CELEX: C1997/212/58
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 23 April 1997 by Carmen Gómez de Enterria against the European Parliament (Case T-131/97)

12 . 7 . 97            EN                   Official Journal of the European Communities                                No C 212/29
The applicant claims that the Court should :                                from the date on which she was retired until her
                                                                            reinstatement, together with interest at the legal rate
— annul the decision of the Parliament not to promote                       of 8 % per annum,
     the applicant to Grade LA 4 for the promotions year
     1996 ,                                                            — annul, if necessary, the letter of 9 October 1996 from
                                                                            Klaus Hansch, President of the European Parliament,
— order the Parliament to pay the costs.                                    informing the applicant of the Bureau's decision,
                                                                            referred to above,
Pleas in law and main arguments adduced in support:
                                                                       — order the European Parliament to pay the costs in
The applicant, an official in Grade LA 5 , challenges the                   their entirety.
European Parliament's decision not to promote him to
                                                                       Pleas in law and main arguments adduced in support:
Grade LA 4 for the promotions year 1996 . He maintains
that the Parliament has offered no explanation in                      The applicant states that the Court of First Instance
justification of its refusal to promote him, even though the           annulled a decision taken by the Parliament in 1994,
consultative committee on promotions had been                          retiring her from her post ( 1 ). Following that judgment,
recommending him since the promotions year 1995 . In his               the Parliament adopted a new decision by which it
submission , the contested decision is therefore vitiated by           'confirms' its 1994 decision retiring the applicant from her
a total failure to state reasons .
                                                                       post and rejects her candidature for the posts of Director­
                                                                       General in DG I and of Special Adviser at the Epicentre in
The applicant further submits that the Parliament either               Brussels .
failed to carry out a comparative examination of the
merits of the applicant and other officials eligible for               The applicant maintains, first, that the Parliament did not
promotion to Grade LA 4, or carried out such an                        give effect to all the legal consequences entailed in the
examination without taking account of his staff reports                judgment of the Court of First Instance since, by virtue of
and without seeking information on his merits allowing                 being annulled, the unlawful decision adopted in 1994 is
their ' notional absence' to be compensated for. By                    retrospectively deemed never to have existed . Thus the
adopting the contested decision, the Parliament therefore              applicant should have been restored to the same legal
infringed Article 45 of the Staff Regulations, committed a             position as the one she had at the time when the annulled
manifest error of assessment and infringed the principle of            decision was adopted, and the Parliament was not entitled
equality of treatment between officials eligible for                   to use that decision as the basis for the decision contested
promotion.                                                             in the present case. Thus the Parliament has acted in
                                                                       contravention of Article 176 of the EC Treaty and the
                                                                       general principle of res judicata.
                                                                       Article 25 , second paragraph, and Article 50 of the Staff
                                                                       Regulations have also been infringed, in that the contested
 Action brought on 23 April 1997 by Carmen Gomez de                    decision does not enable the grounds for the applicant's
            Enterria against the European Parliament                   retirement from her post to be ascertained with certainty
                         ( Case T-131 /97 )                            and precision, nor does it establish that such a step was in
                                                                       the interests of the service, which would have enabled
                           ( 97/C 212/58
                                                                        Article 50 of the Staff Regulations to be properly invoked .
                 (Language of the case: French)                        The applicant also emphasizes that the manner of the
                                                                        decision's adoption gave her no opportunity to defend her
 An action against the European Parliament was brought                  interests effectively, since the appointing authority ( in this
 before the Court of First Instance of the European                     case, the Bureau of the Parliament) disregarded the
 Communities on 23 April 1997 by Carmen Gomez de                        observations which she had submitted concerning the issue
 Enterria, residing in Luxembourg, represented by Eric                  in question, which amounts to a breach of her right to a
 Boigelot, of the Brussels Bar, with an address for service in          fair hearing.
 Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
 Fort Rheinsheim .                                                      Furthermore, the contested decision is vitiated, in that it is
                                                                        ultra vires and involves a misuse of powers, in so far as it
 The applicant claims that the Court should:                            was adopted on grounds other than the interests of the
                                                                        service stipulated by Article 50 of the Staff Regulations
 — annul the decision taken by the Bureau of the                        and in circumstances such that there is no legally
      European Parliament at its meeting of 15 and 16 July              acceptable justification for it . The applicant concludes that
      1996 ( Ref.: PE 251.357/BUR) in its capacity as                   the Parliament used its powers for purposes other than
      appointing authority,                                             those for which they were conferred .
