CELEX: C1996/247/42
Language: en
Date: 1996-08-24 00:00:00
Title: Action brought on 28 June 1996 by Gencor Ltd against the Commission of the European Communities (Case T-102/96)

24 . 8 . 96            EN                  Official Journal of the European Communities                                No C 247/19
The applicant claims that the Court should :                          Instance of the European Communities on 28 June 1996 by
                                                                      Gencor Ltd, represented by K. P. E. Lasok QC and D. F.
— annul the Commission decision of 24 May 1995 to                     Hall, of Linklaters & Paines, Solicitors, London, with an
     review the applicant's classification in so far as it sets       address for service in Luxembourg at the Chambers of
     that classification at grade A 7, step 2 , at 1 June 1991        Maitre Marc Loesch, 11 Rue Goethe, Luxembourg.
     and at grade A 7, step 3 , at 1 June 1993 , with effect from
     28 September 1993 , and not at grade A 7, step 3 , at
     1 June 1991 and at grade A 7, step 4, at the same dates,         The applicant claims that the Court should :
     with effect from 1 June 1991 ,
— order the Commission to pay him interest at an annual               — annul the decision made by the Commission on 24 April
     rate of 8 % on the amounts which he claims are owing to                1996 ('the contested decision') pursuant to Article 8 ( 3 )
     him, with effect from the date on which he ought to have               of Council Regulation ( EEC ) No 4064/89 declaring a
     been entitled to them,                                                 concentration to be incompatible with the common
                                                                            market and the functioning of the EEA Agreement ( case
                                                                            No IV/M.619 Gencor/Lonrho ),
— order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:                   — order the Commission to pay the applicant's costs .
The applicant, a former category B official and at present an
official in grade A 7, step 2, contests the appointing                Pleas in law and main arguments adduced in support:
authority's refusal to take into account, pursuant to
Article 32 of the Staff Regulations, all of his professional
experience at a level equivalent to category A prior to               The applicant, a company incorporated under the laws of
entering the Commission 's service, acquired in the Spanish           and established within the Republic of South Africa , seeks
Embassy in Brussels between 1976 and 1986 , for the                   the annulment of a decision made by the Commission on
purposes of his classification when moving from category B            24 April 1996 ( the contested decision ). By Article 1 of the
                                                                      contested decision, the Commission declared that a
to category A. The applicant also points out that he has,
since 5 July 1982, had a diploma in economic and consular             proposed concentration, involving the acquisition by the
sciences .                                                            applicant and Lonrho Pic, a company incorporated under
                                                                      the laws of England, of joint control of a South African
                                                                      company ( Impala Platinum Holdings Limited ) and the
As a successful candidate in competition CES/A/6/89, the              South African companies forming what is known as the
applicant was in June 1991 appointed an official in grade             Lonrho        Platinum   Division   ('the  concentration'),    is
A 7, step 1 . Following the judgment of the Court of First
                                                                      incompatible with the common market and the functioning
Instance of 28 September 1993 in Joined Cases T-103/92,
                                                                      of the EEA Agreement .
T-104/92 and T-105/92 Baiwir, the applicant requested that
his classification be reviewed . The appointing authority
agreed to reclassify him in step 2 of grade A 7 . The applicant,      The applicant submits that the contested decision should be
however believes that he was entitled to be reclassified in           annulled for the following reasons :
step 3 .
