CELEX: C1997/142/44
Language: en
Date: 1997-05-10 00:00:00
Title: Action brought on 3 March 1997 by Georges Martins against the Commission of the European Communities (Case T-45/97)

No C 142/20           EN                Official Journal of the European Communities                                  10 . 5 . 97
Servatius van Thiel, residing in Nyon ( Switzerland), Ettore       retroactively from 1 July 1994, 1 January 1995 and 1 July
Zamproni, residing in Bellevue ( Switzerland ), Leo Geboers        1995 , thus severely curtailing the applicants' remuneration
and David Hollister, residing in New York, and Monique             ( by about 15% ). Article 13 of Annex X to the Staff
Weygandt, residing in Larchmont ( USA), represented by             Regulations requires that, where the variation in the cost
Jean-Noel Louis, Thierry Demaseure and Ariane Tornel,              of living is found to exceed 5 % since the last adjustment
of the Brussels Bar, with an address for service in                for a given country, interim measures be adopted to adjust
Luxembourg at the office of Fiduciaire Myson Sari, 30              the weighting. In this case no such measures were
Rue de Cessange.                                                   adopted.
The applicants claim that the Court of First Instance              The applicants also refer to the fact that in this case the
should :
                                                                   Council received in due time proposals from the
                                                                   Commission for the adjustment of remuneration with
— annul the applicants' salary statements for May 1996,            effect from 1 July 1994, 1 January 1995 and 1 July 1995
    in that they apply for the first time Council                  for officials assigned to non-member countries but, for
    Regulations (Euratom, ECSC, EC ) No 577/96,                    what are in their view political reasons, the Council did
     ( Euratom, ECSC, EC ) No 578/96 and ( Euratom,                not adopt the contested regulations until 25 March 1996 .
    ECSC, EC ) No 579/96 of 25 March 1996 laying down              According to the applicants, that delay shows that the aim
    the weightings applicable to the remuneration of               pursued by those regulations certainly did not make it
    officials of the European Communities serving in third         necessary for them to take effect prior to their publication.
    countries as from 1 July 1994, 1 January 1995 and              In any event, the applicants state that they were not
     1 July 1995 respectively,                                     aware, and had no opportunity to learn, of the alleged
                                                                   irregularity of the remuneration paid before the date of
                                                                   publication of the regulations in question .
— annul the applicants' salary statements for June 1996,
     in that they incorporate deductions by way of recovery
     of salary overpaid, pursuant to the abovementioned            Lastly, the applicants claim that the fact that they were
     regulations,                                                  deprived of their right to consider whether or not it was
                                                                   appropriate to ask the appointing authority to arrange for
— order the defendant to pay the costs.                            all or part of their remuneration to be paid at their places
                                                                   of employment, subject to the weightings laid down for
                                                                   such places and after conversion at the corresponding rate
Pleas in law and main arguments adduced in support:                of exchange, constituted an infringement of Article 12 of
                                                                   Annex X to the Staff Regulations.
The applicants, who are officials employed outside the
territory of the Community, object to the procedures for           (') OJ No L 83 , 2 . 4 . 1996 , pp . 1 , 4 and 7 .
calculation of the weightings applicable, as from specified
dates, to their remuneration; they also object to the
deductions made to recover amounts allegedly overpaid .
On 25 March 1996, the Council adopted Regulations
( Euratom, ECSC , EC ) No 577/96 , ( Euratom, ECSC, EC )
No 578/96 and ( Euratom, ECSC, EC ) No 579196 laying               Action brought on 3 March 1997 by Georges Martins
down the weightings applicable to the remuneration of                 against the Commission of the European Communities
officials of the European Communities serving in third                                        ( Case T-45/97 )
countries as from 1 July 1994, 1 January 1995 and 1 July
 1995 respectively. (')                                                                         97/C 142/44 )
In support of their action, the applicants allege first                            (Language of the case: French)
breach of the principles of legal certainty, acquired rights
and non-retroactivity of provisions of regulations, and
breach of the obligation to state the reasons on which a           An action against the Commission of the European
measure is based. They state that the institution employing         Communities was brought before the Court of First
them drew up, under the regulations in force at the                Instance of the European Communities on 3 March 1997
material time, salary statements for the period of six              by Georges Martins, residing in Brussels, represented by
months prior to the adoption of the three contested                Nicolas Lhoest, of the Brussels Bar, with an address for
regulations and that consequently those statements                  service in Luxembourg at the offices of Fiduciaire Myson
constitute 'legal acts' which conferred subjective rights           Sari, 30 Rue de Cessange .
which ought to be protected. The principle is consistently
expressed in legal literature and in the case-law, they say,
that a legal act which has created such rights cannot be           The applicant claims that the Court should:
withdrawn .
