CELEX: C1997/252/78
Language: en
Date: 1997-08-16 00:00:00
Title: Action brought on 20 June 1997 by BP Chemicals Limited against the Commission of the European Communities (Case T-184/97)

No C 252/36           EN                   Official Journal of the European Communities                                   16 . 8 . 97
Regulations of officials, the household grant received by             Instance of the European Communities on 20 June 1997
their husbands from the family allowances to which they               by BP Chemicals Limited, represented by James Flynn,
were entitled. In July 1996 they were informed that, in               with an address for service in Luxembourg at the
consequence of the judgment delivered by the Court of                 Chambers of Loesch & Wolter, 1 1 Rue Goethe.
First Instance on 11 June 1996 in Case T-147/95 Pavan v.
Parliament, and having considered the conditions
governing the award of the grant in question, the
                                                                      The applicant claims that the Court should:
administration had concluded that the grant could no
longer be regarded as an allowance of like nature to the
household allowance provided for in Article 1 of
Annex VII to the Staff Regulations and that it had                    — annul the Commission Decision No 941/96 of 28 April
therefore been decided that it would no longer deduct that                 1997 approving State aid; granted by France,
grant from the household allowance paid to the
applicants . The applicants thereupon requested retroactive
reimbursement of all of the sums deducted together with               — order the Commission to pay the costs .
default interest. Those requests were rejected by the
defendant on the ground that the applicants had not
challenged the acts adversely affecting them — namely, in
the present case, the remuneration statements in which the            Pleas in law and main arguments adduced in support:
contested    deductions      had  been   made — within      the
prescribed period.
                                                                      By the present application, the applicant seeks annulment
The applicants state, first, that they are seeking                    of the decision approving a French aid scheme, which
compensation for loss arising from fault on the part of the           consists essentially of a tax exemption for producers of
administration and not annulment of an act adversely                  certain biofuels designed to encourage them to purchase
affecting them, so that their claim falls within Article 179          certain inputs of agricultural origin ( the 1997 Scheme ).
of the EC Treaty and Articles 90 and 91 of the Staff
Regulations. They therefore consider that the procedure
followed by them is in accordance with the Staff
Regulations and with case-law and that their action is                The applicant concentrates in this application on the
admissible .                                                          contested decision as it affects ethyl tertiary butyl ether
                                                                      ( ETBE ) production and the ethanol market. It is submitted
As regards the substance of the case, the applicants                  in this regard that the contested decision should be
maintain that the administration is bound, under                      annulled on three principal grounds:
Article 67 ( 2 ) of the Staff Regulations and Articles 1 , 2
and 3 of Annex VII thereto, to undertake an examination
of the allowances declared by its officials, with a view to           First, the Commission has exceeded its margin of
establishing the nature thereof in the light of the rule              discretion in three respects . It has authorized an aid
against overlapping benefits, and that it does not enjoy              without requiring any financial limit or restrictions on
any discretion when carrying out that examination. The                volumes of production or the life of the 1997 Scheme. It
fact that it wrongly characterized the household grant                has failed to make any assessment of the impact of the
paid to Luxembourg bank employees as being of like                    Scheme on the ethanol market and has therefore failed to
nature to the household allowance paid to officials                   satisfy itself that trading conditions will not be adversely
therefore constitutes, in the applicants' view, a service­            affected to an extent contrary to the common interest as
related fault. They infer from this that the administration           Article 92 ( 3 ) (c ) requires. The environmental benefits
is bound to reimburse the sums wrongly deducted as from               claimed for the Scheme are nugatory at best and could be
the date of adoption of the first decision, inasmuch as,              secured by far less expensive and less discriminatory
where a service-related fault, loss and a causal link are             measures .
established, Articles 179 and 215 of the EC Treaty and the
relevant case-law require the loss caused to be made good
in its entirety.
                                                                      Second, the Commission has misapplied Council Directive
                                                                      92/81/EEC concerning excise duty for mineral oils ( OJ No
                                                                      L 316, 31 . 10. 1992, p. 12 ). The only basis on which the
                                                                      1997 Scheme could qualify for a derogation from the
                                                                      requirement to levy excise duty which that Directive
Action brought on 20 June 1997 by BP Chemicals Limited                imposes is by a unanimous Council decision under
   against the Commission of the European Communities                 Article 8 ( 4 ) thereof. The suggestion that the 1997 Scheme
                                                                      can benefit for the derogation for pilot plants under
                        ( Case T-184/97)                              Article 8 (2 ) ( d ) thereof is wrong in law and in
                          ( 97IC 252/78 )                             contradiction with the position taken by the Commission
                                                                      in December 1996, when it declared the 1997 Scheme's
                 (Language of the case: English)                      predecessor measures illegal and incompatible with the
                                                                      common market and expressly stated that they could not
An action against the Commission of the European                      benefit from the 'pilot plant' derogation. Nothing has
Communities was brought before the Court of First                     changed to permit such a volte-face.
