CELEX: C1996/233/18
Language: en
Date: 1996-08-10 00:00:00
Title: Action brought on 10 May 1996 by Filippo de Jorio against the Council of the European Union (Case T-64/96)

10 . 8 . 96            EN                   Official Journal of the European Communities                               No C 233/9
 Action brought on 10 May 1996 by Augusto Fichtner                      — infringement and erroneous application of Articles 43 et
   against the Commission of the European Communities                       seq. of the Staff Regulations ,
                          ( Case T-63 /96 )
                                                                        — breach of an essential procedural requirement,
                            ( 96/C 233/ 17 )
                                                                        — misuse of powes inasmuch as the facts were distorted,
                 (Language of the case: Italian)                            and
                                                                        — misuse of powers inasmuch as the statement of reasons is
 An action against the Commission of the European                           defective, illogical and contradictory.
 Communities was brought before the Court of First
 Instance of the European Communities on 10 May 1996 by
 Augusto Fichtner, an official at the Joint Research Centre at
 Ispra , residing at Varese, represented by Vincenzo Salvatore ,
 of the Pavia Bar, with an address for service in Varese at 6
 Via Orrigoni .
                                                                        Action brought on 10 May 1996 by Filippo de Jorio against
 The applicant claims that the Court should :                                       the Council of the European Union
                                                                                                ( Case T-64/96 )
 — annul the decision of the Commission of 12 February                                            ( 96/C 233/ 18 )
     1996 rejecting the applicant's complaint No 67/95
     against his immediate superior's assessments in his staff
     report for the period 1991 to 1993 ,                                              (Language of the case: Italian)
 — order the Commission to compensate the applicant for                 An action against the Council of the European Union was
     the material and non-material damage suffered by him               brought before the Court of First Instance of the European
     as a result of the conduct complained of in such an                Communities on 1 0 May 1 996 by Filippo de Jorio, member
     amount as the Court may deem fair,                                 of the Economic and Social Committee of the European
                                                                        Union, represented and defenced by Lucio Filippo Longo,
                                                                        Avvocato and Procuratore in Rome, with an address for
— order the unsuccessful party to pay the costs .
                                                                        service in Luxembourg at the Chambers of Ernest Arendt,
                                                                        8-10 Rue Mathias Hardt .
 Pleas in law and main arguments adduced in support:
                                                                       Pleas in law and main arguments adduced in support:
The applicant, an official in Grade B 4, who has been
working at the Joint Research Centre at Ispra since 2 May              The applicant, who is a member of the Economic and Social
 1967, points out that he has always carried out the duties             Committee ( ESC ), points out that Article 194 of the EC
relating to his post with professionalism and competence, as           Treaty provides that 'the members of the ( Economic and
amply demonstrated by the favourable assessments made in               Social ) Committee may not be bound by any mandatory
his staff reports until 1989 by the then Director . He states          instructions; they shall be completely independent in the
that the appointment of the successor to that Director was             performance of their duties, in the general interest of the
followed immediately by manifestly discriminatory                      Community ' and that ' the Council , acting by a qualified
attitudes and conduct detrimental to the applicant, resulting          majority , shall determine the allowances of members of the
in his gradual marginalization by means of allocating to him           Committee '. The applicant therefore maintains that, by not
wholly inappropriate duties with regard to his grade and the           determining the allowances in that manner, as provided by
professional qualifications he had in the meantime acquired .          the EC Treaty, the Council has infringed a clear provision of
Moreover, the applicant's numerous operational and                     Article 194 , as cited above, because members of the ESC
organizational proposals, which were regularly submitted               currently have no duty or service allowance ( by contrast
to his immediate superior, were essentially disregarded . His          with all other Community appointments ) and receive only a
staff report became gradually and unjustifiably worse to the           flat-rate reimbursement of expenses, which is totally
point that the report relating to the period 1 July 1991 to            inappropriate to the nature of the duties with which they are
30 June 1993 , which represents possibly the strongest                 entrusted and insufficient, moreover, to cover the expenses
expression, at least in documentary form, of the ostracism             actually incurred on each visit to Brussels .
referred to above, is particularly characterized by a number
of untrue statements and assessments which seriously harm              The applicant submits that when , in its provisions
the prestige and dignity of the official concerned , without           concerning the ESC, the Treaty lays down that ESC
their being in the least supported by any evidence but                 members may not be bound by any mandatory instructions,
characterized in particular by bald affirmations and a failure         its intention is indisputedly to affirm the principle that
to state reasons .