                                                                   — annul the decision adopted by the Commission on
They also consider that it was unlawful for the Council to              22 November 1996 expressly rejecting the applicant's
 decide to make the contested regulations take effect                   complaint,
 ---pagebreak---  10 . 5 . 97             EN I               Official Journal of the European Communities                                No C 142/21
— annul, in so far as may be necessary, the decision                   SIC's complaints concern essentially two major separate
      adopted by the Commission implicitly rejecting the               matters arising from the relationship between the
      applicant's request,                                             Portuguese State and RTP. First, the matter of granting the
                                                                       concession for the public television service to RTP and, in
                                                                       particular, the question of compensation which the State
— order the defendant to pay all the costs.
                                                                       makes annually to RTP under that concession . In that
                                                                       regard, SIC calls in question, in the first place, that certain
 Pleas in law and main arguments adduced in support:                   amounts paid by way of compensation should be
                                                                       described as remuneration for a public service; it disputes,
The pleas in law and main arguments are the same as in                 secondly, the criteria on which the calculation of said
 Case T- 16/97 ( M.                                                    compensation is based, and the amounts; and, thirdly, on
                                                                       the basis of the foregoing, it disputes the amounts of the
                                                                       compensation which the Portuguese State paid to RTP in
 (') OJ No C 74, 8 . 3 . 1997, p . 27.                                 the period from 1992 to 1996 . Secondly, SIC's complaints
                                                                       also concern other ways in which the Portuguese State has
                                                                       been financing RTP in recent years directly and indirectly,
                                                                       in particular the exemption from certain charges, the
                                                                       agreement with Portugal Telecom, the system of payment
                                                                       of certain contributions to social insurance, capital
Action brought on 3 March 1997 by SIC — Sociedade In­                  contributions and debenture loans .
dependente de Comunica?ao SA — against Commission of
                   the European Communities                            In support of its application, the applicant alleges:
                           ( Case T-46/97 )
                             ( 97/C 142/45                             — breach of the principle of the right of interested parties
                                                                           to be heard beforehand, inasmuch as they were
               (Language of the case: Portuguese)                          adopted without the applicant having been given the
                                                                           opportunity to comment on their content or on the
                                                                           main procedural documents, in particular the detailed
An action against the Commission of the European                           study commissioned by the Commission on the matter
Communities was brought before the Court of First                          and the observations and documents submitted by the
Instance of the European Communities on 3 March 1997                       Portuguese State,
by SIC — Sociedade Independente de Comunica^ao, SA,
whose registered office is at 119 Estrada da Outurela,
Carnaxide, Linda-a-Velha, representend by Carlos Botelho               — breach of the obligation to provide a statement of
Moniz and Ana Santos Reis, Advogados, with chambers at                     reasons, under Article 190 of the EC Treaty and the
63 6 ? Rua Castilho, Lisbon, with an address for service in                procedural rules relating to the preliminary stage of
Luxembourg at the chambers of Aloyse May, 31 Grand­                        assessment of complaints lodged pursuant to and for
Rue .                                                                      the purposes of Article 93 ( 2 ) of the EC Treaty,
The applicant claims that the Court should:                            — breach of Article 92 ( 1 ) of the EC Treaty, inasmuch as
                                                                           it considered to be compatible with that provision
                                                                           certain measures adopted by the Portuguese State
— annul the decision of the Commission of the European                     contrary thereto,
      Communities of 7 November 1996 SG(96 ) D/9555,
      under the heading 'State Aid NN 141 /95 — Financing
      of public television channels', notified to the applicant        — lack of a statement of reasons for the contested
      by letter No 54333 of 20 December 1996,                              decisions as a result of the failure to carry out a
                                                                           detailed and impartial inquiry into the case.
— annul the decision of the Commission of the European
      Communities, with the heading 'Plainte de SIC contre             As regards specifically the compensatory payments, it
      RTP', notified to the applicant by a letter from the             should be borne in mind, according to the applicant, that
      Commission No 54365 of 20 December 1996,
                                                                      — the Commission does not make clear the definition of
— order the defendant to pay the costs in their entirety.                  'public service' which it adopted,
Pleas in law and main arguments adduced in support:                   — the Commission does not analyze the criteria
                                                                           employed to determine the compensation paid by the
                                                                           Portuguese State to RTP in return for provision of the
The applicant, the same party as the applicant in Case
                                                                           public service,
T-231 /95 SIC v. Commission ( ] ), contests two decisions
concerning a set of measures adopted by the Government
in favour of RTP, a public operator holding the concession            — the Commission, in particular, has not replied to the
for public service television which, in that capacity,                     arguments expressly put forward by SIC in so far as
operates Portuguese television channels 1 and 2 .                          they concern failure to consider actual cost,