CELEX: C1995/333/29
Language: en
Date: 1995-12-09 00:00:00
Title: Action brought on 28 August 1995 by Hedwig Kuchlenz-Winter against the European Parliament (Case T-164/95)

9 . 12 . 95           EN                  Official Journal of the European Communities                                   No C 333/ 15
      — The decision discontinuing aid was taken on the                     Action brought on 28 August 1995 by Hedwig
          basis of the erroneous proposal of the Italian                  Kuchlenz-Winter against the European Parliament
          authority in infringement of the notice granting aid                                ( Case T- 164/95 )
          and contrary to Regulation ( EEC ) No 2908/83 . The
                                                                                                ( 95/C 333/29 )
          only condition expressly provided for in the notice
          granting aid for its discontinuation was that the
          project should not have been begun within two                              (Language of the case: German)
          years . The Commission should have ascertained
          whether the issue of the certificate of fitness            An action against the European Parliament was brought
          constituted one of the 'conditions imposed' for the        before the Court of First Instance of the European
          project, within the meaning of Article 18 of the           Communities on 28 August 1995 by Hedwig Kuchlenz­
          Regulation, instead of 'referring' to the opinion of       Winter, residing at Kehlen ( Luxembourg ), represented by
          the Ministry for the Merchant Navy on the ( alleged )      Dieter Rogalla , Rechtsanwalt, Sprockhovel ( Federal
          need to obtain that certificate .                          Republic of Germany ), with an address for service in
                                                                     Luxembourg at the Chambers of Armin Machmer, 1 Rue
                                                                     Roger Barthel, Bereldange .
      — Likewise, the notice granting aid and Regulation
          ( EEC ) No 2908/83 ( and Commission Regulation             The applicant claims that the Court should :
          ( EEC ) No 378/84 ) have been infringed and
          disregarded having regard to the fact that not only        — declare that the European Parliament has unlawfully
          was the certificate of fitness not a 'condition                failed to act in relation to the applicant, inasmuch as,
          imposed' by the notice granting aid, it was not even           following the pension rights adjustment effected in the
          a document which served a purpose or was linked                applicant's favour pursuant to paragraph 1587 etseq. of
          to establishing whether the plant had been                     the Biirgerliches Gesetzbuch ( German Civil Code ), the
          constructed .                                                  applicant should not have been excluded from the
                                                                         sickness insurance scheme; the defendant omitted to
                                                                         prevent that from happening, in that it unlawfully failed,
      — The notice granting aid and the regulation which                 within the framework of its powers in relation to the
          governs it have been infringed inasmuch as                     scheme, to propose to the competent EC institutions the
          information as to whether the applicant fulfilled the          corresponding amendments to the Staff Regulations of
          conditions for the grant of aid for guidance                   Officials,
          programmes has not been taken into account,
          considered or asked for. The carrying out of the           — order the defendant to pay the costs.
          project, albeit with aid from Community, has
          enabled the creation of jobs; wealth has been              Pleas in law and main arguments :
          generated, production has been started and
          developed, all in conformity with the objectives of        The applicant, a former official of the Court of Justice and of
          the Community.                                             the Commission of the European Communities, is the
                                                                     divorced former spouse of an official of the Parliament. She
                                                                     contests the fact that, under Article 72 ( lb ) of the Staff
                                                                     Regulations , she ceased, with effect from 1 April 1995 , to
( b ) Breach of the principle of proportionality                     qualify for cover under the sickness insurance scheme of the
                                                                     Communities, since that provision of the Staff Regulations
      The principle of proportionality is breached by the            entitles the divorced spouse of an official who provides
      penalty of discontinuing the aid on a ground which is          evidence that he or she cannot be covered by any other
      formalistic rather than formal and which, it may be            public scheme of sickness insurance to remain covered by
      said, placing a personal construction upon it, goes            the Community scheme for a period of only one year from
                                                                     the date of the decree absolute of divorce .
      beyond and is contrary to the legislation — it being
      legally impossible to obtain the formal document —             Following her marriage, the applicant ceased to work as a
      when in fact the practical and positive outcome is that        Community official, having completed seven and a half
      the plant has been built and work and wealth have been         years' service. Throughout her marriage she was entitled, as
      created .
                                                                     the spouse of an official, to benefits under the Community
                                                                     sickness insurance scheme. After her divorce, the applicant
                                                                     was unable to obtain sickness insurance cover in Germany,
( c ) Misuse of powers                                               her country of origin, in either a compulsory or a private
                                                                     sickness insurance scheme, and has therefore been
                                                                     compelled to continue to live in the Grand Duchy of
      The decision to discontinue the aid is ultra vires
                                                                     Luxembourg, in order not to lose her entitlement to sickness
      inasmuch as it departs from the objective referred to          insurance cover. That situation is particularly difficult for
      in the notice granting aid and thus departs from               her, because she suffers from a serious illness.