                                                                       members of the ESC exercise judgment independently and
                                                                       autonomously . Since, in order to carry out their task ,
On the basis of the foregoing the applicant claims that the            members of the ESC have a duty to act in accordance with
report relating to the period 1991 to 1993 is unlawful on the          their own convictions , which may lead them to maintain
following grounds:                                                     positions at variance with those adopted by the
 ---pagebreak--- No C 233/ 10          EN                 Official Journal of the European Communities                                     10 . 8 . 96
organizations to which they belong, their task necessarily          The applicant submits that this decision was adopted in
entails an appropriate financial arrangement . Thus the fact        breach of the essential procedural requirements set out in
that members of the ESC continue to go without such an              Article 25 of the Staff Regulations . It infringes general rules
arrangement is incompatible with the nature of the task             of law relating to the application of the Treaty establishing
assigned to them by the Treaty, since it inherently                 the European Community, namely the principles of equal
presupposes that all members of the ESC are paid for those          treatment, the protection of legitimate expectations and the
services by organizations in their respective countries and         prohibition of retroactive withdrawal of a legal measure
that they are therefore in practice obliged , in the                which confers individual rights . The decision was also
performance of their ESC duties, to act in the interests and at     adopted without taking the applicant's rights and legitimate
the behest of those organizations .                                 interests into account .
The applicant also alleges : ( a ) breach of the principle of
equal treatment as between the various European
appointments; ( b ) breach of the principle that allowances
should compensate time devoted to the performance of
duties and the quality and quantity of work undertaken , and
not merely ( and, above all, not partially ) actual expenses        Action brought on 15 May 1996 by Sonja Edith Berlingieri
incurred .
                                                                    Vinzek against the Commission of the European
                                                                                              Communities
                                                                                           ( Case T-71 /96 )
                                                                                             ( 96/C 233/20 )
Action brought on 13 May 1996 by John Mellett against the
      Court of Justice of the European Communities                                  (Language of the case: French)
                        Case T-66/96 )
                        ( 96/C 233/ 19 )                            An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                (Language of tbe case: Englisb)                     Instance of the European Communities on 15 May 1 996 by
                                                                    Sonja Edith Berlingieri Vinzek, residing at Sterrebeek
An action against the Commission of the European                    ( Belgium ), represented by Jean-Noël Louis , Thierry
Communities was brought before the Court of First                   Demaseure and Ariane Tornel , all of the Brussels Bar, with
Instance of the European Communities on 13 May 1996 by              an address for service in Luxembourg at the offices of
John Mellett, represented by Brendan O'Donovan, with an             Fiduciaire Myson , Sari, 1 Rue Glesener .
address for service in Luxembourg at 61 , rue des
Maraîchers, Plateau du Kirchberg.                                   The applicant claims that the Court should :
The applicant claims that the Court should :                        — annul the decision of the selection board in competition
                                                                        COM/A/955 of 28 March 1996 not to admit her to the
— annul the decision of the Administrative Committee of
    the Court of Justice of the European Communities of                 oral test in the competition,
    14 June 1995 not to commence the procedure leading to
    the establishment of Mr Mellett as a permanent official ,       — annul , in so far as necessary, the decision of the selection
    and                                                                 board in competition COM/A/955 of 16 February 1996
                                                                        not to admit her to the oral test in the competition,
— order the       defendant to     bear the   costs  of these
    proceedings .                                                   — order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
The applicant, who , as personal driver of one of its
Members, is a member of the temporary staff of the Court of         The applicant states that she obtained her veterinary degree
Justice challenges the refusal to commence a procedure              at the University of Pisa ( Italy ) in 1974 and that, since
leading to his appointment as permanent official .                  September 1974, she has been working as an independent
                                                                    consultant in various areas, and especially in the technical
The applicant states that according to a well-established           and administrative areas and in the area of veterinary
practice of the defendant institution, drivers are first            legislation . On 4 October 1995 , the Commission published
recruited as temporary officials attached to the Chambers of        the notice of open competition COM/A/955 with a view to
a Member . After three years' service, the Member would             the recruitment of principal administrators ( A4/A5 ) of
propose that a procedure leading to the establishment of the        Austrian nationality . The applicant lodged her candidature
driver as a permanent official be set in motion . An internal       within the prescribed time-limit . By letter of 16 February
competition would then be organized by the Court's                  1996 , she was informed that she had not been admitted to
administration, which would invariably lead to the driver           the oral test in the competition . Following a request by the
being established . The contested decision has departed from        applicant that the decision be re-examined, the selection
this practice .                                                     board confirmed its decision by letter of 26 March 1996 .