CELEX: C1997/199/76
Language: en
Date: 1997-06-28 00:00:00
Title: Action brought on 16 April 1997 by Richie Ryan against the Court of Auditors (Case T-121/97)

28 . 6 . 97              EN                   Official Journal of the European Communities                              No C 199/29
Action brought on 16 April 1997 by Paul Keyaerts against                      Members of the Court of Auditors, to decide at the
         the Commission of the European Communities                           same time on an appropriate increase in the rate of the
                          ( Case T-l 14/97)                                   applicant's pension, as provided for by Article 18
                                                                              of Council Regulation ( EEC, Euratom, ECSC)
                             ( 97/C 199/75                                    No 2290/77 .
                  (Language of the case: French)
                                                                         — order the defendant to pay the costs.
An action against the Commission of the European
Communities was brought before the Court of First                        Pleas in law and main arguments adduced in support:
Instance of the European Communities on 16 April 1997
by Paul Keyaerts, residing at Overijse ( Belgium ),
represented by Nicolas Lhoest, of the Brussels Bar, with an              The applicant, a former Member of the Court of Auditors
address for service in Luxembourg at the offices of Fidu­                who ceased to hold office in February 1994, states that he
ciaire Myson Sari , 30 Rue de Cessange.                                  first became entitled to payment of his pension on 1 March
                                                                         1997. On 27 February he received the calculation of the
The applicant claims that the Court should:                              net amount of his pension, from which he noted that,
                                                                         pursuant to Article 2 of Regulation ( EEC, Euratom,
— annul the Commission's decision of 17 June 1996                        ECSC ) No 840/95 of 10 April 1995 amending Regulation
                                                                         ( EEC, Euratom, ECSC ) No 2290/77, his pension had not
     rejecting the applicant's request that it give
     consideration to the possible application of Article 31             been increased following the increase in the salaries
                                                                         granted by Article 1 of that Regulation to the President
     ( 2 ) of the Staff Regulations,                                     and    the  Members     of the   Court   of Auditors .  That
                                                                         individual decision constitutes        the   measure    being
— annul, in so far as may be necessary, the decision                     challenged in this case .
     adopted by the Commission on 27 December 1996
     expressly rejecting the applicant's complaint,
                                                                         The applicant pleads first that Article 2 of Regulation
— order the defendant to pay all the costs.                              ( EEC, Euratom, ECSC ) No 840/95 is unlawful : it provides
                                                                         expressly that an increase in pensions acquired will not
Pleas in law and main arguments adduced in support:                      take place even though Article 1 of that same regulation
                                                                         lays down the amounts of the Increase in the basic salaries
The pleas in law and main arguments are the same as in                   and monthly transitional allowances of the President and
                                                                         Members of the Court of Auditors . He considers that that
Case T-l 6/97 (').
                                                                         provision is incompatible with Article 18 of Regulation
(') OJ No C 74 , 8 . 3 . 1997, p . 27.
                                                                         ( EEC, Euratom, ECSC ) No 2290/77, according to which,
                                                                         should the Council decide to increase the basic salary, it
                                                                         shall at the same time decide on an appropriate increase in
                                                                         the rates of existing pensions . He points out, secondly,
                                                                         that the provision in question constitutes an amendment
                                                                         that is lacking any valid grounds on the basis of the
                                                                         previous settled practice of the Council .
Action brought on 16 April 1997 by Richie Ryan against
                       the Court of Auditors
                           ( Case T-121 /97 )                            In the alternative, he claims that Regulation ( EEC,
                                                                         Euratom, ECSC ) No 840/95 does not apply to his case,
                              ( 97/C 199/76 )                            inasmuch as it refers to acquired pensions, that is to say to
                                                                         pensions that have been settled when it entered into force.
                  (Language of the case: French)                         The applicant's pension had not been settled, in the sense
                                                                         that it had not been paid, prior to the date on which the
An action against the Court of Auditors was brought                      Regulation entered into force — 1 May 1995 — and was
before the Court of First Instance of the European                       only settled at a much later date .
Communities on 16 April 1997 by Richie Ryan, resident
in Dublin ( Ireland ), represented by Georges Vandersanden,
of the Brussels Bar, with an address for service in                      The applicant also points out that, on the basis of
Luxembourg at the Offices of Fiduciaire Myson Sari, 30                   Article 18 of Regulation ( EEC, Euratom, ECSC ) No 2290/
Rue de Cessange .                                                         77 which was applicable when he took up his duties as a
                                                                         Member of the Court of Auditors, he was legitimately
The applicant claims that the Court should:                              entitled to expect that the amount of his pension would be
                                                                          increased appropriately, when the basic salary was
                                                                          increased, by a decision of the Council taken at the same
— annul the decision settling the applicant's pension                    time . He accordingly considers that in not complying with
     rights as first brought to his attention on 27 February
                                                                         that provision the Council has disregarded the principle of
      1997 with effect from 1 March 1997, inasmuch as
                                                                          the protection of legitimate expectations .
