CELEX: C1995/268/59
Language: en
Date: 1995-10-14 00:00:00
Title: Action brought on 29 August 1995 by Arnaldo Lucaccioni against the Commission of the European Communities (Case T-165/95)

No C 268/28           EN                 Official Journal of the European Communities                                     14 . 10 . 95
— award the sum of Bfrs 75 000, to be increased or                  The applicant claims that the Court should:
     decreased as appropriate during the course of the
     proceedings, as compensation for the non-material              — order the Commission to pay the difference between his
     damage suffered by the applicant,                                   salary as an official and his invalidity pension from
                                                                         1 August 1991 until the date when he reaches
— order the Council to pay all of the costs .                            pensionable age under the Staff Regulations of officials
                                                                         ( 31 January 2006 ), by way of compensation for the
Pleas in law and main arguments adduced in support:                      material damage suffered by the applicant, that
                                                                         difference amounting, on a provisional assessment, to
                                                                         Bfrs 15 000 000 + Bfrs 12 500 000, and order the
The applicant seeks the annulment of his staff report for the            Commission to calculate the first of those sums,
period from 1 July 1991 to 30 June 1993 .
                                                                    — order the Commission to pay ECU 1 000 000 by way of
The applicant states in that regard that at the time when, on            compenstion for the non-material damage suffered by
8 December 1994, he signed the draft staff report drawn up               the applicant,
by the first assessor, endorsing thereon the comment 'I do
not agree with the assessments made by the first assessor and      — order the Commission to pay interest at the rate of 10 %
wish to have a meeting with the-isecond assessor for the                 per annum on the capital sum of Bfrs 25 794 194
purposes of revising the report', the second assessor had                received by the applicant pursuant to Article 73 of the
already signed the report in question 10 days previously.                Staff Regulations, such interest, provisionally assessed in
                                                                         the sum of Bfrs 15 000 000, to be calculated from
Since the normal procedure had not been followed, the                    1 January 1990, alternatively from 10 June 1991 at the
defendant drew up a fresh report covering the same period.               latest, until payment in full of that capital sum,
That new report refers to a discussion on 17 May 1 995 and
purports to have been signed on the same date by the first         — in so far as may be necessary, annul the decision of the
and second assessors .
                                                                         Commission of 22 September 1994 refusing the
                                                                         applicant's request of 15 May 1994 ,
The applicant pleads, first, an infringement of Article 43 of
the Staff Regulations and of the guide to staff reports, in        — order the Commission to pay all of the costs .
that, despite the fact that those two instruments provide for
a periodical report to be drawn up at least once every two
years, on 1 July in every odd year, in the present case the         Pleas in law and main arguments adduced in support:
initial report was not communicated to the applicant until
November 1994 , that is to say, over 15 months late .               The applicant states that he worked in the Berlaymont
                                                                    building in Brussels from the time when it was constructed,
He further pleads that the procedure followed was irregular,        in 1967, until 1987, when he was transferred to another
in that it is apparent from an examination of the initial           building. As a result of his exposure to asbestos over a
report that it was signed by the first and second assessors        period of nearly twenty years, he developed an illness . On
before being signed by the applicant, despite the fact that the    26 November 1990 the applicant submitted a request for the
applicable rules provide for the report to be signed by the         recognition of his illness as an occupational disease . On
second assessor after the official concerned has been given         16 July 1991 the appointing authority decided to retire him
an opportunity of making comments or remarks thereon .              from 1 August 1991 and to grant him an invalidity pension
                                                                    determined on the basis of the third paragraph of Article 78
                                                                    of the Staff Regulations of officials . It was not until 15 April
                                                                    1994, after a lengthy and complex procedure, that the
                                                                    appointing authority finally acknowledged the occupational
                                                                   nature of the disease afflicting the applicant.
Action brought on 29 August 1995 by Arnaldo Lucaccioni             The applicant considers that the Commission's conduct in
  against the Commission of the European Communities                relation to him was unlawful, since it required him to work
                                                                    in an environment contaminated by asbestos,
                        Case T-165 /95 )                            notwithstanding that it knew of, or could not in any event
                         ( 95/C 268/59 )                            have been unaware of, the dangerous nature of that
                                                                    substance, particularly as regards persons performing tasks
                                                                    of an administrative nature in such an environment .
