CELEX: C1998/007/52
Language: en
Date: 1998-01-10 00:00:00
Title: Action brought on 11 June 1997 by Bernard Bareyt and Others against the Commission of the European Communities (Case T-175/97)

C 7/16               EN                 Official Journal of the European Communities                                 10. 1. 98
The applicant claims that the Court should:                             retroactively for a period of six months, pursuant to
                                                                        the new, disputed weighting,
Ð annul the decision of the selection board not to admit
     the applicant to the oral test of internal competition
                                                                   Ð order the Commission to repay to the applicants the
     CC/B/7/95,
                                                                        curtailment of salary imposed on them by it with
                                                                        effect from May 1996 on the basis of the new,
Ð order the defendant to pay the costs.                                 disputed weighting;
Pleas in law and main arguments adduced in support:
                                                                   Ð order the Commission to pay the costs.
The applicant, a former temporary member of staff, relies,
first, on a breach of the principle of equal treatment of          Pleas in law and main arguments adduced in support:
candidates and of the rules which govern the functioning
of the selection board, for the manner in which multiple
choice written tests are carried out does not ensure that          The applicants, all of whom work as officials of the
candidates are treated equally, or the objectivity of the          Commission Delegation in Tokyo or as temporary
choice of candidate made by the board.                             members of staff at the Iter Eda Centre, Naka Joint Work
                                                                   Site, Naka, object to the application to them of the
Secondly, he relies on a breach of the obligation to state         weightings fixed by Council Regulations (Euratom, ECSC,
reasons, since the board ought to have forwarded to the            EC) No 577/96, (Euratom, ECSC, EC) No 578/96 and
applicant a statement of reasons for the contested decision        (Euratom, ECSC, EC) No 579/96 laying down the
as required by Community case-law. The appointing                  weightings applicable from 1 July 1994, 1 January 1995
authority should also have verified whether the two                and 1 July 1996 respectively to the remuneration of
disputed written tests were properly administered and              officials of the European Communities serving in third
informed the applicant of the result of its investigation.         countries (1). So far as concerns Japan, those Regulations
                                                                   gave rise to an appreciable reduction of the weighting
                                                                   which fell from 214,11 points, applicable from 1 January
                                                                   1994 and still applicable in May 1996, to 179,87 points
                                                                   as from 1 July 1994, 180,24 points as from 1 January
                                                                   1995 and 186,80 points as from 1 July 1995, that is to
                                                                   say, a drop of 16 % between 1 January 1994 and 1 June
Action brought on 11 June 1997 by Bernard Bareyt and
                                                                   of that year.
Others against the Commission of the European
                        Communities
                      (Case T-175/97)                              The applicants consider that those new weightings were
                                                                   adopted in breach of the detailed rules laid down in
                         (98/C 7/52)
                                                                   Article 13 of Annex X of the Staff Regulations, inasmuch
                                                                   as the Commission failed to submit, every six months, to
               (Language of the case: French)                      the Council the proposals for new weightings and the
                                                                   Council did not observe the one- or two-month time limit
An action against the Commission of the European                   for the adoption of new weightings. Likewise, the
Communities was brought before the Court of First                  Commission did not use its power of initiative to adopt,
Instance of the European Communities on 11 June 1997               of its own motion, new weightings in the event of a
by Bernard Bareyt, residing in Naka (Japan), Ivone                 variation in excess of 5 %; whereas from June to July
Benfatto, Denis Bessette, Pier Luigi Bruzzone, Giuliano            1994 the weightings in respect of Japan were reduced, on
Dalle Carbonare, Enrico Di Pietro, Barry John Green,               a proposal of the Commission, by 20,36 % for Tokyo and
Remmelt Haange, Ronald Hemsworth, Michel Huguet,                   47,15 % for Naka.
Marcus Iseli, Neil Mitchell, Pier Luigi Mondino, Alfredo
Portone, Carlo Sborchia, Alessandro Tesini, Mike Michael
Wykes, all residing in Naka (Japan), and Michel Dupon,             In the applicants' view, the Court should also find a
residing in Tokyo (Japan), represented by Nicolas LhoeÈst,         manifest error of assessment. The contested Regulations
of the Brussels Bar, with an address for service in                represent, with regard to Japan, a reduction of 14,02 %
Luxembourg at Fiduciaire Myson SARL, 30, rue de                    between the economic parity of January and that of June
Cessange.                                                          1994. However, it cannot be imagined that the cost of
                                                                   living in Japan could have fallen by the same extent
The applicants claim that the Court should:                        between those two months. Rather, Japan's cost of living
                                                                   is practically the highest in the world, a trend which is
                                                                   more marked every year.
