CELEX: C1995/268/53
Language: en
Date: 1995-10-14 00:00:00
Title: Action brought on 13 July 1995 by Giorgio Bernardi against the European Parliament (Case T-146/95)

No C 268/24             EN                   Official Journal of the European Communities                                   14 . 10 . 95
Second,      the  Commission         determined    the  reduction       The applicant claims that the Court should:
coefficients without first preparing a supply balance for
1995 , as required by Article 16 of Council Regulation ( EEC )          — annul the decision of the Commission notified to
No 404/93 of 13 February 1993 establishing the common                       the applicant by letter No 5445 from DAFSE
organization of the market in bananas ( 2 ). Failure to prepare             ( Departamento para Asuntos do Fundo Social Europeu
such a supply balance amounts to a procedural irregularity                  — the Portuguese European Social Fund Agency ) of
entailing the illegality of any determination of the reduction              11 May 1995 , amending, changing and reducing the
coefficients by reference to the quota .                                    amount which had been initially approved and granted
                                                                            by another Commission decision approving file Nos
Third, in determining the reduction coefficient, the                        881311 PI and 880249 P3 ,
Commission infringed the principles of fairness,
reasonableness and good administration . The applicants                 — order the Commission to pay the costs .
maintain that the coefficients of 57, 15 and 28 % , applied by
the Commission to quantities of bananas handled by                      Pleas in law and main arguments adduced in support:
primary importers, secondary importers and ripeners
respectively, are quite arbitrary . Moreover, those three               The application alleges the following defects vitiate the
categories of operators have not been clearly defined in such           legality of the Commission's decision which considers the
a way as to prevent the same bananas from being counted                 expenditure ineligible and orders the repayment of the
more than once in each of the three categories of operators .           amounts received by the applicant by way of initial
The Commission should have drawn up rules of                            advance :
administration to eliminate or reduce the risks of double
counting, but failed to do so, with the result that the                 — the decision which has now been notified to the
category of secondary importer has been wrongfully                          applicant is, even now, non-existent in its view because it
extended by some Member States . Furthermore, by reason                     has no knowledge of its actual content,
of a contradiction between the provisions of Articles 4 ( 3 )
and 7 of Commission Regulation ( EEC ) No 1442/93 of                    — the decision is unlawful inasmuch as it infringes Council
10 June 1993 laying down detailed rules for the application                 Decision 83/516/EEC of 17 October 1983 on the tasks
of the arrangements for importing bananas into the                          of the European Social Fund, Council Regulation ( EEC )
Community ( 3 ), the criteria for entitlement to a quota                    No 2950/83 of 17 October 1983 on the implementation
allocation have been more strictly applied in some Member                   of Decision 83/516/EEC and Commission Decision
States than in others . In addition, the Commission has not                  83/673/EEC of 22 December 1983 on the management
required operators to keep adequate records of the source of                 of the European Social Fund,
their fruits, with the serious consequence that bananas
imported otherwise than under category A licences appear                — the decision infringes the initial decision approving the
to have been taken into account as part of the category A                    files, which imposes only one condition : implementation
reference quantities .                                                       of the operations . The condition imposed on the
                                                                             applicant was fulfilled and the operations were
(') OJ No L 310 , 3 . 12 . 1994 .
                                                                             implemented,
 ( 2 ) OJ No L 47, 25 . 2 . 1993 .
 (•') OJ No L 142 , 12 . 6 . 1993 .                                     — the decision is fundamentally contradictory in view of
                                                                             the contents of the letter from DAFSE notifying it, thus
                                                                             infringing the applicant's rights of defence,
                                                                        — the decision also infringes essential procedural
                                                                             requirements inasmuch as it lacks a statement of reasons
                                                                             or at least is based on assumptions which are erroneous,
                                                                             obscure and inconsistent, which, in the view of the
Action brought on 10 July 1995 by Proderec — Formaçâo e                      applicant, constitute insufficient grounds.
 Desenvolvimento de Recursos Humanos, ACE — against
         the Commission of the European Communities
                           ( Case T-145/95 )
                             ( 95/C 268/52 )
                                                                         Action brought on 13 July 1995 by Giorgio Bernardi against
               (Language of tbe case: Portuguese)                                            the European Parliament
                                                                                                 ( Case T-146/95 )
 An action against the Commission of the European                                                  ( 95/C 268/53 )
  Communities was brought before the Court of First
  Instance of the European Communities on 10 July 1995 by                                 (Language of tbe case: Frencb)
  Proderec — Formaçâo e Desenvolvimento de Recursos
  Humanos, ACE, whose registered office is at 7B Avenida 25
  de Abril, S/loja, Almada , represented by Manuel Rodrigues,            An action against the European Parliament was brought
  of the Lisbon Bar, with an address for service in                      before the Court of First Instance of the European
  Luxembourg at 2 place Virchow, 2671 Luxembourg.                        Communities on 13 July 1995 by Giorgio Bernardi, residing
 ---pagebreak---  14 . 10 . 95          EN                    Official Journal of the European Communities                                  No C 268/25
in Luxembourg, represented by Giancarlo Lattanzi, of the                nomination,      infringement     of     essential   procedural
Massa-Carrara Bar, with an address for service in                       requirements and misuse of powers .
