CELEX: C1999/314/27
Language: en
Date: 1999-10-30 00:00:00
Title: Case T-192/99: Action brought on 31 August 1999 by Roderick Dunnett, Thomas Hackett, and Mateo Turró Calvet against the European Investment Bank

C 314/12              EN                     Official Journal of the European Communities                                    30.10.1999
In support of the forms of order sought, the applicants allege:         — in the alternative, to annul the said decision purportedly
                                                                            taken by the Management Committee;
— infringement of Article 253 (formerly Article 190) and
    Article 255 (formerly Article 191a) of the EC Treaty, as
    amended by the Treaty of Amsterdam;                                 — further or in the alternative, to annul the decision taken by
                                                                            the Board of Directors of the European Investment Bank
                                                                            on 23 February 1999;
— breach of the code of conduct of 6 December 1993,
    adopted by Commission Decision 94/90/ECSC, EC, Eura-
    tom, on public access to Commission documents; and                  — further to annul the payslips issued to the applicants in
                                                                            respect of their remuneration for the month of January
— breach of the principles of logical coherence, rationality                1999 and for successive months;
    and proper balancing of interests, which must direct the
    exercise of any discretion conferred upon the Commission
    in such matters.                                                    — to order the payment to the applicants by the Bank, with
                                                                            interest, of the difference between the amounts which the
                                                                            applicants have received by way of remuneration since
The above code of conduct refers, when stating general                      1 January 1999, and the amounts which they would have
principles, to ‘Commission and Council documents’, and                      received if the ‘special conversion rate’ had been applied;
defines ‘document’ as ‘any written text ... which ... is held by
the Commission or the Council’. However, a decision such as
the contested decision does not meet the requirement of                 — order the payment by the Bank of the applicants’ costs of
transparency laid down by the Treaty of Amsterdam. Lastly,                  these proceedings.
according to the applicants, it does not appear that any of the
documents relating to the procedure under Article 226 of the
Treaty is covered by the exemption based or public law. In any
event, the exemption does not operate on the basis of
indiscriminate blanket coverage, but requires a specific state-         Pleas in law and main arguments
ment of reasons in respect of each individual document.
                                                                        The dispute which is the subject of these proceedings relates
                                                                        to action taken by the European Investment Bank in connec-
                                                                        tion with the introduction, as from 1 January 1999, of the
                                                                        euro as a single currency in 11 out of the 15 Member States of
                                                                        the European Union. Like the other institutions and bodies of
                                                                        the European Union, the Bank has chosen to replace the
                                                                        Belgian and Luxembourg franc (BEF/LUF) with the euro as the
Action brought on 31 August 1999 by Roderick Dunnett,                   currency in which, from January 1999, the remuneration and
Thomas Hackett, and Mateo Turró Calvet against the                     pensions of its staff are to be expressed and calculated. The
                 European Investment Bank                               impact of the change of the purchasing power of the officials
                                                                        of those other institutions and bodies is intended to be entirely
                                                                        neutral. That is in contrast to the position in which, as
                        (Case T-192/99)
                                                                        from January 1999, members of the staff of the Bank find
                                                                        themselves. Some of them have suffered a significant loss of
                        (1999/C 314/27)                                 purchasing power, as compared with their position in Decem-
                                                                        ber 1998, owing to the discontinuation of the mechanism
                                                                        known as the ‘special conversion rate’, which has been applied
                  (Language of the case: English)                       by the Bank since 1982 in respect of the portion of an
                                                                        individual’s remuneration payable in a currency other than
                                                                        BEF/LUF.
An action against the European Investment Bank was brought
before the Court of First Instance of the European Communities
on 31 August 1999 by Roderick Dunnett, Thomas Hackett                   There appears to be no formal text of a decision of the
and Mateo Turró Calvet, represented by Professor A.A. Dash-            Management Committee abolishing this mechanism. The only
wood and Wendy Outhwaite, with an address for service in                trace of such a decision can be found in some documents
Luxembourg at the Chambers of Arsène Kronshagen, 22 rue                 that refer to the adoption of a decision by the so-called
Marie Adelaïde.                                                         ‘non-opposition procedure’, which was concluded on 11 June
                                                                        1998. At its meeting of 23 February 1999, the Board of
The applicant claims that the Court should:                             Directors purported to confirm the Management Committee’s
                                                                        Decision to abolish the mechanism. The payslips of the
— declare that the internal note to the Management Com-                 applicants for the month of January 1999 show that the
    mittee of the European Investment Bank dated 5 June                 discontinuance of the mechanism has taken effect.