Ð declare Regulations (Euratom, ECSC, EC) No 577/96,
     (Euratom, ECSC, EC) No 578/96 and (Euratom,
     ECSC, EC) No 579/96 adopted by the Council of the             So far as concerns recovery of the overpayment in respect
     Union on proposal of the Commission on 25 March               of the remunerations affected by the Regulations in
     1996 to be inapplicable,                                      question as a result of the retroactive effect thereof, the
                                                                   applicants claim, first, that Article 13 of Annex X of the
Ð order the Commission to repay to the applicants the              Staff Regulations does not provide for any retroactivity for
     salary which it withheld from them in June 1996               the application of new weightings. On the contrary, it is
 ---pagebreak--- 10. 1. 98             EN                 Official Journal of the European Communities                                      C 7/17
precisely in order to avoid the need for any retroactivity              render the grant of sick leave prescribed for the
that that Article provides for six-monthly interim                      purposes of undergoing treatment in the form of a
adjustments, with the possibility of being able to make                 thermal cure subject to further conditions for which
additional interim adjustments in the event of an                       no provision is made in Article 59 of the Staff
appreciable variation in the cost of living. The                        Regulations. On the basis of the presumption that a
Commission's failure to make six-monthly adjustments to                 medical certificate is to be presumed to be regular, and
the weightings during more than two years cannot                        of the principle of its credibility, that provision
therefore justify, a posteriori, the recovery of a so-called            automatically gives rise to entitlement to sick leave for
overpayment of remuneration.                                            the whole of the period covered,
(1) OJ L 83, 2. 4. 1996, pp. 1, 4 and 7.                            Ð breach of the principles of legal certainty, of the
                                                                        protection of legitimate expectations, of respect for
                                                                        acquired rights and of non-retroactivity, and
                                                                        infringement of the second paragraph of Article 25 of
                                                                        the Staff Regulations. The applicant considers in that
                                                                        regard that, although the appointing authority
Action brought on 30 June 1997 by Donato Continolo                      referred, in its decision rejecting his complaint, to the
   against the Commission of the European Communities                   criteria for granting sick leave covering the whole of
                        (Case T-196/97)                                 the period when he was absent for the purposes of
                                                                        undergoing medical treatment in the form of a thermal
                           (98/C 7/53)
                                                                        cure, it failed to set out those criteria in a clear
                                                                        manner or to mention the legal basis justifying their
                (Language of the case: French)
                                                                        adoption. Such a statement of reasons is not relevant.
                                                                        Moreover, contrary to the statement made by the
An action against the Commission of the European
                                                                        appointing authority in its reply rejecting his
Communities was brought before the Court of First
                                                                        complaint, the criterion of serious illness is not merely
Instance of the European Communities on 30 June 1997
                                                                        one of the criteria applied for the purposes of granting
by Donato Continolo, residing at Taino (Italy),
                                                                        additional leave; it constitutes the only criterion
represented by Jean-NoeÈl Louis, Thierry Demaseure and
                                                                        currently applied. He considers that, if other criteria
Ariane Tornel, of the Brussels Bar, with an address for
                                                                        had been applied, the appointing authority should
service in Luxembourg at the offices of Fiduciaire Myson
                                                                        have brought them to the attention of the staff in a
SARL, 30, rue de Cessange.
                                                                        clear and exhaustive manner, and should have referred
                                                                        to the provisions establishing them.
The applicant claims that the Court should:
Ð annul the Commission's decision refusing to grant the             Furthermore, although the applicant underwent his
    applicant sick leave in respect of the whole of the             treatment by way of thermal cure in May and September
    period prescribed by his attending medical practitioner         1995, it was not until 1 February 1996 that the Heads of
    for the purposes of undergoing medical treatment in             Administration confirmed the criterion proposed by the
    the form of a thermal cure,                                     Interinstitutional Medical Board for the grant of the
                                                                    second part of the special leave, namely, that it should be
Ð order the defendant to pay the costs.                             granted only in the case of a thermal cure connected with
                                                                    a sickness the expenses in relation to which are
Pleas in law and main arguments adduced in support:                 reimbursable at the rate of 100 %.
The present action concerns the refusal to grant the
applicant sick leave for the whole of his periods of
absence in May and September 1995, during which he
underwent medical treatment in the form of a thermal
cure, as prescribed by his attending medical practitioner           Action brought on 2 July 1997 by Carmen JimeÂnez
and as deemed to be necessary by the medical officer of             against the Office for Harmonization in the Internal
the Joint Sickness Insurance Scheme.                                              Market (trade marks and designs)
                                                                                           (Case T-200/97)
In support of his claims, he advances, in particular, the
following pleas:                                                                              (98/C 7/54)
Ð the illegality of conclusion No 207/94 of the Heads of                           (Language of the case: French)
    Administration, of the Commission's internal Directive
    No 8927 of 28 December 1994 and of the conclusion               An action against the Office for Harmonization in the
    of the Heads of Administration of 1 February 1996,              Internal Market (trade marks and designs) was brought
    inasmuch as, by authorizing the administration to               before the Court of First Instance of the European
    leave a medical certificate out of account,                     Communities on 2 July 1997 by Carmen JimeÂnez, residing
    alternatively, by providing that sick leave may be              in Luxembourg, represented by Georges Vandersanden, of
    granted only if the medical treatment is connected              the Brussels Bar, with an address for service in
    with a sickness the expenses in relation to which are           Luxembourg at the offices of the Fiduciaire Myson SARL,
    reimbursable at the rate of 100 %, those documents              30, rue de Cessange.