CELEX: C1999/174/23
Language: en
Date: 1999-06-19 00:00:00
Title: Case T-78/99: Action brought on 1 April 1999 by Sonia Marion Elder and Robert Dale Elder against the Commission of the European Communities

19.6.1999             EN                      Official Journal of the European Communities                                         C 174/11
Finally, the applicant pleads infringement of fundamental                The applicant was subsequently refused registration of his
Community rights, alternatively of rights equivalent thereto, in         vehicle. He learned thereafter that the chassis number of his
the form of a disproportionate impairment, contrary to the               vehicle had been blocked by the customs service by reason of
principle of the protection of legitimate expectations, of the           the fact that the Commission had not supplied the Belgian
commercial enterprise set up and operated by the applicant,              Customs and Excise Administration with relevant and necess-
viewed as a property right. According to the applicant, there            ary information that had been requested a number of times.
has been an infringement of the guaranteed right to have
access to legal remedies (see Article 19(4) of the German Basic          The applicant maintains that the Commission is liable to him
Law), which is enshrined in the German constitution but which            for the following failures in its administrative system:
also falls to be observed in the context of Community law.
                                                                         — The Commission did not ensure that the applicant’s
                                                                              individual file contained all the important and relevant
(1) OJ L 208 of 24.7.1992, p. 1.                                              documents which it should have contained in order to
                                                                              enable it to give the Belgian authorities correct and
                                                                              complete information;
                                                                         — the Commission did not correctly defend the applicant’s
                                                                              interests before the Belgian authorities, in that they insisted
                                                                              on 1 November 1992 as the date on which he assumed
                                                                              his duties, whereas his individual file contained two
                                                                              documents showing that it was 5 January 1993;
Action brought on 2 April 1999 by Girish Ojha against
       the Commission of the European Communities                        — the Commission did not appear to know the terms of the
                                                                              agreements concluded with the Belgian Ministry of Finance
                                                                              and did not make the effort to become acquainted with
                         (Case T-77/99)                                       them.
                        (1999/C 174/22)                                  The material damage comprises the cost of hiring a vehicle
                                                                         identical to the applicant’s, at the rate of BFR 2 200 per day
                                                                         for the period from 1 February 1996 until 31 December 1997.
                                                                         The applicant considers that the non-material damage may
                   (Language of the case: French)                        fairly be assessed at BFR 300 000, since he suffered significant
                                                                         non-material damage through the errors and omissions of the
An action against the Commission of the European Communi-                Commission’s staff.
ties was brought before the Court of First Instance of the
European Communities on 2 April 1999 by Girish Ojha,
residing at Bierbeek (Belgium), represented by Antonietta
Ottati and Marc Dallemagne, both of the Brussels Bar.
The applicant claims that the Court should:                              Action brought on 1 April 1999 by Sonia Marion Elder
                                                                         and Robert Dale Elder against the Commission of the
                                                                                              European Communities
— annul the express decision of the Commission rejecting
    the applicant’s complaint under Article 90(2) of the Staff                                     (Case T-78/99)
    Regulations;
                                                                                                  (1999/C 174/23)
— order the Commission to pay the applicant damages of
    BFR 1 552 339 for material damage and BFR 300 000 for
    non-material damage;                                                                    (Language of the case: English)
— order the Commission to pay the costs.                                 An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 1 April 1999 by Sonia Marion
                                                                         Elder and Robert Dale Elder, represented by Scott Crosby of
Pleas in law and main arguments
                                                                         Kemmier Rapp Böhlke & Crosby, 9, Rond-Point, Brussels.
The applicant was posted to the Commission delegation in                 The applicant claims that the Court should.
Dacca (Bangladesh) until 31 December 1992. He imported a
Mercedes motor car, purchased free of VAT on 17 December                 (i) annul the refusal of the Commission to grant the appli-
1991, to Bangladesh from Belgium. On 5 January 1993, he                       cation for review of 6 January 1999 addressed to the
resumed his duties with the Commission in Brussels.                           Secretary General of the Commission constituted by its
                                                                              failure to reply in any form by the last hour of 8 February
                                                                              1999, or in the alternative by its failure to define its
According to the applicant, the relevant department of the                    position before the last hour of 13 or 14 February 1999;
Commission stated on tax forms on 23 December 1992 and
15 January 1993 that the applicant satisfied the conditions for          (ii) order the defendant to pay the applicants’ costs pursuant
customs exemption, erroneously indicating 1 November 1992                     to Article 87 of the Rules of Procedure of the Court of First
as the date on which he assumed his duties.                                   Instance.
 ---pagebreak--- 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