CELEX: C1995/208/70
Language: en
Date: 1995-08-12 00:00:00
Title: Action brought on 5 June 1995 by Hassan Belhanbel against the Commission of the European Communities (Case T-125/95)

12 . 8 . 95           EN                  Official Journal of the European Communities                              No C 208/33
Instance of the European Communities on 24 May 1995 by               systematic deduction of sums from his salary by way of
Daniel Chabert, residing at Kraainem ( Belgium ),                    repayment of the sum unduly paid .
represented by Georges Vandersanden, of the Brussels Bar,
with an address for service in Luxembourg at the offices of
Fiduciaire Myson Sari, 1 Rue Glesener.
The applicant claims that the Court should :
                                                                     Action brought on 1 June 1995 by Karl Fingerhut against
— annul the decision of the Commission of 6 October 1994             the Council of the European Union and the Commission of
    ordering the applicant to repay, in monthly instalments,                          the European Communities
    the sum of Bfrs 215 354 in respect of sums unduly                                      ( Case T-124/95 )
    paid ,                                                                                    ( 95/C 208/69 )
— order the repayment of the sums compulsorily deducted                            (Language of the case: German)
    by the Commission from the applicant's salary since
    November 1994 , together with default interest at the
    annual rate of 8 % ,                                             An action against the Council of the European Union and
                                                                     the Commission of the European Communities was brought
— order the defendant to pay all of the costs .                      before the Court of First Instance of the European
                                                                     Communities on 1 June 1995 by Karl Fingerhut,
                                                                     Twistetal-Gembeck ( Federal Republic of Germany ),
Pleas in law and main arguments adduced in support:                  represented by Bernd Meisterernst, Mechtild Düsing,
                                                                     Dietrich Manstetten, Frank Schulze and Winfried
The applicant states that, following his divorce, which was          Haneklaus , Rechtsanwälte, Münster, with an address for
pronounced on 1 February 1984 , he requested the                     service in Luxembourg at the Chambers of Dupong &
administration to pay to his former wife the sum which               Associés, 14a Rue des Bains .
would have been due to her if she had been the person
entitled to receive the household allowance, namely 5 % of
her basic salary, with the balance being paid into the               The applicant claims that the Court should :
applicant's account; the administration carried out that
request, without objection, from 1 March 1 984 . For ten and         1 . order the defendants jointly to pay to the applicant
a half years, from March 1984 to October 1994, the                       SLOM III compensation for the period from
applicant was thus paid a sum, appearing on his salary slip              15 December 1985 to 29 July 1993 in the amount of
as the household allowance , which was deemed to represent               DM 43 929,06 , together with interest thereon at 8 %
the difference between the household allowance paid to his               from 19 May 1992 , and jointly to pay the costs of the
                                                                         proceedings;
former wife, corresponding to 5 % of her salary, and the
balance due to the applicant. It subsequently transpired that
the Commission did not, during that period , adjust that part        2 . join the present action to that already pending in Case
                                                                         T-77/93 Hülseberg and Others v. Council and
of the allowance which was payable to the applicant's
former wife in line with the alterations in her salary; thus             Commission and also stay the proceedings .
although the allowance was increased in line with the salary
increases of the applicant's former wife, it was paid to her on      Pleas in law and main arguments adduced in support:
an unchanging basis only, and the applicant consequently
received a residual sum which grew progressively. The                The pleas in law and arguments are identical to those in Case
                                                                     T-20/95 .
payment was thus indeed irregular, but that irregularity was
entirely due to the defendant and the applicant was not
aware of it .
The applicant bases his case on a single plea , namely,
infringement of Article 85 of the Staff Regulations . The
defendant maintains that it is appropriate in the present case       Action brought on 5 June 1995 by Hassan Belhanbel against
for the undue payment to be recovered , because the                        the Commission of the European Communities
irregularity of the payment was 'patent'. The applicant                                    ( Case T-125/95 )
denies that contention, maintaining that, even if he had                                     ( 95/C 208/70 )
become aware of an increase in the sum paid to him in
respect of the allowance — which he did not — he would
have been legitimately entitled to assume that the amount of                        (Language of the case: French)
that allowance had been increased by an amount greater
than the increase in his former wife's salary, since he was not      An action against the Commission of the European
aware of the extent to which that salary had risen; the error        Communities was brought before the Court of First
on the part of the administration was not, therefore,                Instance on 5 June 1995 by Hassan Belhanbel, of Namur,
patently such that the applicant could not have been                 Belgium,    represented      by Jean-Noel Louis, Thierry
unaware of it. Consequently, the applicant considers that            Demaseure and Ariane Tornel, of the Brussels Bar, with an
the defendant has misapplied Article 85 of the Staff                 adress for service in Luxembourg at the office of Fiduciaire
Regulations and that it has acted unlawfully in ordering the         Myson Sari, 1 Rue Glesener.