     that decision, pursuant to Article 2 of Council
      Regulation ( EEC, Euratom, ECSC ) No 840/95 ,
      disregards the Council's obligation, if it decides to               Lastly, he pleads that the principle of non-discrimination
      increase the basic salaries of the President and the                has been infringed, pointing out that the system
 ---pagebreak--- No C 199/30            EN                 Official Journal of the European Communities                                    28 . 6 . 97
introduced by Article 2 of Regulation ( EEC, Euratom,                Pleas in law and main arguments adduced in support:
ECSC ) No 840/95 creates an unjustifiable and unfair
difference    in   treatment    as  between   Presidents   and
Members of the Court of Auditors who are not yet in                  In 1994 the Italian Government notified the Commission
receipt of a pension and those who are, and also as
                                                                     of Law No 481 of 3 August 1994 and Decree No 683
between the pensioners themselves, according to the date
                                                                     of the Ministro dell'Industria , del Commercio e
taken into account for the purpose of determining when a
                                                                     dell'Artigianato ( Ministry of Industry, Commerce and
pension is acquired.
                                                                     Crafts ) of 12 October 1994, both of which were intended
                                                                     to facilitate the implementation of a plan for the
                                                                     restructuring of the Italian steel industry through aid for
                                                                     the closure of production units and for the re-training of
                                                                     personnel for work in economic sectors other than steel .
                                                                     By decision of 12 December 1994 the Commission
                                                                     approved those measures .
Action brought on 18 April 1997 by Ferriera Lamifer
S.p.A. against the Commission of the European
                           Communities
                        ( Case T-122/97 )
                                                                     By the first contested decision, adopted on the basis of the
                                                                     Steel Aid Code (') and the above decision of 12 December
                          ( 97/C 199/77 )                            1994, the Commission declared that the aid planned in
                                                                     favour of, inter alia, the applicant undertaking, was
                                                                     incompatible with the common market, on the assumption
                 (Language of the case: Italian)                     that aid for closures is to be granted solely to
                                                                     undertakings regularly manufacturing products for the
                                                                     steel market within the meaning of Article 4 ( 2 ) of the
 An action against the Commission of the European                    Code .
 Communities was brought before the Court of First
 Instance of the European Communities on 18 April 1997
 by Ferriera Lamifer S.p.A. , represented by Camine Punzi
 and Filippo Satta, of the Rome Bar, with an address for             The applicant, a company which possesses a hot-rolling
 service in Luxembourg at the Chambers of Charles Turk,              mill for the production of reinforcing rods for cement,
 13B Avenue Guillaume .                                              points out first of all that Article 4 ( 2 ) of the Code
                                                                      recognizes aid as compatible with the common market on
                                                                     condition that the undertakings in question, inter alia,
 The applicant claims that the Court should annul and                 ' have been regularly producing ECSC iron and steel
 amend :                                                              products up to the date of notification of the aid'. On that
                                                                      point, the applicant argues that the criterion for verifying
                                                                      the regularity of production, as further defined by the
 — Commission Decision No 4288 of 18 December 1996 ,                  Commission in its decision of 12 December 1994 , is
      notified to the applicant by post on 1 1 March 1997             invalid .
      by the Direzione Generale Produzione Industriale del
      Ministero dell'Industria della Repubblica Italiana
      ( General Industrial Production Directorate of the              In the first place, it is unreasonable to take 1993 — the
      Italian Ministry of Industry ), finding 'the State aid          year immediately preceding the adoption of national
      measures envisaged by Italy as part of the                      measures to encourage the closure of steel plants — as the
      restructuring of its private steel industry', in favour         sole reference period . Since the Code did not specify an
      inter alia of Ferriera Lamifer, incompatible with the           initial date for the reference period for calculating
      common market within the meaning of Article 4 ( c ) of          regularity of production, it seems totally at odds with the
      the ECSC Treaty and refusing to authorize the                    Code itself to restrict it so drastically. Secondly, it is
    , granting of such aid,                                           arbitrary and unfounded to take the MPP ( maximum
                                                                      possible production of an undertaking whose production
                                                                      timetable is based on the 24-hour day ) as a comparator
 — Commission Decision No 17924 of 12 December
                                                                       against which to measure actual production over the
      1994 in so far as, in identifying the criteria laid down         reference period. On that point the applicant points out
      by the second indent of Article 4 ( 2 ) of Commission            that the Code merely mentions ' regularity' of production,
      Decision No 3855/91 /ECSC of 27 November 1991
                                                                       by which it obviously means production according to the
      establishing Community rules for aid to the steel                undertaking's past /practice, and certainly not by reference
      industry ('the Aid Code'), it provides that ' regular            to a factor such as the MPP which is inappropriate for
      production' is to be interpreted as the manufacture of           that purpose .
      steel products 'for the year 1 993 ... on average for at
      least one shift per day — that is, at least eight hours
      per day — five days per week ',
                                                                       Lastly, the applicant maintains that the statement of
                                                                       reasons is defective, in so far as the contested decision did
  — all other measures entailed by, connected with or                  not take into account its particular circumstances .
       howsoever consequential to, the above measures .                Specifically, the fixing of a single comparator for both