CELEX: C2003/124/11
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-116/03 P: Appeal brought on 14 March 2003 by Augusto Fichtner, a former official of the Commission of the European Communities, against the judgment of 16 January 2003 of the Fourth Chamber of the Court of First Instance in Case T-75/00 Augusto Fichtner v Commission

24.5.2003               EN                       Official Journal of the European Union                                          C 124/7
Appeal brought on 14 March 2003 by Augusto Fichtner,                           b)   even if it should be deemed that the appellant did,
a former official of the Commission of the European                                 however, fail to fulfil said obligation, such breach
Communities, against the judgment of 16 January 2003 of                             could not be held to have been committed ‘intention-
the Fourth Chamber of the Court of First Instance in Case                           ally or through negligence’;
           T-75/00 Augusto Fichtner v Commission
                                                                         2.    the principle of proportionality (by the administration)
                                                                               by:
                         (Case C-116/03 P)
                                                                               a)   misuse of its powers: the Commission, by adopting
                                                                                    the contested decision, pursued an objective other
                          (2003/C 124/11)                                           that for which the relevant power had been con-
                                                                                    ferred on it (safeguarding the internal rules of the
                                                                                    civil service) and, in any event, in order to achieve
                                                                                    purposes other than those declared;
An appeal against the judgment of 16 January 2003 of the
Fourth Chamber of the Court of First Instance in Case T-75/                    b)   manifest error of assessment of the facts: the Com-
00 Augusto Fichtner v Commission was brought before the                             mission failed to take into account:
Court of Justice of the European Communities on 14 March
2003 by Augusto Fichtner, represented by Michele Tamburini                          1)    the good faith of the appellant;
and Franco Colussi, lawyers.
                                                                                    2)    that he could not have been refused the per-
                                                                                          mission in question since the outside activity
                                                                                          did not impair the official’s independence nor
The appellant claims that the Court should:
                                                                                          was detrimental to the work of the Communi-
                                                                                          ties.
—     set aside the contested judgment;
—     uphold the claims submitted at first instance and, accord-
      ingly;
      —     annul the contested decision of the appointing
            authority of 30 September 1999, which is at issue;           Reference for a preliminary ruling by the Consiglio di
                                                                         Stato in sede giurisdizionale, Sezione Sesta by order of
                                                                         that Court of 17 December 2002 in the case of Società
      —     order the Commission to pay him the outstanding              Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
            remuneration and allowances as revalued and with             re e dei Trasporti and Regione Autonoma del Friuli
            interest to run from the date on which the decision                                    Venezia Giulia
            took effect until actual payment is made;
                                                                                                  (Case C-117/03)
      —     order the Commission to make good the material
            and non-material damage suffered by the appellant,
            such compensation being assessed at EUR 50 000 or                                     (2003/C 124/12)
            any other amount which the Court might deem
            appropriate and equitable or as may be subsequently
            decided;
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Consiglio di Stato in
—     order the Commission to pay the costs.                             sede giurisdizionale, Sezione Sesta (Judicial Committee of the
                                                                         Council of State, Sixth Chamber) of 17 December 2002,
                                                                         received at the Court Registry on 18 March 2003, for a
                                                                         preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
                                                                         against Ministero delle Infrastrutture e dei Trasporti and
Pleas in law and main arguments
                                                                         Regione Autonoma del Friuli Venezia Giulia on the following
                                                                         question:
The judgment of the Court of First Instance is contrary to
Community law, in particular to:
                                                                         Is Article 4(5) of Directive No 92/43/EEC (1) of 21 May 1992
                                                                         to be interpreted as meaning that the measures under Article 6
1)    Article 86(1) of the Staff Regulations, inasmuch as:
                                                                         and, in particular, under Article 6(3) of that directive are
                                                                         mandatory for the Member States only after final approval at
      a)    the appellant did not fail to fulfil his obligations         Community level of the list of sites under Article 21 or,
            under the third paragraph of Article 12 of the Staff         alternatively, in addition to determination of the ordinary
            Regulations, having proved that he did request               commencement date of conservation measures, must a distinc-
            permission to pursue an outside activity;                    tion be drawn between declaratory listing and determinative