CELEX: C1998/340/52
Language: en
Date: 1998-11-07 00:00:00
Title: Action brought on 11 September 1998 by Michael Cendrowicz against the Commission of the European Communities (Case T-143/98)

7.11.98               EN                Official Journal of the European Communities                                   C 340/27
The applicant claims that the Court should:                        Finally, the applicant points out that the purpose for
                                                                   which the Community funding was granted was actually
                                                                   achieved in the stipulated budgetary context and,
Ð annul the decision adopted by the European                       consequently, the defendant's interest cannot be affected
     Commission on 10 June 1998, sent by registered post           by the maintenance of the payments made at the time. It
     on 7 July 1998 and received by the applicant on 9 July        concludes that the annulment of those payments, by the
     1998, demanding repayment of the sum of ECU                   unforeseeable decision to demand repayment of certain
     135 548 and, in so far as is necessary, annul the             sums more than five years after the conclusion of the
     measures implementing that decision;                          project, was made with blatant disregard for the principle
                                                                   of proportionality.
Ð order the defendant to pay all the costs.
Pleas in law and main arguments adduced in support:
The applicant states that in 1990, in the context of the           Action brought on 11 September 1998 by Michael
action programme for the European Year of Tourism                  Cendrowicz against the Commission of the European
(EYT), the Commission granted it a Community financial                                      Communities
contribution towards its project Europuzzle Ð pays de
                                                                                          (Case T-143/98)
l'Est'. A first instalment of 80 % of the contribution was
paid in 1991, and the balance of 20 % was paid on                                          (98/C 340/52)
13 March 1992, following the report submitted to the
Commission by the applicant on the use of the financial
                                                                                   (Language of the case: French)
contribution in question.
                                                                   An action against the Commission of the European
The applicant points out that, since the payment of the            Communities was brought before the Court of First
balance, no observations concerning the regularity of the          Instance of the European Communities on 11 September
payments in respect of the project have been made to it by         1998 by Michael Cendrowicz, residing in Brussels,
the Commission. In July 1998, however, it received a letter        represented by Lucas Vogel, of the Brussels Bar, with an
from the Commission demanding repayment of part of the             address for service at the offices of Fiduciaire Myson
Community subsidy, the contested decision in the present           SARL, 30 rue de Cessange.
case.
                                                                   The applicant claims that the Court should:
The applicant submits that the contested decision was
adopted in breach of the rights of the defence, in so far as,
since it was never informed of the allegations made by the         Ð annul the undated decision of the Commission
European Commission in respect of the regularity of the                 rejecting the application made by the applicant for
payment of the financial aid received by it, it was not                 post COM/98/97 (Head of Unit 1 Ð India, Nepal,
possible for it usefully to submit its comments on that                 Bhutan, Sri Lanka, in Directorate C of Directorate-
matter.                                                                 General IB), receipt of which was acknowledged by
                                                                        him on 16 September 1997;
The applicant maintains, furthermore, that the contested
decision breaches the principles of legal certainty and the        Ð annul the Commission's decision of 9 August 1997
protection of legitimate expectations. It points out that,              appointing another person to that post;
pursuant to the decision granting the financial
contribution and the statement by the recipient of a               Ð order the Commission to pay to the applicant, by way
financial contribution, it undertook to keep supporting                 of compensation for the non-material damage suffered
documents for the purposes of checks for five years. After              by him as a result of the illegality of the contested
that five year period, which began at the latest when the               decisions, the sum of BFR 100 000, subject to increase
project was concluded (that is to say when the balance                  or decrease during the course of the proceedings;
was paid), it was no longer required to keep the
supporting documents and the Commission therefore no
longer had the right to carry out checks. In so far as those       Ð order the Commission to pay the costs.
checks constitute the basis for a possible challenge to the
sum or a part of the sum allocated, that means that at the         Pleas in law and main arguments adduced in support:
end of those five years, on 12 March 1997, the defendant
could no longer demand repayment and the applicant
could rely on the apparent legality of the payments and            The applicant, a grade A 4 official, contests the rejection
claim to be entitled to keep them.                                 of his application for the post described above. He states
                                                                   in that regard that virtually all his career has been spent in
                                                                   the performance of duties relating to Asian countries and
The applicant also considers that the contested decision is        that he was the acting Head of Unit IB/C/1 following the
vitiated by an error of reasoning, in so far as the criticisms     retirement of the Head of Unit, his hierarchical superior,
on which it is based have no factual basis.                        who was a grade A 3 official at that time.