               (Language of tbe case: French)
                                                                    As a result of that misconduct on the part of the
An action against the Commission of the European                    Commission, the applicant has suffered material damage,
Communities was brought before the Court of First                   inasmuch as , first, he has received, since 1 August 1991 , an
Instance of the European Communities on 29 August 1995              invalidity pension in a sum lower than the remuneration
by Arnaldo Lucaccioni , residing in Paris, represented by           which he would have received if he had not been retired on
Georges Vandersanden, Laure Levi and Olivier Eben, of the           the ground of invalidity and, second, he has been forced to
Brussels Bar, with an address for service in Luxembourg at          sell his immovable property quickly, and thus at a reduced
the offices of Fiduciaire Myson Sàrl, 1 Rue Glesener.,              price, in order to make early repayment of the sums
 ---pagebreak--- 14 . 10 . 95          EN                 Official Journal of the European Communities                                No C 268/29
borrowed by him in relation thereto, since his invalidity           The applicant claims that the Court should :
pension is insufficient to enable him to continue to meet his
monthly outgoings. The applicant is also suffering serious          — annul the decision of the selection board for internal
non-material damage as a result of the illness afflicting him            competition COM/B/9/93 awarding the applicant a
and as a result of having been retired on the ground of                  lower mark for her oral test than the minimum required
invalidity.                                                              and excluding her from the list of successful
                                                                         candidates,
Lastly, the applicant maintains that there is a causal link
between the Commission's wrongful conduct and the                   — order the defendant to pay the costs .
alleged material and non-material damage, since, if he had
not been exposed, over a period of nearly twenty years, to an
environment contaminated by asbestos, he would not have             Pleas in law and main arguments adduced in support:
contracted the illness and could have pursued his career in
the normal way until retirement age, continuing to receive          The applicant pleads, first, a breach of the principles of
the whole of his remuneration until then .                          equality of treatment and non-discrimination . She observes
                                                                    in that regard that, by reason of the total lack of knowledge
The applicant further asserts that, in the course of the            of the Greek language on the part of the members of the
procedures in respect of invalidity and the recognition of the      selection board, she was obliged to undergo the oral test
illness as an occupational disease, the Commission was at           through the intermediary of an interpreter, which meant
fault in a number of respects, thereby entitling him to             that the conditions in which the oral test took place in her
compensation . He considers that the various instances of           case, and thus the methods used for marking that test, were
irregularity and illegality by which those procedures were          not the same as those for the other candidates . She also
vitiated prevented him, with effect from January 1990 or, at        maintains that, in consequence of the adoption of that
the very latest, June 1991 , from receiving the benefits due to     procedure , the members of the selection board were unable
him under Article 73 of the Staff Regulations .                     personally to assess two of the appraisal factors, namely the
                                                                    clarity and 'synthesis' of the answers given in her native
                                                                    tongue to the questions put to her in the course of the oral
                                                                    test .
Action brought on 30 August 1995 by Mary                            The applicant also maintains that the marks awarded to her
Karagiozopoulou against the Commission of the European              for the oral test are so different from the assessments made
                          Communities
                                                                    in relation to her in her most recent staff report and in the
                       ( Case T-166/95 )                            proposal for her promotion to grade C2 , and from the
                         ( 95/C 268/60                              marks awarded for the drafting test, that they must of
                                                                    necessity be vitiated by a manifest error of assessment .
               (Language of the case: Frencb)
                                                                    Lastly, the applicant considers that the decision whereby,
An action against the Commission of the European                    despite the defendant's undertaking to provide for 60 posts
Communities was brought before the Court of First                   with a view to upgrading category C posts to category B
Instance of the European Communities on 30 August 1995              posts, the number of candidates admitted to the oral tests
by Mary Karagiozopoulou, residing in Brussels, represented          was limited to 120 constitutes evidence not only of a breach
by Ariane Tornel and Thierry Demaseure, of the Brussels             of the obligation laid down in the fifth paragraph of
Bar, with an address for service in Luxembourg at the offices       Article 5 of Annex III to the Staff Regulations but also of an
of Fiduciaire Myson Sàrl , 1 Rue Glesener.                          intention to limit in advance the number of successful
                                                                    candidates .