CELEX: C1996/077/34
Language: en
Date: 1996-03-16 00:00:00
Title: Action brought on 15 January 1996 by S against the Court of Justice of the European Communities (Case T-4/96)

16 . 3 . 96           I EN               Official Journal of the European Communities                                 No C 77/ 15
to the compatibility of an aid with the functioning of the          Action brought on 15 January 1996 by S against the Court
common market . It is clear from the substantive rules                        of Justice of the European Communities
referred to, and from the fact that exclusive powers are                                     ( Case T-4/96
conferred on the Commission , that the adjectival rules
under Article 93 ( 3 ) make it incumbent on the Member                                         ( 96/C 77/34 )
States to notify the Commission, before approval and
implementation within the Member State concerned, of any                            (Language of the case: French)
plans to grant aid which they intend adopting. In the event
of the Member States not observing the notification                 An action against the Court of Justice of the European
requirement, the prohibition of implementation of the               Communities was brought before the Court of First
measures concerned is fully effective domestically; that rule       Instance of the European Communities on 15 January 1996
can thus be relied on by a competitor before the national           by S, represented by Georges Vandersanden and Laure Levi,
courts if national procedural law provides means for                of the Brussels Bar, with an address for service in
challenging the aid granted, but the national courts must           Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue
confine themselves to ensuring the effectiveness of the             Glesener .
prohibition pending the Commission's final decision. By
virtue of those rules, the Commission is under a duty to give       The applicant claims that the Court should :
a decision as to the compatibility with the common market
of unnotified aid measures which have come to its notice in         — annul the decision of the Court of Justice of the
the mean time, in particular when it has been informed of               European Communities, in its capacity of appointing
their existence by a complaint lodged by a competitor of the            authority, of 11 April 1995 , in so far as it applies an
recipient of the aid.                                                   invalidity rate of 6 % for calculating the sum referred to
                                                                        in Article 73 of the Staff Regulations,
The applicant considers that in this case the Commission            — recognize the applicant's entitlement to the sum
was informed, by means of the complaint submitted, of the               provided for in Article 73 of the Staff Regulations,
adoption and implementation in Portugal of aid measures in              calculated on the basis of a rate of invalidity of 30% ,
favour of RTP, approved by the Government, without
fulfilment of the duty of notification . This means that the        — annul, in so far as necessary, the decision rejecting the
Commission should, within a reasonable period, have                     applicant's complaint, taken on 2 October 1995 and
adopted one of two decisions : either one approving the                 notified on 16 October 1995 ,
measures in question, after giving the Portuguese authorities
an apportunity to submit their observations, in the event of        — order the defendant to pay the costs .
its immediately coming to the view that the measures are
compatible with the common market; or a decision to                 Pleas in law and main arguments:
initiate an investigative procedure under Article 93 ( 2 ) in the
event of its being unable, on the basis of a straightforward        The applicant, a pensioned official of grade LA 6 at the
preliminary analysis, to consider such measures compatible          Court of Justice, challenges the method of calculation of the
with the common market. The Commission took neither                 sum referred to in Article 73 of the Staff Regulations, which
course, still being engaged in its preliminary examination          she claims is based on an incorrect rate of invalidity .
after two-and-a-half years .
                                                                    The contested decision was adopted on the basis of two
                                                                    medical reports from the medical committee, according to
The fact that the Commission did not express a view, at the         which the applicant has a permanent partial invalidity of
preliminary stage, undermines the applicant's rights, the           30 % , 20 % of which arose in the course of the performance
latter being prevented from securing judicial protection to         by the applicant of her duties in the defendant
safeguard its legitimate interests. Accordingly, the                institution .
applicant, on 1 1 August 1995, called on the Commission to
act: it sent a letter requiring the Commission, under and for       The applicant argues firstly that there has been a breach of
the purposes of Article 175 of the EC Treaty, to give a             Article 73 of the Staff Regulations and of Articles 3 ( 2 ) and
decision on the complaint submitted, in particular the              12 ( 2 ) of the Rules and the scale of rates of invalidity
request that a procedure be commenced under                         annexed thereto . She considers that when a disease or the
Article 93 ( 2 ). The Commission replied, albeit outside the        aggravation of a disease arises in the course of or in
period of two months laid down in Article 175 , by letter of        connection with the performance of duties with the
16 October 1995 ; in that letter the Commission did not take        Communities, the official is entitled to benefits and it is not
any position, merely stating that it had received a study and       necessary for the work in the institutions to have been the
would seek information from the Portuguese authorities in           predominant cause of the disease .
order to analyse the situation . Consequently, the
Commission is in breach of its obligation to adopt a measure        The applicant also submits that once the causal link had
defining its position on the complaint submitted to it by the       been established and the rate of permanent invalidity fixed
applicant.                                                          at 30 % , the defendant was in breach of Article 73 ( 2 ) ( c ) of
                                                                    the Staff Regulations and Articles 3 ( 2 ) and 12 ( 2 ) of the
                                                                    Rules and of the scale of rates of invalidity annexed thereto
                                                                    by taking a rate of 6 % into consideratioin for calculation of
                                                                    the sum in question .