 ---pagebreak--- No C 208/34            EN                  Official Journal of the European Communities                                       12 . 8 . 95
The applicant claims that the Court should :                          — order the Commission to pay the costs.
— annul the decision by which the selection board in open
    competition COM/B/765 awarded the applicant marks                 Pleas in law and main arguments adduced in support:
    falling short of the prescribed minimum and refused to
    enter him on the list of successful candidates,                   The applicant explains that, for nearly 15 years, the Greek
                                                                      Government has been considering the construction of a new
— order the defendant to pay the costs .                              international airport to serve Athens and replace the existing
                                                                      airport at Hellenikon. In view of the importance of that
                                                                      project for its economy, Greece expects to receive
Pleas in law and main arguments adduced in support:
                                                                      considerable financial aid from the Community, in the form
                                                                      of credit from the structural funds and loans from the
The applicant, a former member of the temporary staff of              European Investment Bank ( EIB ). After much political
the Commission, contests the decision of the selection board          debate, it was decided to locate the airport in the Spata area
in competition COM/B/765 to award him for the oral test               and to put out a restricted international invitation to
marks falling short of the prescribed minimum, resulting in           tender .
his not being included on the list of successful candidates for
that competition .
                                                                      From the nine consortia which took part in the invitation to
He alleges breach of the obligation to state reasons . The            tender, the Greek authorities selected two finalists : the first,
applicant specifically asked the selection board to inform            Athens Airport Associates ( AAA), led by Societe Auxiliaire
him of the reasons for its decision and of the criteria adopted       d'Entreprises ( SAE), comprised Aeroports de Paris, Siemens,
for evaluation of the oral test but there was no response to          the applicant company and four Greek partners ; the second,
his request.                                                          led by Hochtief, consisted exclusively of German
                                                                      untertakings .
The applicant was particularly entitled to seek an
explanation since the marks awarded in the oral test were             From then on, according to the applicant, the procedure —
astonishing having regard to the marks obtained in the                at the end of which the Greek authorities announced that the
written tests , which concerned the same subjects, and to the         Hochtief consortium had been selected — was vitiated in
applicant's experience . Such a discrepancy can be attributed         several respects . That led AAA to lodge a complaint on
only to a manifest error of assessment.                               26 August 1994 with the Commission, which was
                                                                      investigated by the relevant departments . On completion of
                                                                      that procedure , the Commissioner responsible for public
                                                                      contracts submitted a proposal to the other Commissioners
                                                                      collectively that the infringement procedure be initiated
                                                                      against the Hellenic Republic . However, at its meeting on
                                                                      29 March 1995 , the Commission as a body decided to reject
Action brought on 5 June 1995 by Dumez SA against the                 the complaint submitted by AAA. That decision is the
         Commission of the European Communities                       subject of the present action for annulment or, in the
                                                                      alternative, for failure to act.
                         ( Case T-126/95 )
                           ( 95/C 208/71 )
                                                                      First of all, the applicant submits that the Court's case-law,
                                                                      which disallows altogether actions by individuals against a
                 (Language of the case: French)                       refusal by the Commission to act on their complaints,
                                                                      cannot be applied in the present case , in so far as the purpose
An action against the Commission of the European                      of the infringement procedure, which the Commission had
Communities was brought before the Court of First                     been requested to set in motion, was to compel Greece to
Instance of the European Communities on 5 June 1995 by                adopt, not an act of general application, but an individual
                                                                      decision of direct concern to the two finalists in the
Dumez SA, whose registered office is at Nanterre ( France ),
represented by Alexandre Carnelutti and Jean-Pierre                   tendering procedure . Secondly, the case-law in question no
Spitzer, of the Paris Bar.                                            longer seems applicable in view of the following
                                                                      considerations :
The applicant claims that the Court should :                          ( a ) the national measure concerned is of a purely individual
                                                                            character;
— annul the Commission's decision of 29 March 1995 ,
— in the alternative, declare that the Commission                     ( b ) the EC provisions which have been infringed by a
    unlawfully omitted to initiate the procedure for failure                Member State belong to the category of fundamental
    to fulfil its obligations against the Hellenic Republic, on             principles of Community law;
    account of the serious and repeated infringements of
    Community law committed by the Greek Government in                 (c ) the infringements have occurred in procedures for the
    connection with the procedure for awarding the                          award of public contracts which are scheduled to
    contract for the new Athens airport,                                    receive    considerable    financial    aid     from       the