Luxembourg at 33 rue Godchaux.
The applicant claims that the Court should :
— annul the notice entitled ' Call for nominations for the              Action brought on 17 July 1995 by Hilaire Delia Pietra
     office of Ombudsman', published on 23 May 1995 ( OJ                  against the Commission of the European Communities
     No C 127, p . 4 ), and all acts connected with it or                                      ( Case T-148/95 )
     adopted as a consequence , particularly:                                                    ( 95/C 268/54 )
     — the Secretary General's Decision No 019473 of
                                                                                       (Language of tbe case: Frencb)
          15 June 1995 ,
     — the acts relating to the admissibility of the                    An action against the Commission of the European
          nominations of the persons concerned ;                        Communities was brought before the Court of First
                                                                        Instance on 17 July 1995 by Hilaire Delia Pietra , resident in
                                                                        Brussels , represented by Georges Vandersanden, of the
     — the administrative acts following the public hearing             Brussels Bar, with an address for service in Luxembourg at
          on 28 and 29 June 1995 ,                                      the offices of Fiduciaire Myson Sàrl, 1 Rue Glesener .
— order the European Parliament to pay the costs of the                 The applicant claims that the Court should :
     proceedings .
                                                                       — annul the decision by Mr A. J. Gaston contained in a
                                                                            note of 25 October 1994 by which, in so far as the
Pleas in law and main arguments adduced in support:                         applicant refused to undergo surgery, he reduced to 0 %
                                                                            the 4 % rate of invalidity that the applicant had been
                                                                            recognized as suffering by the Medical Committee , in its
The applicant states that he forwarded his nomination for                   report of 15 November 1991 ,
the office of Ombudsman following the issue of the notice
entitled ' Call for nominations for the office of Ombudsman '          — order the Commission to pay nominal damages of one
( OJ No C 127, 23 . 5 . 1995 , p . 4 ). He was not notified of any          ECU in compensation for the non-material damage
decision concerning his nomination , but deduced that he                    suffered,
had not been successful from the fact that, according to the
information published in the bulletin 'Info Memo 109 ' of              — order the Commission to pay the fees of the doctors to
21 June 1995 , he was not one of the six nominees due to be                 whom the applicant had to have recourse,
heard by the Parliament's Committee on Petitions .
                                                                       — order the Commission to pay all the costs .
The applicant contests the provisions adopted for the
implementation of Article 138e of the Treaty on European               Pleas in law and main arguments adduced in support:
Union ( which provides for the appointment of the
Ombudsman ), particularly Rule 159 of the Rules of                     The applicant considers that the defendant committed a
Procedure of the European Parliament, the notice calling for            manifest error in refusing to recognize his state of partial
nominations and , above all, the procedure used by the                 permanent invalidity as found by the Medical Committee,
Parliament for consideration of the nominations entered .               on the pretext that he refused to undergo surgery . He points
According to the applicant, the notice calling for                      out that the Medical Committee recognized that his state
nominations lays down requirements which are obscure,                  corresponded to a rate of partial permanent invalidity of
ambiguous , impossible to fulfil within the prescribed period          4 % ; although the report adds that that rate of invalidity
and scarcely mutually compatible and that it is contrary to            could be reduced to 0 % if he had an operation, nevertheless
the fundamental principles of the Treaty on the basis of                an official cannot be compelled to undergo surgery nor be
which the post of Ombudsman was created . As regards the               penalized by the administration for not doing so, even if the
procedure for considering the nominations, the applicant                operation presents only a slight risk, since the risk can never
submits that his nomination was neither registered nor                  be totally excluded . The applicant maintains that the
notified to the Members who were to elect the Ombudsman;                Commission's attitude, with its particular insistence that he
furthermore , he was not informed of any decision                       should undergo surgery, goes beyond the sphere within
concerning the outcome of his nomination .                              which it is entitled to intervene and manifestly exceeds its
                                                                       powers .
In support of his application, the applicant alleges                   The applicant maintains, furthermore , that the many faults
infringement of the Treaty on European Union, lack of                   committed by the institution in flagrant fashion, as shown in
competence of the authorities in deciding not to consider his           the file concerning the consequences of his accident on