CELEX: C1995/159/28
Language: en
Date: 1995-06-24 00:00:00
Title: Appeal brought on 24 March 1995 by D against the judgment delivered on 26 January 1995 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-549/93 between D and the Commission of the European Communities (Case C-89/95 P)

No C 159/14           | EN                    Official Journal of the European Communities                                   24 . 6 . 95
Appeal by the Cassa Nazionale di Previdenza ed Assistenza a              aware of the factual situation affecting the appellant and
favore degli Avvocati e Procuratori against the Order of the             other Italian provident organizations, adopted a provision
Court of First Instance of the European Communities of                   intended specifically, given its effect, to exclude the
11 January 1995 in Case T-116/94 , Cassa Nazionale di                    appellant and similar Italian provident organizations from
Previdenza ed Assistenza a favore degli Avvocati e                       the benefit of the prohibition contained in Article 104a ( 1 )
  Procuratori against the Council of the European Union                  of the EC Treaty, contrary to the purpose of that provision.
                         ( Case C-87/95 P)                               Whilst it may be true in the abstract that the inadequacy of
                                                                         the alternative remedies available before the national courts
                            ( 95/C 159/27 )                              cannot give rise to an action for annulment under
                                                                         Article 173 of the EC Treaty, the fact that in this case an
An appeal was brought before the Court of Justice of the                 effective action before the courts is lacking, given the
European Communities on 20 March 1995 by the Cassa                       slowness of proceedings — especially civil proceedings — in
Nazionale di Previdenza ed Assistenza a favore degli                     Italy, gives rise to serious doubts as to the adequacy of the
Avvocati e Procuratori , with its registered office in Rome,             procedure for judicial review of the acts of Community
represented by Pietro Adonnino, Mario Sanino, Maurizio de                institutions and thus as to the effectiveness of the rights of
Stefano and Alberto Colabianchi, with an address for                     the defence .
service in Luxembourg at the Chambers of Marianne
Goebel, 1 Rue François Faber, against the order of the Court
                                                                         (M OJ No L 332 , 31 . 12 . 1993 , p . 4 .
of First Instance of the European Communities of
11 January 1 995 in Case T- 1 1 6/94 between the appellant
and the Council of the European Union.
The appellant claims that the Court should :
( a ) annul the order of the Court of First Instance of
      11 January 1994 in Case T- 1 1 6/94, in so far as it
      declared inadmissible the appellant's alternative claim            Appeal brought on 24 March 1995 by D against the
      for the annulment of the last indent of Article 4 ( 2 ) of         judgment delivered on 26 January 1995 by the Fourth
      Council Regulation ( EC ) No 3604/93 of 13 December                Chamber of the Court of First Instance of the European
                                                                         Communities in Case T-549/93 between D and the
      1993 specifying definitions for the application of the
      prohibition of privileged access referred to in                             Commission of the European Communities
      Article 1 04a of the Treaty ( 1 ) in so far as it provides that                           ( Case C-89/95 P)
      institutions forming part of the 'general government                                         ( 95/C 159/28 )
      sector ' defined in accordance with the ESA are excluded
      from the definition of ' financial institutions';
                                                                         An appeal against the judgment delivered on 26 January
( b ) if the state of the pleadings permits, grant the relief            1995 by the Fourth Chamber of the Court of First Instance
      sought by the appellant at first instance in its alternative       of the European Communities in Case T-549/93 between D
      claim    for the annulment         of the     last indent of       and the Commission of the European Communities was
      Article 4 ( 2 ) of the Regulation, in so far as it provides        brought before the Court of Justice of the European
      that institutions forming part of the 'general                     Communities on 24 March 1995 by D , represented by Eric
      government sector' defined in accordance with the ESA              Boigelot, with an address for service in Luxembourg at the
      are   excluded      from    the   definition     of  ' financial   Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim .
      institutions '; or
      refer the matter to the Court of First Instance for the            The appellant claims that the Court should :
      examination and determination of the merits;
                                                                         — annul the contested judgment ( l ) in its entirety,
(c ) order the Council to pay the costs of the proceedings
      and of the proceedings before the Court of First
      Instance .                                                         — itself rule on the dispute and, allowing the appellant's
                                                                             original application, annul the respondent's decision
                                                                             imposing on him the disciplinary measure referred to in
Pleas in law and main arguments adduced in support:                          Article 86 ( 2 ) ( f) of the Staff Regulations, namely,
                                                                             removal from post without withdrawal of entitlement to
The appellant maintains that its alternative claim against the               retirement pension, adopted on 30 September 1993 with
Council for the annulment of the last indent of Article 4 ( 2 )              effect from 1 December 1993 and prohibiting the
of Regulation ( EC ) No 3604/93 , in so far as it provides that              appellant from performing his duties until 30 November
institutions forming part of the 'general government sector'                 1993 , and, in so far as may be necessary, annul the
defined in accordance with the ESA are excluded from                         express decision rejecting the complaint against the said
the definition of ' financial institutions ' satisfies the                   disciplinary measure lodged by the appellant pursuant to
requirements for admissibility laid down by Article 173 of                   Article 90 ( 2 ) of the Staff Regulations on 23 February
the EC Treaty. The appellant argues essentially that, when                   1994 and notified on 24 February 1994, and,
adopting the contested Regulation, the Council, being                        consequently, rule that the respondent should reinstate
 ---pagebreak--- 24 . 6 . 95            EN                   Official Journal of the European Communities                                 No C 159/ 15
    the appellant in all his duties , grade, step and salary with      Compte , represented by Eric Boigelot, with an address for
    retroactive effect to the date on which the contested              service in Luxembourg at the Chambers of Louis Schiltz, 2
    decision took effect, in accordance with the decision              Rue du Fort Rheinsheim .
