CELEX: C1996/233/20
Language: en
Date: 1996-08-10 00:00:00
Title: Action brought on 15 May 1996 by Sonja Edith Berlingieri Vinzek against the Commission of the European Communities (Case T-71/96)

No C 233/ 10          EN                 Official Journal of the European Communities                                     10 . 8 . 96
organizations to which they belong, their task necessarily          The applicant submits that this decision was adopted in
entails an appropriate financial arrangement . Thus the fact        breach of the essential procedural requirements set out in
that members of the ESC continue to go without such an              Article 25 of the Staff Regulations . It infringes general rules
arrangement is incompatible with the nature of the task             of law relating to the application of the Treaty establishing
assigned to them by the Treaty, since it inherently                 the European Community, namely the principles of equal
presupposes that all members of the ESC are paid for those          treatment, the protection of legitimate expectations and the
services by organizations in their respective countries and         prohibition of retroactive withdrawal of a legal measure
that they are therefore in practice obliged , in the                which confers individual rights . The decision was also
performance of their ESC duties, to act in the interests and at     adopted without taking the applicant's rights and legitimate
the behest of those organizations .                                 interests into account .
The applicant also alleges : ( a ) breach of the principle of
equal treatment as between the various European
appointments; ( b ) breach of the principle that allowances
should compensate time devoted to the performance of
duties and the quality and quantity of work undertaken , and
not merely ( and, above all, not partially ) actual expenses        Action brought on 15 May 1996 by Sonja Edith Berlingieri
incurred .
                                                                    Vinzek against the Commission of the European
                                                                                              Communities
                                                                                           ( Case T-71 /96 )
                                                                                             ( 96/C 233/20 )
Action brought on 13 May 1996 by John Mellett against the
      Court of Justice of the European Communities                                  (Language of the case: French)
                        Case T-66/96 )
                        ( 96/C 233/ 19 )                            An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                (Language of tbe case: Englisb)                     Instance of the European Communities on 15 May 1 996 by
                                                                    Sonja Edith Berlingieri Vinzek, residing at Sterrebeek
An action against the Commission of the European                    ( Belgium ), represented by Jean-Noël Louis , Thierry
Communities was brought before the Court of First                   Demaseure and Ariane Tornel , all of the Brussels Bar, with
Instance of the European Communities on 13 May 1996 by              an address for service in Luxembourg at the offices of
John Mellett, represented by Brendan O'Donovan, with an             Fiduciaire Myson , Sari, 1 Rue Glesener .
address for service in Luxembourg at 61 , rue des
Maraîchers, Plateau du Kirchberg.                                   The applicant claims that the Court should :
The applicant claims that the Court should :                        — annul the decision of the selection board in competition
                                                                        COM/A/955 of 28 March 1996 not to admit her to the
— annul the decision of the Administrative Committee of
    the Court of Justice of the European Communities of                 oral test in the competition,
    14 June 1995 not to commence the procedure leading to
    the establishment of Mr Mellett as a permanent official ,       — annul , in so far as necessary, the decision of the selection
    and                                                                 board in competition COM/A/955 of 16 February 1996
                                                                        not to admit her to the oral test in the competition,
— order the       defendant to     bear the   costs  of these
    proceedings .                                                   — order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
The applicant, who , as personal driver of one of its
Members, is a member of the temporary staff of the Court of         The applicant states that she obtained her veterinary degree
Justice challenges the refusal to commence a procedure              at the University of Pisa ( Italy ) in 1974 and that, since
leading to his appointment as permanent official .                  September 1974, she has been working as an independent
                                                                    consultant in various areas, and especially in the technical
The applicant states that according to a well-established           and administrative areas and in the area of veterinary
practice of the defendant institution, drivers are first            legislation . On 4 October 1995 , the Commission published
recruited as temporary officials attached to the Chambers of        the notice of open competition COM/A/955 with a view to
a Member . After three years' service, the Member would             the recruitment of principal administrators ( A4/A5 ) of
propose that a procedure leading to the establishment of the        Austrian nationality . The applicant lodged her candidature
driver as a permanent official be set in motion . An internal       within the prescribed time-limit . By letter of 16 February
competition would then be organized by the Court's                  1996 , she was informed that she had not been admitted to
administration, which would invariably lead to the driver           the oral test in the competition . Following a request by the
being established . The contested decision has departed from        applicant that the decision be re-examined, the selection
this practice .                                                     board confirmed its decision by letter of 26 March 1996 .
