CELEX: C1995/315/39
Language: en
Date: 1995-11-25 00:00:00
Title: Action brought on 28 September 1995 by Patrick Barraux, Klaus Kammerichs and Vittorino Tebaldi against the Commission of the European Communities (Case T-177/95)

No C 315/20            EN                  Official Journal of the European Communities                                    25 . 11 . 95
Pleas in law and main arguments adduced in support:                   Action brought on 28 September 1995 by Patrick Barraux,
                                                                      Klaus Kammerichs and Vittorino Tebaldi against the
                                                                               Commission of the European Communities
 I. The applicant complains of infringement of essential
                                                                                              ( Case T- 177/95 )
procedural requirements . The applicant was not provided
with a translation into French, the language of the                                             ( 95/C 315/39 )
proceeding applicable in its case, of the minutes of the
hearing on 23 September 1993 . This constitutes an                                   (Language of the case: French)
infringement of Article 3 of Council Regulation No 1 . It also
resulted at the same time in a restriction of the applicant's
ability to defend itself.                                             An action against the European Communities was brought
                                                                      before the Court of First Instance of the European
                                                                      Communities on 28 September 1995 by Patrick Barraux,
II . The agreement concluded on 8 October 1982 between                residing at Karlsruhe ( Germany ), Klaus Kammerichs,
the applicant and BASF L + F does not infringe Article 85(1 )         residing at Stutensee ( Germany ) and Vittorino Tebaldi ,
of the EC Treaty .                                                    residing at Marxzell-Burbach ( Germany ), represented by
                                                                      Jean-Noel Louis, Thierry Demaseure, Veronique Leclerq
                                                                      and Ariane Tornel , of the Brussels Bar, with an address for
1 . The defendant could not have reached the contrary                 service in Luxembourg at the offices of Fiduciaire Myson
    conclusion were it not for the totally inadequate                 Sari , 1 Rue Glesener.
    clarification of the circumstances . The conduct of the
    parties was caused by the supply problems existing                The applicants claim that the Court should :
    during the period in question and the need to ensure
    uniformity in the provision of supplies to all of the
    markets served by the applicant.                                  — annul the applicants ' pay slips for the period from 1 July
                                                                          to 31 December 1994 ,
2 . There is nothing in the wording of the Treaty, or the way         — order the defendant to pay the applicants the
    in which it is applied, which conflicts with that                     remuneration to which they are entitled, together with
    interpretation . In the light of the evolution of the Treaty,         default interest calculated at the annual rate of 8 % from
    and the way in which it is applied, the term 'pass on '               the date when the remuneration became due until the
    used in the agreement can only have meant that the                    date when it is paid,
    applicant was to keep BASF L + F informed about the
    flow of goods . That was a legally unobjectionable               — order the defendant to pay the costs .
    practice . The provision of such information was
    particularly indispensable in times of shortage, in order
    to ensure, as far as possible, uniformity of supply to the        Pleas in law and main arguments adduced in support:
    different markets and to avoid a situation in which
    coach-building works switched to other competitors .              The applicants, three Commission officials employed in the
                                                                      Institute for Transuranic Elements, Karlsruhe, contest the
                                                                      reduction of their remuneration with retroactive effect in
3 . If the evidence submitted is interpreted in the light of          consequence of the entry into force of Council Regulation
    that background, it becomes clear that its overall                ( EC, ECSC, Euratom ) No 3161 /94 adjusting, with effect
    context supports the applicant's case : the conduct of the        from 1 July 1994, the remuneration and pensions of officials
    parties involved is due purely and solely to the shortage         and other servants of the European Communities and the
    situation and the problems arising from it . It cannot be        weightings applied thereto .
    attributed to any collusion .
                                                                     That Regulation, adopted in compliance with the judgment
                                                                      of 27 October 1994 in Case T-64/92 , in which the Court of
4 . Even if the agreement in question could be regarded as
    constituting an infringement of Article 85 ( 1 ) of the EC        First Instance held that the Council was not empowered to
    Treaty, such infringement was negligible in its effects .         fix a weighting for Germany on the basis of the cost of living
    The part of the market which was affected by the Treaty           in a city other than the capital , provides in particular, in
    and by the single case of non-delivery was so minuscule          Article 6(1 ), for the fixing of a specific weighting applicable
    that there can be no question of market conditions               to the remuneration of officials employed at Karlsruhe .
    having been affected .
                                                                     The applicants plead, first of all , the illegality of the
                                                                      aforementioned Regulation, inasmuch as the power of the
5 . The defendant's assumption regarding the duration of              Council to prescribe weightings pursuant to Articles 64 and
    the agreement is untenable . Since there was in any event         65 of the Staff Regulations and Article 9 of Annex XI
    only one single case of refusal to supply, a distinction         thereto, which entails the obligation, in accordance with the
    should have been drawn in assessing the duration .                principle of equality of treatment between officials, to fix a
                                                                      specific weighting ' forthwith', may only be exercised in the
                                                                     event that an appreciable disparity is found to have arisen
                                                                      between the cost of living in a place of employment and the
                                                                     cost of living in the capital .
