CELEX: C1999/121/38
Language: en
Date: 1999-05-01 00:00:00
Title: Case T-31/99: Action brought on 27 January 1999 by ABB Asea Brown Boveri Ltd against the Commission of the European Communities

C 121/16              EN                      Official Journal of the European Communities                                       1.5.1999
                                                        COURT OF FIRST INSTANCE
Action brought on 16 January 1999 by Miguel Vicente                      In stating the reasons on which his claim for damages is based,
Nuñez against the Commission of the European Com-                       the applicant maintains that, according to settled case-law,
                            munities                                     delay in the drawing-up of a staff report by the administration
                                                                         which is not attributable to the official concerned constitutes
                         (Case T-10/99)                                  an administrative fault liable to cause the person concerned to
                                                                         suffer non-material damage, by reason of the state of uncer-
                                                                         tainty and worry in which he finds himself as a result of the
                        (1999/C 121/37)
                                                                         irregularity or incompleteness of his personal life.
                   (Language of the case: French)
An action against the Commission of European Communities
was brought before the Court of First Instance of the European
Communities on 16 January 1999 by Miguel Vicente Nuñez,
residing at Krainem (Belgium), represented by Marc-Albert                Action brought on 27 January 1999 by ABB Asea Brown
Lucas, of the Liège Bar, with an address for service at the              Boveri Ltd against the Commission of the European
offices of Fiduciaire Myson SARL, 30 rue de Cessange.                                                 Communities
The applicant claims that the Court should:                                                          (Case T-31/99)
— annul the contested decisions,
                                                                                                    (1999/C 121/38)
— order the defendant to pay him BEF 50 000 by way of
    compensation for the material damage suffered by him, as
    provisionally quantified,                                                                (Language of the case: English)
— order the defendant to pay him BEF 50 000 by way of                    An action against the Commission of the European Communi-
    compensation for the non-material damage suffered by                 ties was brought before the Court of First Instance of the
    him,                                                                 European Communities on 27 January 1999 by ABB Asea
                                                                         Brown Boveri Ltd, Zürich (Switzerland), represented by Dr
— order the defendant to pay the costs.                                  Andreas Weitbrecht and Dr Sven B. Völcker, of the Bar of
                                                                         Berlin, with an address for service in Luxembourg at the
                                                                         Chambers of Maître Marc Loesch, Loesch & Wolter, 11 rue
Pleas in law and main arguments adduced in support:                      Goethe.
The name of the applicant, a grade A 6 official, did not appear
on the list of officials considered to be most deserving of              The applicant claims that the Court should:
promotion to grade A 5, or on the list of officials promoted to
grade A 5 in the 1998 procedure for promotion from one                   — annul Article 3 of the Commission’s Decision of 21 Octo-
career bracket to the next.                                                  ber 1998 (Case IV/35.691/E-4-3: pre-insulated pipes) in so
                                                                             far as it relates to the applicant,
In support of his application, he pleads:                                — substantially reduce the fine imposed on the applicant, and
— the absence, alternatively irregularity, of any consideration          — order the Commission to pay the costs of the proceedings,
    of the comparative merits and staff reports of the applicant             including those of the applicant.
    in relation to those of the other persons eligible for
    promotion, arising from the fact that his personnel file and
    his latest staff report were not available at the time               Pleas in law and main arguments adduced in support:
    when the contested decisions were adopted, as well as
    infringement of Article 45(1) of the Staff Regulations,
                                                                         The applicant pleads that the Commission’s decision is based
— the absence, alternatively inadequacy, of any statement                on the following errors:
    of reasons for the contested decisions, together with
    infringement of the second paragraph of Article 25 of the            1. I n f r i n g e m e n t o f e s s e n t i a l p r o c e d u r a l
    Staff Regulations,                                                       r e q u i r e m e n t s : The Commission, in conducting the
                                                                             procedure leading up to the Decision, infringed essential
— infringement of Article 45(1) of the Staff Regulations,                    procedural requirements. In particular:
    inasmuch as the contested decisions were adopted not on
    the basis of the respective merits of those eligible for                   — the Commission denied the applicant the right to be
    promotion but on the basis of a rule whereby an official                        heard,
    whose name is put forward for promotion for the second
    time by his Directorate must be proposed for promotion                     — the Commission relied on facts that had not been
    by his Directorate-general.                                                     established,
 ---pagebreak--- 1.5.1999                 EN                    Official Journal of the European Communities                                       C 121/17
      — the Commission’s reasoning was defective, and                           — is disproportionate to reductions granted in other
                                                                                     cases.
