CELEX: C1999/226/59
Language: en
Date: 1999-08-07 00:00:00
Title: Case T-111/99: Action brought on 6 May 1999 by Ignacio Samper against the European Parliament

7.8.1999               EN                     Official Journal of the European Communities                                       C 226/33
— annul the decision by which the appointing authority took              Action brought on 6 May 1999 by Ignacio Samper against
     the view that the applicant’s absence from 13 November                                 the European Parliament
     to 25 November 1998 was irregular and deducted 81
     working hours from her annual leave entitlement;
                                                                                                 (Case T-111/99)
— order the European Parliament to pay to the applicant
     compensation for non material damage in the sum of                                          (1999/C 226/59)
     LUF 100 000 (one hundred thousand Luxembourg francs);
— order the defendant to pay the costs;                                                     (Language of the case: French)
— reserve unto the applicant the right to submit further                 An action against the European Parliament was brought before
     evidence during the course of the written procedure.                the Court of Firs Instance of the European Communities on 6
                                                                         May 1999 by Ignacio Samper, residing in Spain, represented
                                                                         by Eric Boigelot, of the Brussels Bar, with an address for service
                                                                         in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
Pleas in law and main arguments                                          Fort Rheinsheim.
Upon receiving her annual leave statement on 28 January                  The applicant claims that the Court should:
1999, the applicant found that 81 hours had been deducted
from the amount of annual leave to which she is lawfully                 — annul Vacancy Notice No 8675 dated 14 April 1999,
entitled.                                                                    adopted by the President of the European Parliament, Mr
                                                                             José Maria Gil-Robles, and published on 26 April 1999,
                                                                             requiring the submission by no later than 7 May 1999 of
According to the defendant, the applicant’s repeated absences                applications for the post of Head of Division (grade A 3)
cannot be justified by the existence of a pathological condition,            in the Directorate-General for Information and Public
which is, moreover, contested. On several occasion, she did                  Relations, Coordination of External Offices, Publications
not keep appointments with the medical officer and the                       and Public Events, Madrid Information Office, and annul
examining doctor was unable to contact her at her home. As                   the procedure initiated by that vacancy notice for recruit-
the defendant classified this as conduct which was ‘hostile’ to              ment by way of transfer or promotion;
the institution, she was sent a formal warning and her absences
during the periods from 3 September 1998 to 15 September
1998 and from 13 November 1998 to 25 November 1998                       — order the European Parliament to pay all the costs in any
were regarded as irregular.                                                  event, including the costs of the proceedings for interim
                                                                             measures.
The applicant maintains that she was incapable of working
during the above-mentioned periods. As regards the checks                Pleas in law and main arguments
carried out to see whether she was at home, she states that she
was consulting her own doctor at the time; and as to the
alleged absences which made it impossible for her to undergo             The applicant stases that on 21 February 1995 he was
a medical check-up, the applicant maintains that she was                 appointed head of division in grade A 3 and assigned to the
incapable of attending at the institution’s medical service              post of head of the European Parliament’s Information Office
during the periods concerned. Furthermore, she invariably                in Madrid. In its judgment of 18 March 1999 the Court of
produced medical certificates. She claims that the defendant’s           Justice held that the Parliament had committed an error in the
reproaches are unjustified.                                              recruitment procedure and that the decision appointing him
                                                                         to that post should be annulled. The Parliament complied with
                                                                         that judgment by decision of 14 April 1999, by which it
In support of her application, the applicant pleads violation of         annulled the decision appointing the applicant to the post in
the rights of the defence and infringement of Articles 25 and            issue and reinstated him in grade A 5, which had been the
60 of the Staff Regulations. She argues that the deduction by            grade occupied by him at the time of his promotion to that
the defendant of days of leave on account of unjustified                 post. On the same day, a vacancy notice was drawn up in
absences, contrary to the aforementioned provisions of the               relation to the post in issue; this specified that the post was
Staff Regulations, also constitutes a serious breach of adminis-         open only to grade A 4 officials.
trative duty giving rise to liability on the part of the institution.