 ---pagebreak--- No C 77/ 16           EN                  Official Journal of the European Communities                                      16 . 3 . 96
The applicant considers that the medical committee 's                responsible for more than 10 years, takes issue with the
reports are unlawful in so far as once the committee had             rejection of his application for the vacant post of
established a direct link between the disease and the                Director-General of DG J. He contends that one reason why
performance of an occupational activity, it had exhausted its        his application was unsuccessful lies in the need to have
task; the committee's breakdown in percentage terms of the           regard for a geographical balance in management posts
various factors which contributed to the emergence of the            within the institution .
applicant's disease exceeded the scope of the question
referred to it and had no basis in the Staff Regulations .           The applicant first of all claims that there has been a breach
                                                                     of Articles 4 and 29 ( 1 ) of the Staff Regulations inasmuch as
The applicant asserts, finally, that the method of calculation       the contested decisions were taken without prior
used by the defendant infringes the principle of equality.           consultation of the Permanent Representatives Committee.
Firstly, she is discriminated against in comparison with             In the present case, he argues, the Council was notified only
other persons less vulnerable to certain working conditions,         of the proposal by the Secretary-General, which merely
whereas every official must be recognized as fit for work at         refers to the list of posts for the 1995 budgetary year and to
the medical examination before recruitment. Secondly, the            the expediency of appointing the candidate who was
lack of provision in the applicable Community rules as to            ultimately successful to Grade A 1 with effect from 1 June
the method to be followed for evaluating the factors which           1995 , without reference to a specific post. It thus appears
may have led to the emergence of the occupational disease in         that :
itself constitutes a source of discrimination .
                                                                     — the appointing authority, which was not informed of
                                                                         either the list of officials who had applied for the post at
                                                                         issue or of the qualifications required for that post, did
                                                                         not even have the opportunity itself to consider the
                                                                         comparative merits of candidates, as required under
                                                                         Article 45 of the Staff Regulations,
Action brought on 16 January 1996 by Themistocles
 Contargyris against the Council of the European Union              — the Council adopted a decision of appointment which
                        ( Case T-6/96 )                                  was not designed, under the conditions laid down in the
                                                                         Staff Regulations, to fill a vacancy in a specific post,
                          ( 96/C 77/35 )
                                                                    — the decisions rejecting the applicant's candidature and
                (Language of the case: French)                           dismissing his complaint were unlawfully adopted by the
                                                                         Secretary-General, since the appointing authority's
                                                                         powers to fill the post at issue could lawfully be exercised
An action against the Council of the European Union was                  only by the Council .
brought before the Court of First Instance of the European
Communities on 16 January 1996 by Themistocles                      The applicant also takes the view that the terms in which the
Contargyris, residing in Brussels, represented by Jean-Noel          notice of vacancy in question was drafted were general and
Louis, Thierry Demaseure and Ariane Tornel, of the                   did not enable the appointing authority to consider the
Brussels Bar, with an address for service in Luxembourg at          comparative merits of the various candidates . He also claims
the offices of Fiduciaire Myson SARL, 1 Rue Glesener.               that the Secretary-General breached Articles 7 and 27 of the
                                                                     Staff Regulations by treating the need to establish a
The applicant claims that the Court should :                        geographical balance as a determinant criterion.
— annul the decision rejecting his application for the               Finally, the applicant claims that there has been a breach of
    Grade A 1 post in DG J 'Economic and Social                     the duty to state reasons as well as misuse of powers in this
                                                                    case .
    Cohesion, Regional Policy, Social Policy, Employment,
    Social Dialogue, Education and Youth, Culture,
    Audio-Visual',
— annul the Council's decision appointing another
    candidate to Grade A 1 ,                                        Action brought on 22 January 1996 by Antonia Carparelli
                                                                       against the Commission of the European Communities
— annul the decision assigning that other candidate to the
    post of Director-General of DG J,                                                          ( Case T-8/96 )
                                                                                                 ( 96/C 77/36 )
— annul the decision of the Secretary-General of the
    Council of 7 November 1995 dismissing the applicant's                            (Language of the case: French)
    complaint,
                                                                    An action against the Commission of the European
— order the defendant to pay the costs .                             Communities was brought before the Court of First
                                                                    Instance of the European Communities on 22 January 1996
Pleas in law and main arguments:                                     by Antonia Carparelli, residing in Brussels, represented by
                                                                    Jean-Noel Louis, Thierry Demaseure and Ariane Tornel, of
The applicant, who is a director in Directorate 1 of                the Brussels Bar, with an address for service in Luxembourg
Directorate-General G of the Council, for which he has been          at the offices of Fiduciaire Myson SARL, 1 Rue Glesener.