      — the Commission relied on a case handler who has                   (1) OJ C 207, 18.7.1996, p. 4.
            displayed substantial bias against the applicant.             (2) Commission guidelines on the method of setting fines imposed
                                                                              pursuant to Article 15(2) of Regulation No 17 and Article 65(5)
                                                                              of the ECSC Treaty (OJ C 9, 14.1.1998, p. 3)..
2. I n f r i n g e m e n t o f t h e E C T r e a t y , i n c l u d i n g
    fundamental principles of Community
    l a w : The Commission, having induced the applicant
    to cooperate extensively pursuant to the newly issued
    Commission notice on the non-imposition or reduction of
    fines in cartel cases (the leniency notice) (1) retroactively
    applied the new fining guidelines (2) which generally lead            Action brought on 4 February 1999 by Elvira Méndez
    to fines higher than those assessed under the Commission’s                      Pinedo against the European Central Bank
    practice prevailing at the time when the applicant decided
    to cooperate. This conduct:                                                                     (Case T-33/99)
                                                                                                   (1999/C 121/39)
      — violates the principle of protection of legitimate
            expectations,
                                                                                            (Language of the case: Spanish)
      — violates the fundamental principle of a fair adminis-             An action against the European Central Bank was brought
            trative procedure,                                            before the Court of First Instance on 4 February 1999 by Elvira
                                                                          Méndez Pinedo, represented by Antonio Méndez Garcı́a, of the
                                                                          Madrid Bar, with an address for services at Calle Bravo Murillo
      — violates the principle of good administrative practice            36, 2nd floor, 28015, Madrid, Spain.
            and consistent application of Community law.
                                                                          The applicant claims that the Court of First Instance should
                                                                          examine the legality of the selection procedure with which this
3. I n f r i n g e m e n t o f A r t i c l e 1 5 ( 2 ) o f R e g u -      action is concerned.
    l a t i o n N o 1 7 : In setting the fine at ECU 100 million
    (before application of the leniency notice) the Commission
    infringed Article 15(2) of Regulation No 17. In particular:           Pleas in law and main arguments adduced in support:
                                                                          The applicant complains that it was materially impossible for
      — the fine is disproportionate to fines assessed against            her to submit her application in a procedure for the selection
            co-defendants in this case,                                   of staff organised by the European Central Bank, the announce-
                                                                          ment for which appeared in the Official Journal of the European
                                                                          Communities of 26 May 1998 (C 159). Such impossibility
                                                                          derived from the fact that the time limit laid down in the
      — the Commission erred in assessing the duration of the             notice for the submission of applications was much shorter
            infringement committed by the applicant,                      than that normally set in the Official Journal distributed on
                                                                          Spanish territory.
      — the Commission improperly took into account aggra-                In support of her claims, the applicant puts forward the
            vating circumstances, and                                     following pleas:
                                                                          — Infringement of essential procedural requirements laid
      — the Commission improperly disregarded extenuating                      down in Article 29 of the staff Regulations of officials of
            factors.                                                           the European Communities and Annex III thereto.
                                                                          — Breach of the principle of equal treatment or non-
4. M i s a p p l i c a t i o n o f t h e l e n i e n c y n o t i c e :         discrimination, in that a time limit as short as that laid
    The Commission improperly applied its own leniency                         down for the submission of applications in the competition
    notice vis-à-vis the applicant. The applicant should have                  at issue favours candidates residing in Luxembourg and
    been accorded a reduction of at least 50 %. In particular,                 others who became aware of the selection procedure by
    the reduction of merely 30 % granted by the Commission:                    other means.
                                                                          — Breach of the principle of good management and sound
                                                                               administration in relation to Article 27 of the Staff
      — puts the applicant into the same category as other                     Regulations of officials of the European Communities.
            co-defendants in this case, whose cooperation was —
            by the Commission’s own admission — far less
            extensive,