    which the Court adopts, and further order the
    respondent to pay to the appellant all his arrears of              The appellant claims that the Court should :
    salary, including the benefit which he receives and are
    due to him from 1 December 1993 until the date of the              1 , declare the appeal admissible and well-founded;
    decision to be adopted , together with interest at the
    annual rate of 8 % from the date on which each                     2 , consequently:
    instalment of salary fell due, and order the respondent in
                                                                            ( a ) annul the contested judgment, save in so far as it
    any event to pay the costs of the two actions ,
                                                                                  acknowledges that the appellant has suffered
                                                                                  non-material damage for which the respondent is
— order the Commission of the European Communities to                             ordered to pay him compensation in the sum of Bfrs
    pay the entire costs of the two actions .                                     200 000;
Pleas in law and main arguments adduced in support:                         ( b ) adjudicate itself on the dispute and , upholding the
                                                                                  appellant's original claims :
Infringement of Community law, in particular :                                    — first, in Case T-90/91 , annul the decision of
                                                                                      18 April 1991 by which the appointing
— infringement of Article 33 of the Statute of the Court of                          authority retroactively revoked its decision of
    Justice of the EEC, applicable to the Court of First                             24 January 1991 recognizing the occupational
    Instance of the European Communities by virtue of                                nature of the appellant's disease and decided
    Article 46 of the said Statute, which was inserted therein                       that a different decision should be taken in place
    by Article 7 of the Council Decision of 24 October 1988                          of the said decision of 24 January 1991 in the
    establishing a Court of First Instance of the European                           light of the judgment delivered in Case T-26/89
    Communities; the obligation to state the reasons on                              between the appellant and the European
    which judgments are based requires those reasons, in                             Parliament,     and    annul   the   decision   of
    particular, to be legally admissible , that is to say,                           23 September 1991 rejecting the appellant's
    relevant, free from errors of law or fact and                                    complaint lodged on 4 June 1991 , and
    consistent,                                                                      consequently order the respondent to pay to
                                                                                     him the sum of Bfrs 9 147 091 together with
— breach of the general legal principles applying under                              default interest at the annual rate of 10 % from
    Community law, namely, in particular, the principles of                          24 January 1991 ,
    proportionality, of the right to a fair hearing and of
    impartiality, and also of the general legal principle that                    — second, in Case T-62/92, annul the decision of
    all administrative acts must be based on reasons which                           20 January 1992 by which the appointing
    are legally admissible, that is to say, relevant and free                        authority decided that the appellant was not
    from errors of fact and/or law; this means, in particular,                       suffering from an occupational disease within
    that full proof of the facts relied on must be                                   the meaning of the Rules on the Insurance of
    furnished .                                                                      Officials of the European Communities against
                                                                                     the risk of Accident and of Occupational
                                                                                     Disease, together with the decision of 4 June
(M OJ No C 54 , 4 . 3 . 1995 , p . lé .
                                                                                      1992 rejecting the appellant's complaint lodged
                                                                                     on 8 April 1992 and notified on 10 April 1992,
                                                                                     and consequenly order the respondent to pay to
                                                                                     him the sum of Bfrs 9 147 091 together with
                                                                                     default interest at the annual rate of 10 % with
                                                                                     effect, at all events and subject to all necessary
                                                                                     express reservations, from 24 January 1991 ;
Appeal brought on 24 March 1995 by Henri de Compte
against the judgment delivered on 26 January 1995 by the               3 , order the European Parliament to pay the entire costs of
First Chamber of the Court of First Instance of the European               the two actions .
Communities in Joined Cases T-90/91 and T-62/92
 between Henri de Compte and the European Parliament
                                                                       Pleas in law and main arguments adduced in support:
                        ( Case C-90/95 P)
                           ( 95/C 159/29 )                             Infringement of Community law, in particular :
                                                                       — infringement of Article 33 of the Statute of the Court of
An appeal against the judgment delivered on 26 January                     Justice of the EEC, applicable to the Court of First
1995 by the First Chamber of the Court of First Instance of                Instance of the European Communities by virtue of
the European Communities in Joined Cases T-90/91 and                       Article 46 of the said Statute, which was inserted therein
T-62/92 between Henri de Compte and the European                           by Article 7 of the Council Decision of 24 October 1988
Parliament was brought before the Court of Justice of the                  establishing a Court of First Instance of the European
European Communities on 24 March 1995 by Henri de                          Communities; the obligation to state the reasons on