 ---pagebreak--- 25 . 11 . 95           EN                 Official Journal of the European Communities                                No C 315 /21
Similarly, Article 65 ( 2 ) of the Staff Regulations provides        possible for potential candidates from other Community
that, in the event of a substantial change in the cost of living,    institutions to learn of the notice in question until after the
measures must be taken within two months to adjust the               time limit for the submission of applications had expired or,
weightings . Furthermore, the Community legislature has              at best, until a few hours before its expiry .
provided that the annual adjustment of remuneration must
be decided before the end of each year and must take effect          The applicant pleads :
from 1 July in that year . The legislature has thus permitted        — misuse of powers, together with breach of the principle
the Council to adjust the remuneration of officials only once            of equality of treatment and non-discrimination
in each year, if appropriate with retroactive effect . On the            between officials,
other hand , it has prescribed a particularly short time limit
for the adoption by the Council of the measures necessary in         — infringement of Article 25 of the Staff Regulations ,
order to eliminate any variation between the purchasing                  inasmuch as, although the decision rejecting the
power of officials . According to the applicants, that degree            application of the applicant was taken on 5 December
of leeway is understandable, inasmuch as that adjustment                  1 994 , it was only communicated to him by the defendant
cannot, in accordance with Article 85 of the Staff                       institution by letter dated 10 February 1995 , which
Regulations, result in a reduction of remuneration .                     contained no statement of reasons whatever, which was
                                                                         stamped 13 February 1995 and which was not brought
Thus, by adopting the contested Regulation with retroactive              to the knowledge of the applicant until 16 February
effect, the Council has disregarded the principles of the                 1995 , and
protection of legitimate expectations, of equality of
treatment, of non-discrimination between officials and of            — infringement of Article 45 of the Staff Regulations , in
established rights .                                                     that the appointing authority did not examine the
                                                                         comparative merits of the candidates, as it was required
                                                                         to do under that provision .
Action brought on 28 September 1995 by Santo Picciolo
            against the Committee of the Regions                     Action brought on 28 September 1995 by Giuseppe Calo
                        ( Case T-178/95 )                                          against the Committee of the Regions
                          ( 95/C 315/40 )                                                     ( Case T- 179/95 )
                                                                                                ( 95/C 315/41 )
                (Language of the case: French)
                                                                                       (Language of the case: French)
An action against the Committee of the Regions was
brought before the Court of First Instance of the European           An action against the Committee of the Regions was
Communities on 28 September 1995 by Santo Picciolo ,                 brought before the Court of First Instance of the European
residing at Itzig ( Luxembourg), represented by Jean-Noel            Communities on 28 September 1995 by Giuseppe Calo,
Louis, Thierry Demaseure and Ariane Tornel, of the                   residing in Luxembourg, represented by Jean-Noel Louis ,
Brussels Bar, with an address for service in Luxembourg at           Thierry Demaseure and Ariane Tornel , of the Brussels Bar,
the offices of Fiduciaire Myson Sari, 1 Rue Glesener .               with an address for service in Luxembourg at the offices of
                                                                     Fiduciaire Myson Sari , 1 Rue Glesener.
The applicant claims that the Court should:
                                                                     The applicant claims that the Court should :
— annul the decisions rejecting the application of the
                                                                     — annul the decisions rejecting the application of the
     applicant for post Cdr/1/94 as Head ( A2 ) of the                    applicant for post Cdr/1 /94 as Head ( A2 ) of the
     Directorate for the Registry, Administration and the
                                                                          Directorate for the Registry, Administration and the
     Budget of the Committee of the Regions and appointing                Budget of the Committee of the Regions and appointing
     another person to that post,                                         another person to that post,
— order the defendant to pay the costs .                              — order the defendant to pay the costs .
 Pleas in law and main arguments adduced in support:                  Pleas in law and main arguments adduced in support:
 The applicant, an official of the European Parliament,               The applicant, an official of the European Parliament,
 contests the manner in which the procedure for appointing a          contests the manner in which the procedure for appointing a
 Head of Administration and the Registry of the Committee             Head of Administration and the Registry of the Committee
 of the Regions has been conducted .                                  of the Regions has been conducted .
 He states that the notice of vacancy in respect of that              The pleas in law and main arguments are the same as those
 appointment was drawn up by the service headed by the                in Case T-178 /95 Santo Picciolo v. Committee of the
 successful candidate , who was, moreover, chosen in                  Regions .
 advance . Because the time limit for the submission of
 applications was deliberately foreshortened, it was not