 ---pagebreak--- 16 . 8 . 97            EN                   Official Journal of the European Communities                                 No C 252/37
Finally, the 1997 Scheme is biased entirely in favour of the           subsequent extension of his contract, given the guidelines
incumbent French producers and their suppliers, who have               that the Commission was proposing to adopt concerning
already benefited substantially by the measures declared               temporary staff ( undertakings of 23 February and
illegal and incompatible in December 1996 ( but still in               16 March 1994 ). This action was brought following the
force today). In the result, France is levying discriminatory          refusal of the applicant's request that the Commission
taxation on imported production and the 1997 Scheme                    should apply to him its former policy, contained in its
accordingly cannot be given an exemption under                         decision of 18 March 1992, authorizing the extension of
Article 92 ( 3 ) (c ).                                                 temporary servants' contracts up to a maximum duration
                                                                       of five years .
In all these respects, the Commission has also failed to
comply with the duty to adduce sufficient reasons in its               The applicant makes the following pleas in law in support
decisions laid down in Article 190 of the Treaty.                      of his action :
                                                                       — disregard, in so far as he was concerned, of the duty
                                                                            to pay due regard to the welfare of officials,
Action brought on 23 June 1997 by Philippe Godts
    against the Commission of the European Communities                 — disregard of the principles of the protection of
                                                                            legitimate expectations and of non-retrospectivity, and
                         ( Case T-l 85/97)                                  the unenforceability against him of the Commission's
                           ( 97/C 252/79 )                                  decision of 16 March 1994 . Under that decision, new
                                                                            contracts are to be concluded, on an interim basis and
                                                                            pending a definitive decision on the reorientation of
                  (Language of the case: French)
                                                                            the whole of the Commission's policy on temporary
                                                                            servants, for a duration of three years with no
An action against the Commission of the European                            guarantee of extension or of the opportunity to
 Communities was brought before the Court of First                          participate in an internal competition. In so far as that
 Instance of the European Communities on 23 June 1997                       decision reduces the rights of temporary servants
 by Philippe Godts, residing in Brussels, represented by                    acknowledged by the Commission in its previous
 Nicolas Lhoest, of the Brussels Bar, with an address for                   selection notices published in 1993 , the applicant
 service in Luxembourg at the offices of Fiduciaire Myson                   maintains that it cannot be enforced against him,
 Sari, 30 Rue de Cessange.
 The applicant claims that the Court should:                            — disregard of the principle of equality of treatment, in
                                                                            that in this case temporary servants recruited before
                                                                             16 March 1994, unlike those recruited afterwards,
 — annul the Commission's decision of 1 August 1996,                         continue   to  benefit   without   restriction from  the
      expressly rejecting his request that he be allowed to                  principles contained in the Commission's decision of
      benefit from possible extension of his contract, up to a               18 March 1992 . It cannot reasonably be claimed that
      total of five years,                                                   the objective position of temporary servants recruited
                                                                             before and after that date is identical . Most of them
 — declare       the   Commission       decision    adopted    on            submitted their candidacy following the same pre­
      13 November 1996 unlawful in so far as it limits all                   selection notices, which referred to the possibility of
      temporary staff contracts falling under Article 2 ( a ) of             an extension of their contracts up to a duration of five
      the Conditions of Employment of Other Servants to a                    years ,
      maximum duration of three years, with a possibility of
      extension for a maximum of one year,
                                                                        — infringement of Articles 27 and 29 of the Staff
                                                                             Regulations inasmuch as, with its new policy, the
 — order the Commission to pay the costs.                                    Commission     restricted   the   recruitment   base  for
                                                                             competitions to become established officials in a way
 Pleas in law and main arguments adduced in support:                         contrary to the interests of the service,
 The applicant entered the Commission's service in                      — illegality of the Commission's decision of 13 November
  October 1994, as a member of the temporary staff. Both                      1996 limiting the duration of temporary contracts to
  the selection notice, which appeared in the administrative                 three years, with a possible maximum extension of
  information sheet of 10 September 1993 and in the press,                    one year. The applicant considers that, by adopting
  and the information communicated to him concerning the                     that decision, the Commission renounced a right
  status of members of the temporary staff and details of the                 conferred upon it by Article 8 of the Conditions
  method of recruiting them expressly stipulated that the                     of Employment of Other Servants to conclude
  duration of contractrs, limited to three years, could be                    employment contracts for an indefinite period.
  extended up to a total of five years . However, by letters of
  23 and 30 September 1994, the Commission told the
  applicant that no guarantee could be given as to the