CELEX: C2001/045/20
Language: en
Date: 2001-02-10 00:00:00
Title: Case C-446/00 P: Appeal brought on 1 December 2000 by P.-J. Cubero-Vermurie against the judgment delivered on 3 October 2000 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-187/98 between P.-J. Cubero-Vermurie and the Commission of the European Communities

C 45/10                  EN                   Official Journal of the European Communities                                      10.2.2001
     —      The allocation of the reduction of the ecopoints             Appeal brought on 1 December 2000 by P.-J. Cubero-
            over several years carried out in Article 1 of the           Vermurie against the judgment delivered on 3 October
            contested regulation (‘stretching model’) and the            2000 by the Fifth Chamber of the Court of First Instance
            general introduction of the stretching model by              of the European Communities in Case T-187/98 between
            Article 2(1) of the contested regulation are, in their       P.-J. Cubero-Vermurie and the Commission of the Euro-
            content, in clear contradiction of the primary law                                    pean Communities
            rules in Protocol No 9.
                                                                                                   (Case C-446/00 P)
            The legal view clearly underlying the contested
            regulation, namely that ‘absolute priority’ is to be
            given to the free movement of goods and the                                              (2001/C 45/20)
            internal market, as opposed to other provisions and
            policies of primary law, is not shared by the Republic
            of Austria. Even the functioning of the internal             An appeal against the judgment delivered on 3 October 2000
            market is to be ensured only in compliance with the          by the Fifth Chamber of the Court of First Instance of the
            requirements of environmental protection. It would           European Communities in Case T-187/98 between
            also have been possible to avoid detriment to the            P.-J. Cubero-Vermurie and the Commission of the European
            internal market with the use of measures less                Communities was brought before the Court of Justice of the
            restrictive of the implementation of Protocol No 9.          European Communities on 1 December 2000 by P.-J. Cubero-
                                                                         Vermurie, represented by E. Boigelot, of the Brussels Bar, with
                                                                         an address for service in Luxembourg at the Chambers of
     —      The reduction in ecopoint quotas carried out by the          L. Schiltz, 2 Rue du Fort Rheinsheim.
            contested regulation takes account only of a (pure)
            causation principle and fails to take due account
            also of the solidarity principle and the principle of        The appellant claims that the Court should:
            proportionality. Moreover, the use of the traffic
            volume figures in the — arbitrarily chosen — years
            1995 to 1997, in which the 108 % limit was not               (1) declare the appeal admissible and well founded;
            exceeded, for comparison with figures for 1999, so
            as to determine the ‘main perpetrator’ of the                (2) consequently:
            exceeding of that limit, lacks all foundation in
            (primary) law and leads to a disproportionate result.
                                                                               (a)   set aside the contested judgment;
—    (In the alternative) Legal infringements and insufficient
     statement of reasons when applying the calculation                        (b) itself determine the case and, upholding the appel-
     method in accordance with paragraph 3 of Annex 5 to                             lant’s initial claim:
     Protocol No 9 to the 1994 Act of Accession: The system
     underlying the contested regulation is, in view of the
                                                                                     —     annul the appointing authority’s decision of
     extraordinary reduction in the number of ecopoints,
                                                                                           6 April 1998 not to promote the appellant to
     wrongly based on the exclusion, or failure to take account
                                                                                           grade A 5 in the context of the 1998 promotion
     of, ‘illegal’ transit journeys without payment of ecopoints.
                                                                                           procedure;
     There is no legal basis for that in Protocol No 9. An
     interpretation of the calculation method laid down in
     paragraph 3 of Annex 5 that corresponds to the declared                         —     annul the decision of 9 October 1998 expressly
     aims of Protocol No 9 can only be one which allows the                                rejecting the complaint against the decision
     damage to the environment and to health arising from                                  annulment of which is sought, that complaint
     ‘illegal’ journeys also to be included in the calculation.                            having been submitted by the appellant on
                                                                                           27 April 1998 and registered in the Secretariat-
                                                                                           General on 6 May 1998 under number
—    (In the alternative) Infringement of the EC Treaty and/or                             R/436/98;
     Protocol No 9 to the 1994 Act of Accession on account
     of insufficient legal basis.