    1998 and the minutes of the decision of the Management
    Committee thereon dated 10 and 11 June 1998 do not,
    taken together, constitute a valid decision of the Manage-          The applicants consider, however, that in fact the Management
    ment Committee to abolish, as from the introduction of              Committee has not adopted a decision to abolish the mechan-
    the single currency on 1 January 1999, the so-called                ism in the context of the non-opposition procedure of June
    ‘special conversion rate’;                                          1998. In the absence of such a decision, the mechanism
 ---pagebreak--- 30.10.1999              EN                   Official Journal of the European Communities                                       C 314/13
would not automatically have become inapplicable on the                 Action brought on 30 August 1999 by Cristiano Sebasti-
introduction of the euro. Nor could the decision of the Board           ani against the Commission of the European Communities
of Directors of 23 February 1999 have given the abolition of
the mechanism retroactive force by ‘confirming’ a non-existent                                  (Case T-194/99)
decision of the Management Committee. It would follow
that the mechanism remained applicable in principle to the
remuneration of all the staff at the Bank. On that hypothesis,                                  (1999/C 314/28)
the applicants submit that it would be appropriate for the
Court to annul their January payslips in so far as these contain
no element relating to the application of the mechanism, and                              (Language of the case: French)
to order the Bank to reinstate the mechanism and to continue
to apply it.                                                            An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 30 August 1999 by Cristiano
If, however, the Court takes the view that such a decision was          Sebastiani, residing in Brussels, represented by Jean-Noël
actually taken, the applicants state that it is unlawful and            Louis, Greta-Françoise Parmentier and Véronique Peere, of the
should be annulled on the following grounds:                            Brussels Bar, with an address for service in Luxembourg at
                                                                        Fiduciaire Myson SARL, 30 Rue de Cessange.
1. The decision was adopted without proper consultation of              The applicant claims that the Court should:
     the official Staff Representatives as required by Article 24
     of the Staff Regulations.                                          — annul the Commission’s decision not to promote him
                                                                            to Grade A 6 in the context of the 1998 promotions
                                                                            operation;
2. The decision is based on an error of law such to alter its
     essential character and hence:
                                                                        — order the Commission to pay the costs.
     — the decision taken was ultra vires the Management
         Committee;                                                     Pleas in law and main arguments
                                                                        The applicant challenges the appointing authority’s refusal to
     — the Management Committee failed to give due con-                 promote him during the 1998 promotions operation.
         sideration to all the matters relevant to a decision of
         the kind in question; and
                                                                        In support of his claim, the applicant pleads:
     — the procedure followed by the Management Committee               — infringement of Articles 26, 43 and 45 of the Staff
         was unlawful.                                                      Regulations,
                                                                        — infringement of the rights of defence,
3. The decision violates a right enjoyed by members of the
     staff under their contracts of employment with the Bank,           — breach of the principles of equality of treatment, good
     such rights having either                                              administration and entitlement to reasonable career pros-
                                                                            pects, and
     — been incorporated by mutual consent into individual              — breach of the obligation to state reasons.
         contracts of employment; or
                                                                        The applicant states that his personal file did not, on the date
     — arisen through the operation of the principle of                 of comparative assessment of the merits of the candidates for
         acquired contractual rights which is known, in some            promotion to Grade A 6 in the context of the promotions
         form, to the employment law of most of the Member              operation in question, contain any report on the work he had
         States and which applies to the contracts of employ-           done as an administrator.
         ment of Bank staff by virtue of Article 44 of the Staff
         Regulations.                                                   Furthermore, the note from the Assistant Director-General of
                                                                        DG XII which stated that the applicant had been replaced
                                                                        as official correspondent for the Advisory Committee on
4. The decision violates the legitimate expectations of the             Procurement and Contracts for DG XII with effect from
     staff which were aroused by a course of conduct of the             1 September 1996, was not drawn up as soon as the relevant
     Bank’s Administration amounting to a clear assurance that          decision was adopted, nor was a copy of the note sent to the
     the mechanism would continue to be applicable after                applicant, nor was it included in his personal file. The members
     1 January 1999.                                                    of the Promotions Committee would not, therefore, have been
                                                                        aware of an essential piece of information concerning the
                                                                        applicant’s administrative status.