                                                                      ( a ) the Commission had no extraterritorial jurisdiction
The applicant argues in this regard that there has been a                    over the concentration under Regulation ( EEC )
breach of Article 32 of the Staff Regulations and of                         No 4064/89 ;
Articles 6 and 8 of the Commission decision of 1 September
1983 on the criteria applicable to appointment in grade and           ( b ) Regulation ( EEC ) No 4064/89 does not apply to
classification in step at the time of recruitment, as well as a              concentrations that create or lead to 'oligopolistic
breach of the principle of equal treatment.                                  dominance';
                                                                      ( c ) even if it would or might in principle apply to such a
                                                                             concentration, Regulation ( EEC ) No 4064/89 does not
                                                                             empower the Commission to declare a concentration to
                                                                             be incompatible with the common market on the
                                                                             ground that it would create or lead to ' oligopolistic
Action brought on 28 June 1996 by Gencor Ltd against the                     dominance';
          Commission of the European Communities
                        ( Case T- 102/96 )                            ( d ) even if Regulation ( EEC ) No 4064/89 does empower
                          ( 96/C 247/42 )                                    the Commission to declare a concentation to be
                                                                             incompatible with the common market on that ground ,
                                                                             the facts do not support such a conclusion in the present
                (Language of the case: English)                              case ;
An action against the Commission of the European                      ( e ) the Commission erred in law in refusing to accept the
Communities was brought before the Court of First                            commitments offered by the applicant;
 ---pagebreak--- No C 247/20             EN                  Official Journal of the European Communities                                      24 . 8 . 96
( f) the reasoning advanced by the Commission in support               legislative activities and application of Community law', in
       of its conclusions does not comply with the                     that it provides for the post to be filled at grade A 4/A 5 , in so
       Commission's obligations under Article 190 of the EC            far as this circumstance prevented him from applying,
       Treaty to state the reasons on which its decisions are          despite the fact that he has held that post for several
       based so as to enable the Court to exercise its powers of       years .
       judicial review, the parties to defend their rights and the
       Member States and other interested parties to ascertain         In the applicant's opinion, the post in question should not
       the circumstances in which the Commission has applied           have been advertised as an A 4/A 5 post since it has all the
       the Treaty .                                                    features for classification as an A 3 post, whether with
                                                                       regard to the tasks associated with the post or to the number
                                                                       of officials serving within the unit. From this the applicant
                                                                       concludes that the contested decision is vitiated by a
                                                                       manifest error in the assessment of the facts as well as by an
Action brought on 4 July 1996 by Ludwig Kramer against                 error of law .
          Commission of the European Communities
                         ( Case T- 104/96 )                            The applicant also claims that there has been a breach of
                                                                       Article 7 of the Staff Regulations and a misuse of powers,
                           ( 96/C 247/43 )                             arguing that the decision to advertise the post of head of unit
                                                                       B3 in DG XI as a post at grade A 4/A 5 was not taken in the
                  (Language of the case: French)                       interest of the service but rather with a view to preventing
                                                                       his application in favour of a candidate chosen on the basis
An action against the Commission of the European
                                                                       of his nationality and not on that of his ability and
Communities was brought before the Court of First                      experience within the relevant area .
Instance of the European Communities on 4 July 1996
by Ludwig Kramer, residing at Tervuren ( Belgium ),
represented by Georges Vandersanden, of the Brussels Bar,
with an address for service in Luxembourg at the offices of
Fiduciaire Myson, 1 Rue Glesener.
                                                                             Removal from the register of Case T-209/95 ( )
The applicant claims that the Court should:
                                                                                                ( 96/C 247/44 )
— annul the publication notice for the post of head of unit
     for unit XI . B. 3 as a post at grade A 4/A 5                                    (Language of the case: English)
     ( COM/111 /95 ),
— consequently annul the appointment of a grade A 5                    By order of 15 July 1996 , the President of the First Chamber
     candidate,                                                        ( Extended Composition ) of the Court of First Instance of
                                                                       the European Communities ordered the removal from the
— order the Commission to pay all of the costs .                       register of Case T-209/95 : Windstar Sail Cruises Limited,
                                                                       Wind Star Limited and Wind Spirit Limited v. Commission
Pleas in law and main arguments adduced in support:
                                                                       of the European Communities .
The applicant, a grade A 3 official , contests the vacancy
notice for the post of head of unit XI . B. 3 ' Legal affairs,         (') OJ No C 351 , 30 . 12 . 1995 .