                                                                                     —     order the Commission of the European Com-
                                                                                           munities to pay to the appellant compensation
                                                                                           for the combined material and non-material
                                                                                           damage suffered by him, fixed on an equitable
(1) OJ No L 241, 26.9.2000, p. 18.                                                         basis in the sum of BEF 250 000;
(2) OJ No L 341, 30.12.1994, p. 20.
                                                                                     —     order the Commission of the European Com-
                                                                                           munities to pay all the costs in any event, both
                                                                                           of the first-instance proceedings and of the
                                                                                           present appeal.
 ---pagebreak--- 10.2.2001              EN                     Official Journal of the European Communities                                      C 45/11
Pleas in law and main arguments                                          Pleas in law and main arguments
—     Infringement of Community law, in particular Article 33
      of the Statute of the Court of Justice:                            The pleas in law and main arguments are similar to those
                                                                         advanced in Case C-443/00 (2).
      —     error of law and inconsistency in the grounds of the
            contested judgment, inasmuch as the Court of First
            Instance declared inadmissible the head of claim             (1) OJ L 281 of 23.11.1995, p. 31.
                                                                         (2) See p. 8 of this Official Journal.
            alleging infringement of the third and fourth para-
            graphs of Article 24 of the Staff Regulations;
      —     inconsistency in the grounds of the contested judge-
            ment and error of lax, inasmuch as the contested
            judgment does not accept that the Commission
            committed a manifest error of assessment;
      —     inconsistency in the grounds of the contested judge-
            ment and error of law, inasmuch as the Court of              Action brought on 6 December 2000 by the Commission
            First Instance held that the appellant had not               of the European Communities against the Grand Duchy
            established any manifest error of assessment in the                                     of Luxembourg
            context of the comparison of his merits with those
            of other officials, more particularly Mr G;                                             (Case C-450/00)
      —     error of law and inconsistency in the grounds of the
            contested judgement, inasmuch as the Court of First                                      (2001/C 45/22)
            Instance decided that there had been no breach of
            the principles of equal treatment and fairness in the
                                                                         An action against the Grand Duchy of Luxembourg was
            present case.
                                                                         brought before the Court of Justice on 6 December 2000 by
                                                                         the Commission of the European Communities, represented
                                                                         by Xavier Lewis, of its Legal Service, acting as Agent, with an
                                                                         address for service in Luxembourg at the office of Carlos
                                                                         Gómez de la Cruz, of its Legal Service, Wagner Centre,
                                                                         Kirchberg.
Action brought on 6 December 2000 by the Commission
                                                                         The Commission of the European Communities claims that
of the European Communities against the French Republic
                                                                         the Court should:
                         (Case C-449/00)                                 (1) declare that, by failing to bring into force within the
                                                                               prescribed time-limit the laws, regulations and adminis-
                          (2001/C 45/21)                                       trative measures, including provisions imposing penalties,
                                                                               which are necessary in order to comply with Directive
An action against the French Republic was brought before the                   95/46/EC of the European Parliament and of the Council
Court of Justice on 6 December 2000 by the Commission of                       of 24 October 1995 on the protection of individuals with
the European Communities, represented by Xavier Lewis, of                      regard to the processing of personal data and on the
its Legal Service, acting as Agent, with an address for service                free movement of such data (1), the Grand Duchy of
in Luxembourg at the office of Carlos Gómez de la Cruz, of its                Luxembourg has failed to comply with its obligations
Legal Service, Wagner Centre, Kirchberg.                                       under Article 32 of that directive;
The Commission of the European Communities claims that                   (2) order the Grand Duchy of Luxembourg to pay the costs.
the Court should:
(1) declare that, by failing to bring into force within the              Pleas in law and main arguments
      prescribed period the laws, regulations and administrative
      measures, including provisions imposing penalties, which
      are necessary in order to comply with Directive 95/46/EC           The pleas in law and main arguments are analogous to those
      of the European Parliament and of the Council of                   advanced in Case C-443/00 (2).
      24 October 1995 on the protection of individuals with
      regard to the processing of personal data and on the free
      movement of such data (1), the French Republic has failed          (1) OJ L 281 of 23.11.1995, p. 31.
      to comply with its obligations under Article 32 of that            (2) See p. 8 of this Official Journal.
      directive;
(2) order the French Republic to pay the costs.