 ---pagebreak--- C 340/28             EN                 Official Journal of the European Communities                                     7.11.98
As regards the person ultimately appointed to the post in          Pleas in law and main arguments adduced in support:
issue by the appointing authority, the applicant argues that
that person lacked professional experience in the field in         The applicant contests the refusal of the appointing
question, and that the appointment of that person resulted         authority to accept his application for the post referred to
from the application of political pressure at the highest          above. He maintains in that regard that, according to the
level.                                                             information brought to his notice, it would have been
                                                                   clear from an examination of the personal files of those
The applicant puts forward the following pleas in support          who applied for the post at issue in response to an initial
of his claim:                                                      notice of vacancy concerning that post that the applicant
                                                                   fulfilled the requirements of the post in question and that
Ð illegality of the decision fixing the level of the post to
                                                                   his appointment to that post would have been in the
    be filled at grade A 5/A 4, inasmuch as that decision
                                                                   interests of the service. Moreover, his application had the
    was adopted having regard not to the importance of
                                                                   unconditional support of the Director-General then
    the tasks performed by the unit but to the grade of the
                                                                   competent in the matter and of the Secretary-General at
    official appointed;
                                                                   the time. However, the applicant was appointed to the
Ð infringement of Article 27(3) of the Staff Regulations;          post in issue only on a temporary basis, with effect from
                                                                   1 February 1997. On 9 January 1998 the appointing
Ð absence, alternatively inadequacy, of consideration of           authority terminated that temporary appointment.
    the comparative qualifications and merits of the               Meanwhile, a notice of vacancy had been published
    candidates by the Advisory Committee on                        pursuant to Article 29(1)(c) of the Staff Regulations,
    Appointments, which did not examine their personal             which repeated the requirements as to qualifications and
    files;                                                         knowledge contained in the initial notice of vacancy.
Ð disregard of the criteria of professional experience and
                                                                   In support of his claims, the applicant pleads, first,
    competence referred to in the notice of vacancy in
                                                                   infringement of Articles 4 and 29 of the Staff Regulations,
    issue;
                                                                   breach of the principle of equal treatment and dereliction
Ð inadequacy of the statement of reasons for the                   on the part of the defendant of its duty to have regard for
    contested decision;                                            the welfare and interests of officials, in that it decided to
                                                                   resort to the transfer procedure provided for by
Ð misuse of powers in present case, together with a                Article 29(1)(c) of the Staff Regulations without first
    manifest error of assessment.                                  considering whether to hold a competition internal to the
                                                                   institution.
                                                                   He also pleads infringement of Article 7(1) and of the
                                                                   third paragraph of Article 27 of the Staff Regulations and
Action     brought on 14 September 1998 by             Dino        breach of the principles of non-discrimination and of the
         Cantoreggi against the European Parliament                protection of legitimate expectations, together, in the
                      (Case T-144/98)                              present case, with misuse of powers, inasmuch as the
                        (98/C 340/53)                              appointing authority appointed a person to the post in
                                                                   question without being guided solely by the interests of
               (Language of the case: French)                      the service; the appointment in issue was made on the
                                                                   basis of a nationality quota and with a view to reserving
An action against the European Parliament was brought              the post for a person who, it appears, is of the same
before the Court of First Instance of the European                 nationality as the President of the European Parliament,
Communities on 14 September 1998 by Dino Cantoreggi,               the latter having acted as the appointing authority in that
residing in Brussels, represented by Eric Boigelot, of the         context.
Brussels Bar, with an address for service in Luxembourg at
the Chambers of Louis Schiltz, 2 rue du Fort Rheinsheim.           Lastly, the applicant considers that he fulfilled all the
                                                                   conditions for appointment to the post in issue, and that
The applicant claims that the Court should:                        the contested decision was adopted on the basis of
Ð annul the appointing authority's decision of                     incorrect considerations, alternatively without taking into
    12 February 1998 by which it appointed another                 account the interests of the service alone. Consequently, it
    person to the post of head of division (in grade A 3,          is vitiated by reasoning which is based on incorrect
    step 1) in the Directorate-General for Administration,         criteria and infringes Article 7, the second paragraph of
    based in Brussels, pursuant to Notice of Vacancy               Article 25 and Articles 29(1) and 45 of the Staff
    No 8045 (post No VI/A/1297) and Notice of Transfer             Regulations; it also breaches certain general legal
    No PE/A/208;                                                   principles, such as the principles of the protection of
                                                                   legitimate expectations and of non-discrimination. The
Ð annul the appointing authority's decision rejecting the          applicant states in that regard that, for the purposes of his
    applicant's application for that post, which was               possible appointment to the post, he possessed, in addition
    contained in Note No 6006 drawn up by HeÂleÁne                 to his specific qualifications, the advantage of being
    Puech, Head of the Recruitment and Personnel                   familiar with the history of the buildings concerned and
    Management Department and sent to the applicant on             with the institution itself, and of being extremely highly
    25 February 1998;                                              qualified in technical managment.
Ð order the defendant to pay all the costs in any event.