 ---pagebreak---  10 . 8 . 96            EN                  Official Journal of the European Communities                                  No C 233/ 11
The applicant maintains, first, that the notice of competition          head    of   another     unit  in  DG     VIII   informed    the
COM/AY/955 was unlawful in that it required the selection               Director-General and the Deputy Director-General in
board to take notice of all the candidates ' applications and           writing of a number of very negative assessments concerning
supporting documents before fixing the criteria for assessing           the manner in which the applicant performed his duties . The
their professional qualifications . As a result of the                  applicant immediately challenged those accusations, which
unlawfulness of that notice, all decisions adopted on the               he regarded as defamatory and insulting. Having carried out
basis of the notice should also be considered unlawful .                an enquiry, the Director-General concluded that no
                                                                        evidence had been adduced to support the assessments made
She also argues that she has outstanding professional                   of the applicant and decided to close the file on the matter .
qualifications and significant professional experience . The           Nevertheless, he subsequently informed the applicant that
decision not to admit her to the oral test in the competition          he had decided, first, to transfer him to unit VIII/B/5 and,
therefore cannot fail to be vitiated by a manifest error of             secondly, to retain the author of the accusations in his post
assessment .                                                           without taking any disciplinary measure against him . In a
                                                                       conversation he had on that subject with the
Finally, the Commission refused to communicate to her                  Director-General, the applicant challenged the decision,
during the pre-litigation stage any information concerning             arguing that to transfer him to a post of lesser professional
the deliberations of the selection board and, in particular, as        interest and at a lower administrative level, while
to the precise criteria fixed by the board and the time at             maintaining the other person in his post, could only be
which they were adopted . She infers that the Commission               interpreted as a disguised sanction against him . On
infringed the duty to state reasons under Article 25 of the             11 August 1 995 , the applicant was informed that the
                                                                       Commission had decided, in the context of the
Staff Regulations of officials.
                                                                       reorganization of DG VIII, to assign him as Head of the unit
                                                                       VIII/B/5 ' Sysmin ' in Directorate B ' Instruments '.
                                                                      The applicant applies for the annulment of that decision,
                                                                       and makes the following pleas in law:
Action brought on 17 May \ 996 by Miguel Forçat Icardo                 ( a ) the statement of reasons was erroneous and unfounded
  against the Commission of the European Communities                         in so far as the Commission claimed that the contested
                          ( Case T-73/96 )                                   decision was taken ' in the context of the reorganization
                                                                             of DG VIII'. The applicant maintains that, in the light of
                            ( 96/C 233/21 )
                                                                             the facts, that statement of reasons is obviously unreal,
                                                                             since he was in fact transferred after accusations which
                (Language of tbe case: French)                               were made against him, even though those accusations
                                                                             turned out to be unfounded;
An action against the Commission of the European                       ( b ) the applicant considers that the contested decision
Communities was brought before the Court of First                            disregards the interests of the service, since its effect is
Instance of the European Communities on 17 May 1996 by                       to deprive the service of a responsible person
Miguel Forçât Icardo, residing in Brussels, represented by                   unanimously recognized as competent and efficient and
Georges Vandersanden, of the Brussels Bar, with an address                   to assign him to less responsible tasks in a smaller team,
for service in Luxembourg at the offices of Fiduciaire Myson                 signifying de facto demotion in the eyes of all
Sàrl, 1 Rue Glesener .                                                       concerned ;
The applicant claims that the Court should :                          (c ) in the applicant's submission, the contested decision
                                                                             constitutes a misuse of powers, in that it was not based
                                                                             on the interests of the service and that its real
— annul the decision compulsorily to reassign the applicant
     to unit VIII/B/5 , contained in the note of F. De Koster of             motivation was not the reorganization of DG VIII but
     11 August 1995 ,                                                        the seriously defamatory and acknowledgedly
                                                                             unfounded accusations which had been made against
                                                                             him .
— award compensation to the applicant for the
     non-material damage suffered,
                                                                      The applicant further maintains that the attitude which the
— order the Commission to pay the costs .                             Commission adopted towards the unjustified accusations
                                                                      against him, as described above, has caused him obvious
                                                                      non-material damage which it must make good . He
Pleas in law and main arguments adduced in support:                   therefore claims that the Commission should be ordered to
                                                                      pay him Bfrs 500 000 in damages and take disciplinary
The applicant states that, as from 1 January 1991 , he was            action against the author of the accusations .
Head of the ' Caribbean' unit (VIII/F/1 ) in the
Directorate-General for Development ( DG VIII ), and
performed his duties to the satisfaction of his superiors, as is
demonstrated by his staff reports. In February 1995 , the