, CHF 4 650 per month from the applicant's
the period material for the grant of the expatriation                remuneration.
allowance he consistently neither carried on his main
occupation nor habitually resided in Belgium. He did                 In support of her action, the applicant relies on a single
indeed work for the German media inter alia in Brussels              ground of action of infringement of the provisions of
and was registered with the local authority as resident              Annex X to the Staff Regulations, unlawfulness of the
there, but his activity as a journalist frequently required          Council internal directives of 19 December 1988, adopted
on-the-spot work in places other than Brussels. His clear            pursuant to Annex X to the Staff Regulations, and breach
ties to the sending State, Germany, until July 1993 are              of the general principle of equal treatment and non-
manifested inter alia by the transfer of his salary in               discrimination.
German currency to a German account, by the German
social insurance he then had, and on the basis of the clear
centre of life of his family until that date.                        According to the applicant, the contested decisions are
                                                                     unlawful inasmuch as they require the repayment of cost
                                                                     of accommodation which, pursuant to the provisions of
                                                                     Annex X to the Staff Regulations and the case-law of the
 ---pagebreak--- C 94/36               EN                   Official Journal of the European Communities                                       28.3.98
Court of Justice, must not be borne by an official assigned           In contesting that rejection, the applicant pleads, first,
to a non-member State. The result of the contested                    infringement of Article 25(2) of the Staff Regulations,
decisions is to unjustly enrich the institutions whereas the          stating that the defendant did not provide him with the
applicant actually incurred costs for accommodation for               means to enable him to assess whether the contested
which she was reimbursed. The fact that she owns the                  decision was well-founded.
building which she occupies is of no effect on the
genuineness of the cost of accommodation incurred.
                                                                      The applicant also alleges infringement of Article 12 of
                                                                      the Conditions of employment of other servants and that
Moreover, there is no provision of the Staff Regulations or
                                                                      the vacancy notice is unlawful inasmuch as the exclusion
of Annex X to the Staff Regulations which authorises an
                                                                      criterion relied on by the APCC to justify rejecting his
institution to refuse to reimburse the cost of
                                                                      candidature, which in any event is not expressly stated in
accommodation of an official assigned to a non-member
                                                                      the vacancy notice, does not constitute a proper means for
State who owns the accommodation which he or she
                                                                      achieving the objective pursued by the abovementioned
occupies in the place where the institution has sent him or
                                                                      provisions, namely, securing for the institution the services
her solely in the interest of the service.
                                                                      of officials of the highest standard of ability, efficiency and
Finally, the contested decisions breach the general                   integrity.
principle that all officials must be treated equally
inasmuch as they are based on internal directives which               Finally, the applicant argues that the APCC committed a
do not taken into consideration the accommodation factor              manifest error of assessment when it considered that his
when determining the weighting where an official becomes              candidature could not be taken into consideration for the
the owner of the flat or building which he occupies.                  post for which he had applied, whereas his qualifications,
                                                                      training and experience perfectly match the job profile for
                                                                      the post.
Action brought on 19 January 1998 by Carlos Alberto
Leite Mateus against the Commission of the European
                         Communities
                        (Case T-21/98)                                Action brought on 21 January 1998 by the Scottish Soft
                                                                      Fruit Growers Limited against the Commission of the
                         (98/C 94/84)                                                     European Communities
               (Language of the case: French)                                                 (Case T-22/98)
                                                                                               (98/C 94/85)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 19 January                                    (Language of the case: English)
1998 by Carlos Alberto Leite Mateus, residing at
Zaventem (Belgium), represented by Jean-NoeÈl Louis,                  An action against the Commission of the European
Ariane Tornel and FrancËoise Parmentier, of the Brussels              Communities was brought before the Court of First
Bar, with an address for service in Luxembourg at Fidu-               Instance of the European Communities on 21 January
ciaire Myson SARL, 30 Rue de Cessange.                                1998 by the Scottish Soft Fruit Growers Limited,
                                                                      represented by Fergus Randolph, with an address for
The applicant claims that the Court should:                           service in Luxembourg at the offices of Arendt &
                                                                      Medernach, 8Ð10, rue Matthias Hardt.
Ð annul the decision of the Commission of 11 March
    1997 to reject the applicant's candidature for post
    NPPR/2002/96,                                                     The applicant claims that the Court should:
Ð order the defendant to pay the costs.                               Ð annul the decision of the Commission, received by the
                                                                          applicant on 12 November 1997, refusing to accede to
Pleas in law and main arguments adduced in support:
                                                                          a request made by the Scottish Office concerning the
                                                                          repayment of start-up grant by the applicant, and
The applicant, an official in Grade B at the Commission
since 1988, put forward his candidature in response to a
call for expressions of interest published on 14 October              Ð order the Commission to pay the costs.
1996 with a view to employing temporary staff in
Research' budgetary posts. By memorandum of 11 March
                                                                      Pleas in law and main arguments adduced in support:
1997 he was informed that his candidature had been
rejected. Following the complaint lodged against that
decision, the authority with the power to conclude                    The applicant explains that it was formed in 1992 to carry
contracts (APCC) stated that the rejection of the                     on business as the producers' organisation for raspberries
applicant's candidature was based on the fact that he                 in the United Kingdom. As such, under Article 2(2) of
could not participate in a selection procedure for                    Council Regulation (EEC) 1991/92, establishing a special
temporary staff members since he was already an official.             scheme for raspberries intended for processing (OJ L 199,