CELEX: C1995/208/68
Language: en
Date: 1995-08-12 00:00:00
Title: Action brought on 24 May 1995 by Daniel Chabert against the Commission of the European Communities (Case T-122/95)

No C 208/32           EN                   Official Journal of the European Communities                                    12 . 8 . 95
been successful; shortly afterwards he learned that an                The applicant claims that the Court should :
external candidate had been appointed to that post. He
therefore lodged a complaint against the decision rejecting           — annul Regulation ( EC ) No 816/92, inasmuch as it does
his candidature, which formed the subject of a decision                   not provide for any award of compensation in respect of
expressly rejecting it.                                                   the suspended proportion of the reference quantity, and ,
                                                                          in addition, award the applicant damages ,
The applicant alleges, first, infringement of Article 25 of the
Staff Regulations of officials of the European Communities,           — order the defendants to pay the costs .
claiming that the decision rejecting his candidature
contained no statement of reasons . Alternatively, he claims          Pleas in law and main arguments adduced in support:
that the reasoning set out in the decision rejecting his              In the present proceedings, the applicant is applying for the
complaint is incorrect, since of the two candidates the one           annulment of Regulation ( EC ) No 816/92, inasmuch as that
selected was not the one who possessed the qualifications             Regulation provides for the reduction of reference
and abilities necessary for performing the duties of that             quantities, without compensation, in the interests of the
post.                                                                 European milk market; he also claims damages pursuant to
                                                                      Article 178 and the second paragraph of Article 215 of the
Furthermore, the applicant points out that he was the only            EC Treaty for the loss suffered by him as a result of the
internal candidate for the post concerned and that the                application of the aforesaid Regulation .
appointing authority should , consequently, have
interviewed him to ascertain, in the light of his                     By virtue of the 24th Order amending the Milch­
qualifications, knowledge , abilities and experience, whether         Garantiemengen-Verordnung ( Milk Guarantee Quantities
he met the conditions required to fill the post. Since such an        Order ), which transposes Regulation ( EC ) No 816/92 into
interview never took place, he considers that his candidature         German law, a partial quantity, constituting 4,74 % of the
was not validly assessed under Article 29 ( 1 ) of the Staff          previous reference quantity, was 'suspended ' with effect
Regulations and that that procedure was not correctly                 from 1 April 1 992 . By contrast with the situation previously
followed with regard to him .                                         prevailing, compensation is now no longer paid . That
                                                                      legislation has the effect of an expropriation measure and is
The applicant also considers that the decision taken by the           incompatible with the basic right to property .
appointing authority not to fill the post at issue using any of
the procedures in Article 29 ( 1 ) of the Staff Regulations, but      Although the Milch-Garantiemengen-Verordnung, which
to follow the exceptional procedure laid down in                      completes Regulation ( EC ) No 816/92, makes provision for
Article 29 (2 ) of the Staff Regulations instead , infringed the      the suspension of quantities, and thus for their withdrawal,
latter provision and also Article 45 of the Staff                     it contains no rules regarding compensation . The same
Regulations .                                                         applies as regards the contested Regulation ( EC ) No 816/92 .
                                                                      Consequently, those provisions infringe Article 14 ( 3 ) of the
Lastly, the applicant claims that even before declaring the           Grundgesetz ( German Basic Law); thus they also
post vacant, the Commission had decided to appoint a                  contravene, by virtue of the foregoing, the right to property
certain person to it. The defendant had therefore committed           enshrined in the legal order of the European Communities,
an abuse of procedure and a misuse of powers; on the same             which is safeguarded in accordance with the constitutional
account it had failed to comply with Articles 7 and 27 of the         conceptions common to the Member States .
Staff Regulations, in so far as those provisions establish the
principle of the prohibition of discrimination in the general         The reduction of the reference quantity without any
rules of the Community civil service and in particular in the         corresponding indemnification or compensation is illegal,
rules governing recruitment procedure .                               since it contravenes the right to property and the principle of
                                                                      the protection of legitimate expectations, and is therefore
                                                                      null and void . Because the applicant has been unable, since
                                                                      the definitive suspension on 29 June 1992 of 4,74 % of his
                                                                      previous reference quantity, to supply 11 612 kg of milk
                                                                      included within that quantity, despite having purchased
Action brought on 12 May 1995 by Alfred Hauer against                 reference quantities of that volume for supply at the then
the Council of the European Union and the Commission of               price of DM 1,60/kg, he has suffered a corresponding loss
                  the European Communities                            for which he should be compensated .