      Community law and the purpose and aims thereof.
                                                                     The applicant complains that the European Parliament has
                                                                     failed, within the context of its powers, to take any initiative
                                                                     to fill the gap in the rules revealed in the relevant provision of
                                                                     the Staff Regulations.
 ---pagebreak--- No C 333/ 16          EN                  Official Journal of the European Communities                                      9 . 12 . 95
The pleas and main arguments are the same as those                   First Instance on 3 October 1995 by Nutria AE, a company
advanced by the applicant in Case T-66/95 Kuchlenz­                  governed by Greek law, having its registered office in Agios
Winter v. Commission .                                               Konstantinos, Fthiotida ( Greece ), represented by
                                                                     Konstantinos Adamadopoulos, of the Athens Bar, with an
                                                                     address for service in Luxembourg at the Chambers of
                                                                     Arsene Kronshagen, 12 Boulevard de la Foire .
Action brought on 5 September 1995 by Hedwig
Kuchlenz-Winter against the Council of the European                  The applicant claims that the Court should :
                               Union
                       ( Case T-167/95 )
                          ( 95/C 333/30 )
                                                                     1 . order the Commission to pay it compensation of
                                                                           Dr 288 304 629 plus default interest at the rate of 29 %
                                                                           from 5 December 1994 for actual losses and lost profits
               (Language of the case: German)                              suffered in the olive oil marketing year 1994/95 caused
                                                                           by the unlawful conduct of the Commission;
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 5 September 1995 by Hedwig                            2 . order the Commission to pay it compensation of
Kuchlenz-Winter, residing at Kehlen ( Luxembourg ),                        Dr 82 500 000 for the damage suffered by the applicant
represented by Dieter Rogalla, Rechtsanwalt, Sprockhovel                   by reason of the harm to its commercial reputation
( Federal Republic of Germany ), with an address for service               caused by the unlawful conduct of the Commision;
in Luxembourg at the Chambers of Armin Machmer, 1 Rue
Roger Barthel, Bereldange .
                                                                     3 . order the Commission to pay the costs .
The applicant claims that the Court should :
— declare that the Council has unlawfully failed to act in
    relation to the applicant, inasmuch as, following the            Pleas in law and main arguments:
    pension rights adjustment effected in the applicant's
    favour pursuant to paragraph 1587 et seq. of the
    Biirgerliches Gesetzbuch ( German Civil Code ), the              The applicant is a company which mass-produces and
    applicant should not have been excluded from the                 markets agricultural products . It took part in the tendering
    sickness insurance scheme; the defendant omitted to              procedure announced by the Commission of the European
    prevent that from happening, in that it unlawfully failed,       Communities for the despatch of 3 000 tonnes of olive oil to
    within the framework of its powers in relation to the            the people of Georgia and Armenia on the basis of
    scheme , to propose to the competent EC institutions the         Commission Regulations ( EEC ) Nos 2494/94 and 2693/94
    corresponding amendments to the Staff Regulations of             and succeeded in being awarded the supply of 1 500 tonnes
    Officials,                                                       of olive oil . The applicant maintains that because of the
                                                                     two-month delay in taking over the goods on the part of the
— order the defendant to pay the costs .                             transporter, the choice of which was the sole responsibility
                                                                     of the Commission under Regulation ( EC ) No 2693/94, it
Pleas in law and main arguments:                                     suffered significant losses and lost profits . In particular the
                                                                     applicant claims, on the basis of Articles 178 and the second
The pleas and main arguments advanced by the applicant               paragraph of Article 215 of the Treaty: ( a ) compensation for
are   the   same   as    those    invoked  in   Case   T-66/95       the actual losses suffered, that is to say the warehousing and
Kuchlenz-Winter v. Commission and in Case T-l 64/95                  supervision charges paid during the period of the delay; ( b )
Kuchlenz-Winter v. Parliament.                                       lost profits, in view of the fact that the security lodged in the
                                                                     context of the tendering procedure with the Commission
                                                                     could not be released, with the result that the applicant
                                                                     could not obtain financing to carry out commercial
                                                                     transactions on the market and resell quantities of olive oil
                                                                     at a period that is extremely crucial for the olive oil market;
Action brought on 3 October 1995 by Nutria AE against the            ( c ) default interest on the amount of the actual losses and
        Commission of the European Communities                       lost profits at the interest rate prevailing in Greece ( 29 % );
                       ( Case T-180/95                               and ( d ) lost profits on the ground of the harm to its
                                                                     commercial reputation and consequent loss of customers in
                          ( 95/C 333/31 )                            the commercial year 1995/96 .
                (Language of the case: Greek)
An action for damages against the Commission of the
European Communities was brought before the Court of