 — as a consequence of the forthcoming judgment, rule                   Lastly, the applicant argues that the Parliament did not
      that, in accordance with Article 176 of the Treaty of             fulfil its obligation to take decisions affecting the personal
      Rome, the appointing authority must reinstate the                 circumstances of officials within a reasonable length of
      applicant with full rights, ensuring in particular that           time . The decision adopted by the Bureau at its meeting
      she is restored to the post from which she was retired,           on 15 and 16 July 1996 was not communicated to her
      at the same grade, and paid the salary arrears due                until 9 October 1996 , after she had addressed requests to
 ---pagebreak--- No C 212/30             I EN 1                 Official Journal of the European Communities                                        12. 7. 97
the administration. As a result, despite its particularly                 Pleas in law and main arguments adduced in support:
insecure nature, she was left in ignorance of her situation
for nearly three months . In the applicant's view, such                   The pleas in law and main arguments are similar to those
conduct on the part of the Parliament is unacceptable and                 relied on in Case T-140/97.
caused her not only material damage, but also non­
material damage .
(') Judgment of 14 May 1996 in Case T-82/95 ( OJ No C 180,
    22 . 6 . 1996 , p. 28 ).
                                                                          Action brought on 7 May 1997 by Natural Van Dam AG
                                                                          and Danser Container Line BV against the Commission of
                                                                                                  the European Communities
                                                                                                        ( Case T-155/97)
Action brought on 29 April 1997 by Bernard Yasse                                                          ( 97/C 212/60 )
              against the European Investment Bank
                             ( Case T-141/97)
                                                                                                (Language of the case: Dutch)
                               ( 97/C 212/59 )
                                                                          An action against the Commission of the European
                    (Language of the case: French)                        Communities was brought before the Court of First
                                                                          Instance of the European Communities on 7 May 1997 by
 An action against the European Investment Bank was                       Natural Van Dam AG, a company incorporated under
 brought before the Court of First Instance of the European               Swiss law, and Danser Container Line BV, represented by
 Communities on 29 April 1997 by Bernard Yasse, residing                  J. Van Dam, of the Rotterdam Bar, with an address for
 at Fauvillers ( Belgium), represented by Pascale Delvaux de              service in Luxembourg at the Chambers of F. Entringer,
 Fenffe and Pierre-Paul Van Gehuchten, of the Brussels Bar,                34a Rue Philippe II .
 with an address for service at Schouweiler ( Luxembourg )
 at the Chambers of Michel Hautem, 90 Route de Longwy.
                                                                          The applicants claim that the Court should:
 The applicant claims that the Court should :
                                                                          — annul the decision of the European Commission
 — annul the decision taken on 31 January 1997 by the                             of 7 March 1997 ( SG(97) D/1862 ), whereby
      European Investment Bank ( EIB ),                                           it was decided not to grant the applicants the
                                                                                  exemption applied for under Article 8 ( 3 ) ( c ) of
 — as a consequence, order the applicant to be reinstated                         Council Regulation ( EEC ) No 1101 /89 (*), and,
      in his duties,                                                              notwithstanding that decision, grant the exemption
                                                                                  sought,
 — order the EIB to pay the applicant:
                                                                           — order the defendant to pay the costs .
      — upon his reinstatement, the sum of Bfrs 2 666 466
            — a provisional amount subject to increase in the              Pleas in law and main arguments adduced in support:
            course of the proceedings — representing salary
            arrears, together with Bfrs 1 000 000 by way of
            compensation for material and non-material                     The applicants operate a container line service on the
            damage,                                                        Rhine . They are contemplating the construction of three
                                                                           specialized vessels intended for the transportation of
      — should his reinstatement prove impossible :                        certain hazardous materials, in respect of which they
                                                                           have sought from the Commission exemption from
            — the sum of Bfrs 1 390 150 by way of ordinary                 the prohibition contained in Article 8 ( 1 ) of the
                compensatory settlement for lawful dismissal,              aforementioned Regulation .
            — the sum of Bfrs 35 986 625 subject to increase
                or adjustment in the course of the proceedings,            In their view, the rejection of their application is contrary
            — the sum of Bfrs 2 500 000 by way of                          to the objective of the regulation, which is not aimed at
                compensation for the loss of preferential rates            curbing the influx of new cargo capacity into the inland
                of interest on building loans,                             waterway system. The applicants further complain that
                                                                           the Commission 's assessment of the facts is incorrect and
             — Bfrs 1 000 000 by way of compensation for the                deficient and that its statement of reasons for its decision
                injury to his professional reputation,                      is defective .
  — order the EIB to pay the sum of Bfrs 300 000 to the                     ( 1 ) Council Regulation (EEC ) No 1101 /89 of 27 April 1989 on
       applicant in his capacity as legal guardian of the                         structural improvements in inland waterway transport ( OJ No
       person and property of his child who is a minor,                           L 116 , 28 . 4 . 1989, p. 25 ).
  — order the EIB to bear all costs .