CELEX: C1999/174/25
Language: en
Date: 1999-06-19 00:00:00
Title: Case T-87/99: Action brought on 13 April 1999 by Michel Hendrickx against CEDEFOP

C 174/12              EN                      Official Journal of the European Communities                                     19.6.1999
Pleas in law and main arguments                                          The applicant claims that the Court should:
The applicants claim to be affected by some provisions of the            — annul the Commission’s decision of 5 January 1999
United Kingdom VAT Act 1994, which were adopted on the                        rejecting his complaint under Article 90(2) of the Staff
basis of an enabling power under Article 4(4) of Council                      Regulations against the Commission’s refusal of authoris-
Directive 77/388/EEC, as amended (the Sixth VAT Directive),                   ation to publish a detailed transcript of the lecture which
which provides inter alia that ‘each Member State may treat as                he had been authorised to give in Cordoba on 30 October
a single taxable person persons established in the territory of               1997 on the subject of ‘The need for economic fine-tuning
the country who, while legally independent, are closely bound                 at the local and regional level in the Monetary Union of
to one another by financial, economic and organisational                      the European Union’;
links’. No Member State may, however, rely on this power
unconditionally because Article 4(4) states clearly that its use         — declare his claim for authorisation to publish the transcript
is ‘subject to the consultations provided for in Article 29’.                 of his lecture admissible and well-founded;
Article 29 of the Sixth VAT Directive establishes the ‘Advisory
Committee on VAT’.
                                                                         — order the Commission to pay the costs.
The applicants are of the view that if the United Kingdom did
not consult the Committee as required or, if no direct evidence
in the form of a probative contemporaneous report of                     Pleas in law and main arguments
consultation can be adduced, then the abovementioned pro-
visions of United Kingdom law are invalid on the ground of
breach of an essential procedural requirement and cannot be              The applicant states that he personally participated in a
applied as against the applicant.                                        seminar, at which he gave a lecture, having requested and
                                                                         obtained the authorisation of his superiors at the Commission
The applicants did ask the United Kingdom authorities for                on the strength of a résurmé and an outline of the main points
details of the consultations, but the request was declined on            he was going to raise in his presentation. Subsequently, the
the grounds that the relevant details were not in the public             organisers of the seminar asked him to supply a detailed text
domain. The applicants consequently lodged an application                of his lecture for an inclusion in a publication they intended
with the defendant. The defendant did not reply to the                   to issue. The applicant’s application under Article 17(2) of the
application for access within one month of the application               Staff Regulations for leave to publish the text in question was
being made or within one month to the application for review.            refused by the Commission on the grounds that, first, it risked
                                                                         compromising the interests of the institution by reducing its
The applicants submit that, by failing to reply within one               room for manoeuvre, and, secondly, there were significant
month of the application for review, the defendant was deemed            differences between the résumé of the lecture (which had been
to have refused the application by virtue of Article 2(4) of the         the basis of the authorisation to deliver it) and the text in
Access Decision. That refusal is unlawful per se and also                question.
because it is not accompanied by a statement of reasons and
therefore infringes Article 190 EC, which is a mandatory                 The applicant challenges that statement of reasons, arguing
provision. The time-limit of one month for each of the                   that, in denying him the right to publish his article, the
abovementioned applications imposes a necessary discipline,              Commission committed an obvious error of assessment and a
designed to protect the rights of persons such as the applicants         misuse of powers, and infringed the principle of the protection
who seek access to documents against prevarication, by                   of legitimate expectations and duty to have due regard for the
requiring the Commission to do everything necessary —                    welfare of officials.
including the conduct of internal consultations and the
obtaining of all necessary consents — within the time-limit,
and must be regarded as mandatory and binding in all respects.