                        ( Case T-119/95 )
                          ( 95/C 208/67 )
               (Language of the case: German)
                                                                      Action brought on 24 May 1995 by Daniel Chabert against
                                                                            the Commission of the European Communities
An action against the Council of the European Union and
the Commission of the European Communities was brought                                       ( Case T-122/95 )
 before the Court of First Instance of the European                                             95/C 208/68 )
 Communities on 12 May 19 95 by Alfred Hauer, of
Niederweiler ( Federal Republic of Germany), represented                              (Language of the case: French)
 by Matthias H. Francois, Rechtsanwalt, Bitburg, with an
 address for service in Luxembourg at the Chambers of                 An action against the Commission of the European
 Annie k Wurth .                                                       Communities was brought before the Court of First
 ---pagebreak--- 12 . 8 . 95           EN                  Official Journal of the European Communities                              No C 208/33
Instance of the European Communities on 24 May 1995 by               systematic deduction of sums from his salary by way of
Daniel Chabert, residing at Kraainem ( Belgium ),                    repayment of the sum unduly paid .
represented by Georges Vandersanden, of the Brussels Bar,
with an address for service in Luxembourg at the offices of
Fiduciaire Myson Sari, 1 Rue Glesener.
The applicant claims that the Court should :
                                                                     Action brought on 1 June 1995 by Karl Fingerhut against
— annul the decision of the Commission of 6 October 1994             the Council of the European Union and the Commission of
    ordering the applicant to repay, in monthly instalments,                          the European Communities
    the sum of Bfrs 215 354 in respect of sums unduly                                      ( Case T-124/95 )
    paid ,                                                                                    ( 95/C 208/69 )
— order the repayment of the sums compulsorily deducted                            (Language of the case: German)
    by the Commission from the applicant's salary since
    November 1994 , together with default interest at the
    annual rate of 8 % ,                                             An action against the Council of the European Union and
                                                                     the Commission of the European Communities was brought
— order the defendant to pay all of the costs .                      before the Court of First Instance of the European
                                                                     Communities on 1 June 1995 by Karl Fingerhut,
                                                                     Twistetal-Gembeck ( Federal Republic of Germany ),
Pleas in law and main arguments adduced in support:                  represented by Bernd Meisterernst, Mechtild Düsing,
                                                                     Dietrich Manstetten, Frank Schulze and Winfried
The applicant states that, following his divorce, which was          Haneklaus , Rechtsanwälte, Münster, with an address for
pronounced on 1 February 1984 , he requested the                     service in Luxembourg at the Chambers of Dupong &
administration to pay to his former wife the sum which               Associés, 14a Rue des Bains .
would have been due to her if she had been the person
entitled to receive the household allowance, namely 5 % of
her basic salary, with the balance being paid into the               The applicant claims that the Court should :
applicant's account; the administration carried out that
request, without objection, from 1 March 1 984 . For ten and         1 . order the defendants jointly to pay to the applicant
a half years, from March 1984 to October 1994, the                       SLOM III compensation for the period from
applicant was thus paid a sum, appearing on his salary slip              15 December 1985 to 29 July 1993 in the amount of
as the household allowance , which was deemed to represent               DM 43 929,06 , together with interest thereon at 8 %
the difference between the household allowance paid to his               from 19 May 1992 , and jointly to pay the costs of the
                                                                         proceedings;
former wife, corresponding to 5 % of her salary, and the
balance due to the applicant. It subsequently transpired that
the Commission did not, during that period , adjust that part        2 . join the present action to that already pending in Case
                                                                         T-77/93 Hülseberg and Others v. Council and
of the allowance which was payable to the applicant's
former wife in line with the alterations in her salary; thus             Commission and also stay the proceedings .
although the allowance was increased in line with the salary
increases of the applicant's former wife, it was paid to her on      Pleas in law and main arguments adduced in support:
an unchanging basis only, and the applicant consequently
received a residual sum which grew progressively. The                The pleas in law and arguments are identical to those in Case
                                                                     T-20/95 .
payment was thus indeed irregular, but that irregularity was
entirely due to the defendant and the applicant was not
aware of it .
The applicant bases his case on a single plea , namely,
infringement of Article 85 of the Staff Regulations . The
defendant maintains that it is appropriate in the present case       Action brought on 5 June 1995 by Hassan Belhanbel against
for the undue payment to be recovered , because the                        the Commission of the European Communities
irregularity of the payment was 'patent'. The applicant                                    ( Case T-125/95 )
denies that contention, maintaining that, even if he had                                     ( 95/C 208/70 )
become aware of an increase in the sum paid to him in
respect of the allowance — which he did not — he would
have been legitimately entitled to assume that the amount of                        (Language of the case: French)
that allowance had been increased by an amount greater
than the increase in his former wife's salary, since he was not      An action against the Commission of the European
aware of the extent to which that salary had risen; the error        Communities was brought before the Court of First
on the part of the administration was not, therefore,                Instance on 5 June 1995 by Hassan Belhanbel, of Namur,
patently such that the applicant could not have been                 Belgium,    represented      by Jean-Noel Louis, Thierry
unaware of it. Consequently, the applicant considers that            Demaseure and Ariane Tornel, of the Brussels Bar, with an
the defendant has misapplied Article 85 of the Staff                 adress for service in Luxembourg at the office of Fiduciaire
Regulations and that it has acted unlawfully in ordering the         Myson Sari, 1 Rue Glesener.