Furthermore, according to the applicant, the defendant failed
to assist her in tackling the problems which she encountered             The applicant observes that, for the purposes of complying
with a person whose conduct she felt to be threatening. That             with the judgment of the Court of Justice, the Parliament was
attitude amounts to a flagrant breach of Article 24 of the Staff         not in any way obliged to take immediate steps to publish the
Regulations.                                                             vacancy notice in question. By publishing the vacancy notice
                                                                         and laying down conditions and time-limits for the submission
                                                                         of applications which were not such as to enable the applicant
                                                                         to be re-established beforehand in his career, the Parliament
                                                                         has prevented him from applying for the post in issue, whereas,
 ---pagebreak--- C 226/34              EN                      Official Journal of the European Communities                                       7.8.1999
had he not been appointed to that post on the conclusion of              The applicants consider that both the exclusive rights clause
an irregular procedure for which he is in no way responsible,            concerning the general channels and the clause granting
he would by now, in the course of a normal career, have                  preference to TPS by its associates for the special interest
reached the grade of A 4 and could apply for the post.                   channels and the television services which constitute incidental
                                                                         restrictions on the TPS joint venture, should be afforded the
The applicant considers that, by acting in that way, the                 same treatment as the joint venture. B refusing to acknowledge
Parliament has infringed Article 233 EC (ex Article 176),                the incidental nature of the restrictions deriving from those
Articles 4, 7(1), 29(1), 45 and 46 of the Staff Regulations of           clauses, the Commission is forcing the applicants to request
Officials and the internal rules and provisions adopted by the           on a regular basis the renewal of the exemptions granted,
Parliament with regard to promotion and career development,              which runs counter to Article 81 EC (ex Article 85) and the
and that it has violated the principle of equal treatment, the           principle of legal certainty. In the alternative, the applicants
duty to have regard for the welfare and interests of officials,          claim that the Commission misapplied the exemption criteria
and the principles of proportionality and of the protection              provided for in the third paragraph of the aforementioned
of legitimate expectations. He furthe1 maintains that the                Article 81, and misassessed the minimal duration of the
contravention’s of the above-mentioned rules and principles              exemption.
form part of a process of misuse of powers designed to secure
the appointment to the post in issue of a candidate chosen in            So far as concerns the clause referred to in Article 2 of
advance.                                                                 the contested decision, the applicants emphasise that the
                                                                         Commission, while considering their undertaking not to
                                                                         compete to be a restriction incidental to the setting up of the
                                                                         TPS, has nevertheless decided to restrict to three years the
                                                                         incidental status of that restriction. In their view, by adopting
                                                                         that approach, the Commission has not complied with the
                                                                         rules which it had itself laid clown in the 24th Report on
Action brought on 10 May 1999 by Métropole Télévision                    Competition Policy (1994), thus infringing Article 81 EC (ex
— M6, Suez-Lyonnaise des Eaux, France Télécom and                        Article 85) and the principle of legal certainty.
Télévision Française 1 — TF1 against Commission of the
                    European Communities
                        (Case T-112/99)
                        (1999/C 226/60)
                   (Language of the case: French)
                                                                         Action brought on 7 May 1999 by The Galileo Company
                                                                         and Galileo International L.L.C against the Council of the
An action against the Commission of the European Communi-                                        European Union
ties was brought before the Court of First Instance of the
European Communities on 10 May 1999 by Métropole
Télévision - M6, Neuilly-sur-Seine (France), Suez-Lyonnaise des                                  (Case T-113/99)
Eaux, Nanterre (France), France Télécom Paris, and Télévision
Française 1 - TF1, Paris, represented by Didier Théophile,
Patrick Dunaud and Patricia Elsen, of the Paris Bar, with an                                     (1999/C 226/61)
address for service in Luxembourg at the Chambers of Aloyse
May. 31 Grand-Rue.
                                                                                           (Language of the case: English)
The applicant claims that the Court should:
— annul in part the Commission Decision of 3 March 1999                  An action against the Council of the European Union was
    relating to a proceeding under Article 85 of the EC Treaty           brought before the Court of First Instance of the European
    (Case IV/36.237 - TPS) (OJ 1999 L 90, p. 6) to the extent            Communities on 7 May 1999 by The Galileo Company and
    of annulling Articles 2 and 3 thereof;                               Galileo International L.L.C., represented by Richard Plender,
                                                                         Sara Masters, Katherine Holmes and Daniel Austin, with an
— order the Commission to pay the costs.                                 address for service in Luxembourg at the Chambers of Elvinger,
                                                                         Hoss and Prussen, 15 Côte d’Eich.
Pleas in law and main arguments
                                                                         The applicant claims that the Court should:
The applicants criticise the Commission for having granted
only a temporary negative clearance of three years in respect            — annul Article 1(7)(b), second indent, of Council Regulation
of certain clauses in the agreements setting up the Télévision               (EC) No 323/1999 of 8 February 1999 to the extent to
par Satellite (TPS) company, namely, on the one hand, the                    which that measure applies to operators of Computer
clause on the exclusive transmission of the four channels on                 Reservation Systems in being on the date when the
TPS and the clause on the special-interest channels and                      measure was made; and
television services provided by TPS (Article 3 of the contested
decision) and, on the other, the non-competition clause (Article         — order the Council to pay the costs of the action including
2 of the contested decision).                                                those of the applicants.