Action brought on 12 April 1999 by Michael Cwik against                  Action brought on 13 April 1999 by Michel Hendrickx
       the Commission of the European Communities                                                against CEDEFOP
                         (Case T-82/99)
                                                                                                   (Case T-87/99)
                        (1999/C 174/24)
                                                                                                  (1999/C 174/25)
                   (Language of the case: French)
An action against the Commission of the European Communi-                                    (Language of the case: French)
ties was brought before the Court of First Instance of the
European Communities on 12 April 1999 by Michael Cwik,
residing at Tervuren (Belgium), represented by Nicholas Lhöest,          An action against the European Centre for the Development
of the Brussels Bar, with an address for service in Luxembourg           of Vocational Training (CEDEFOP) was brought before the
at the offices of Fiduciaire Myson SARL, 30 Rue de Cessange.             Court of First Instance of the European Communities on
 ---pagebreak--- 19.6.1999              EN                    Official Journal of the European Communities                                      C 174/13
13 April 1999 by Michel Hendrickx, residing at Ambelokipon,             Action brought on 15 April 1999 by Salzgitter AG against
Greece, represented by Jean-Noël Louis, Françoise Parmentier                   the Commission of the European Communities
and Véronique Peere, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Fiduciaire Myson SARL,
30 Rue de Cessange, L-1320 Luxembourg.                                                            (Case T-90/99)
The applicant claims that the Court should:
                                                                                                 (1999/C 174/26)
— annul CEDEFOP’s decision of 3 June 1998 rejecting the
     applicant’s application for the post of ‘Head of General
     Support Services (Administration)’;
                                                                                          (Language of the case: German)
— annul CEDEFOP’s decision not to give consideration to his
     application for the post of ‘Head of Administration’;
                                                                        An action against the Commission of the European Communi-
— annul the decision not to extend his contract as a member             ties was brought before the Court of First Instance of the
     of the temporary staff beyond 30 June 1998;                        European Communities on 15 April 1999 by Salzgitter AG,
                                                                        of Salzgitter, Germany, represented by Jochim Sedemund,
— order the defendant to pay the costs.                                 Rechtsanwalt, of Deringer Tessin Herrmann & Sedemund, with
                                                                        an address for service in Luxembourg at the Chambers of
                                                                        Aloyse May, 31 Grand Rue.
Pleas in law and main arguments
                                                                        The applicant claims that the Court should:
The applicant, a Council official, was seconded to CEDEFOP in
order to occupy a post as a member of its temporary staff. By
note of 12 December 1997, the applicant applied to the                  1. annul the Commission decision of 3 March 1999 (reference
Director of CEDEFOP for renewal of his contract until at least              SG (99) D/1542, procedure C 10/99/ex NN 55/98-
30 June 1998.                                                               Germany);
On 2 April 1998 CEDEFOP published an internal notice of                 2. order the Commission to pay the costs.
vacancy concerning the post of ‘Head of General Support
Services (Administration)’. On the same date, it also published
an internal notice of vacancy with regard to the post of ‘Head
of Administration’. The applicant applied for each of the               Pleas in law and main arguments
vacant posts.
                                                                        In the contested decision the Commission initiated a procedure
By note of 3 June 1998, the Director of CEDEFOP informed                for examining aid under Article 6(5) of the ‘Sixth Steel Aid
the applicant that he had decided to regard the applicant as            Code’ (1).
unsuitable for the post of ‘Head of General Support Services’
within the administration, and not to take into consideration
his internal application for the post of ‘Head of Adminis-              In the applicant’s view, the Commission concludes in its
tration’, or to extend his contract beyond 30 June 1998.                reasoning that tax write-offs and the possibility of creating
                                                                        reserves under the German Zonenrandförderungsgesetz (Law
The applicant maintains that the vacancy notices are illegal,           on the Promotion of Zone Boundary Areas) (2), taken advantage
inasmuch as they do not state the precise level of the post to          of by various companies in the applicant’s group, were
be filled or the nature of the tasks to be performed and                subsidies which constituted impermissible State aid. The
the qualifications required. According to the applicant, the            Commission therefore, in the applicant’s view, decides that
rejection of his applications for the posts in question is vitiated     proof has been provided of the grant of impermissible and
by a manifest error of assessment, inasmuch as that rejection           incompatible aid by the authorities to Salzgitter/Preussag Stahl
is based not on the decision of the Selection Committee but             and to the subsidiary companies in the ECSC sector of the
solely on the dissenting minority view of its President.                group.
Moreover, the decision not to give consideration to the
applicant’s application for the post of ‘Head of Administration’
is vitiated not only by a manifest error of assessment but also         The applicant complains of incorrect interpretation of
by misuse of powers and an abuse of procedure. Those                    Articles 4(c) and 67(1) of the ECSC Treaty: The purpose of the
decisions were adopted in flagrant breach of the principles of          Zonenrandförderungsgesetz was partial economic compen-
equal treatment and of non-discrimination.                              sation for the massive locational disadvantages resulting from
                                                                        the former situation along the border with the GDR and the
The applicant claims that the decision not to renew his                 CSSR. The law applied without exception to all Community
contract as a temporary agent beyond 30 June 1998 is a direct           undertakings with plants in that region. The factor of specific
consequence of those two decisions, the illegality of which,            preferential treatment of an undertaking, essential for the
according to him, renders unlawful the subsequent decision              definition of aid, is therefore lacking. Those provisions merely
not to renew his contract as a temporary agent.                         allowed the undertakings concerned a temporary post-
                                                                        ponement of the date of taxation, and never, as the Com-
                                                                        mission wrongly asserts, led to a transfer of State resources.
                                                                        Even the basic conditions for aid are thus absent.