CELEX: C1998/312/39
Language: en
Date: 1998-10-10 00:00:00
Title: Action brought on 23 July 1998 by Mannesmannröhren-Werke AG against the Commission of the European Communities (Case T-112/98)

10.10.98              EN                 Official Journal of the European Communities                                  C 312/15
orders issued by the delegate resulted in a contract which          a breach of the confidentiality of medical information,
had, in terms of achieving its goal Ð namely, development           which is an absolute requirement and a matter of public
aid for Somalia Ð plainly become wholly obsolete, being             policy.
forcibly performed. Yet the applicant's assets could have
been preserved by an immediate withdrawal from                      Lastly, the appointing authority has failed to comply with
Somalia.                                                            the mandatory time limits laid down in Article 7 of the
                                                                    rules on disciplinary proceedings: the imposition of a
                                                                    disciplinary measure three and a half years after the
                                                                    disciplinary proceedings were commenced represents a
                                                                    manifest failure to respect any reasonable time limit. In
                                                                    view of that failure, it is no longer possible for any
Action brought on 20 July 1998 by AndreÂ van Meuter                 disciplinary measure to be taken and the disciplinary
  against the Commission of the European Communities                proceedings must be closed.
                       (Case T-109/98)
                        (98/C 312/38)
               (Language of the case: French)
An action against the Commission of the European                    Action brought on 23 July 1998 by Mannesmannröhren-
Communities was brought before the Court of First                   Werke AG against the Commission of the European
Instance of the European Communities on 20 July 1998                                          Communities
by AndreÂ van Meuter, residing in Brussels, represented by                                 (Case T-112/98)
Olivier Eben and Jean-Marc Bievez, of the Brussels Bar,                                      (98/C 312/39)
with an address for service in Luxembourg at the
Chambers of Jean Tonnar, 29 Rue du FosseÂ, Esch-sur-                               (Language of the case: German)
Alzette.
                                                                    An action against the Commission of the European
The applicant claims that the Court should:                         Communities was brought before the Court of First
                                                                    Instance of the European Communities on 23 July 1998
Ð annul the disciplinary measure taken by the appointing            by Mannesmannröhren-Werke AG, whose registered office
    authority on 10 October 1997, by which the applicant            is in Mülheim an der Ruhr (Germany), represented by
    was downgraded from grade D 1, step 8, to grade D 2,            Bruckhaus Westrick Heller Löber, Rechtsanwälte, Düssel-
    step 8, and order that he be reinstated in his former           dorf, with an address for service in Luxembourg at the
    grade,                                                          Chambers of Bonn and Schmitt, 7 Val Ste Croix.
Ð order that the disciplinary proceedings against the               The applicant claims that the Court should:
    applicant be closed,
                                                                    Ð annul Commission Decision C(98) 1204 of 15 May
Ð order that no other disciplinary measure be taken                      1998 in its entirety,
    against the applicant,
                                                                    Ð in the alternative, annul Article 2 of the decision,
Ð order the Commission to pay all of the costs.
                                                                    Ð order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
By the contested decision, the appointing authority
decided to impose on the applicant, with effect from                In the course of an investigation to ascertain alleged
1 November 1997, the disciplinary measure of                        infringements by steel pipe producers of Article 85 of the
downgrading from grade D 1, step 8, to grade D 2, step 8,           EC Treaty, the Commission addressed the contested
on the grounds that the applicant had failed to comply              decision to the defendant, requiring it to provide the
with his obligation to undergo a medical examination, as            information specified in the schedule to the decision
he had undertaken to do, and that he had not lived up to            within 30 days or pay a default fine of ECU 1 000 per day
the trust which the appointing authority had placed in              in the event of non-compliance.
him.
                                                                    The applicant complains that the Commission did not
According to the applicant, he cannot be downgraded.                allow it a sufficient hearing before issuing the decision.
Despite the excellent staff reports drawn up in relation to         There was thus a lack of any proper preliminary
him, and despite his having passed a competition, he has            procedure, contrary to Article 11(5) in conjunction with
never been promoted. Downgrading means that the                     Article 16(2) of Regulation 17. The Commission further
applicant has been penalised twice on the basis of the              failed to make available to the applicant in an appropriate
same facts, the first penalty being his non-promotion.              manner those documents which it used in issuing a
                                                                    decision causing lasting prejudice to the applicant, and
Moreover, to impose a disciplinary measure without                  upon which it based that decision. The principles in the
making the applicant's medical file available to him                Solvay (1) and ICI (2) cases were thereby infringed. The
constitutes a violation of the rights of the defence. The           applicant also complains of a breach of Article 190 of the
fact that details of the applicant's state of health were           EC Treaty in that the formal statement of reasons for the
revealed to the appointing authority represents, a fortiori,        decision does not explain why it was necessary.
 ---pagebreak--- C 312/16              EN                  Official Journal of the European Communities                                  10.10.98
The applicant submits that, in accordance with the                       rights transferred to the Community pension scheme
judgment in Orkem (3), it is not obliged to answer                       which was not taken into consideration in the
questions which could lead to self-incrimination. It further             calculation of the pensionable service to be taken into
maintains that in accordance with Article 6(1) of the                    account pursuant to Article 11(2) of Annex VIII to the
European Convention on Human Rights, the guarantees                      Staff Regulations,
contained in which are fundamental principles of
Community law and thus take precedence over the merely
legislative provisions of Regulation 17, it is legally entitled      Ð order the Council to pay the costs.
to refuse to take any action whereby it would be
compelled directly to incriminate itself in the investigation.
                                                                     Pleas in law and main arguments adduced in support:
Self-incrimination has, it adds, also been held to be an
infringement of the presumption of innocence under
Article 6(2) of the European Convention on Human                     The pleas in law and main arguments are those already
Rights and of the negative freedom of expression                     raised in Case T-103/98 Kristensen v. Council (1).
protected by Article 10 of the Convention. The applicant's
right not to be compelled to incriminate itself by its own
actions arises not merely from Community law, but also,              (1) OJ C 299, 26.9.1998, p. 36.
the applicant submits, arises at the same time and in
parallel from German domestic law in so far as it is not
superseded by Community law.
By directly fixing a coercive fine, the Commission
disregarded the two-stage procedure laid down for that               Action brought on 29 July 1998 by Ivar Langer Andersen
purpose, and failed in particular to communicate the                          against the Council of the European Union
points of complaint, as required before fixing the amount
of daily coercive penalties, to allow the applicant a proper                               (Case T-118/98)
hearing and to comply with the other procedural                                              (98/C 312/41)
requirements. Moreover, the Commission's fixing of the
daily penalty at the maximum amount of ECU 1 000 was
disproportionate and thus an abuse of its discretion. The                           (Language of the case: French)
applicant comprehensively answered seven of the eleven
questions put to it in the context of the Commission's
enquiry. It was not obliged to answer the four remaining             An action against the Council of the European Union was
questions, as in that respect it could rely on its right not         brought before the Court of First Instance of the European
to be compelled to incriminate itself.                               Communities on 29 July 1998 by Ivar Langer Andersen
                                                                     resident in Rungsted Kyst, Denmark, represented by Jean-
(1) Case T-30/91 Solvay v. Commission [1995] ECR II-1821.            NoeÈl Louis, VeÂronique Leclercq, Ariane Tornel and
(2) Case T-36/91 ICI v. Commission [1995] ECR II-1847.               FrancËoise Parmentier, of the Brussels Bar, with an address
(3) Case 374/87 Orkem v. Commission [1989] ECR 3282.                 for service in Luxembourg at the offices of Fiduciaire
                                                                     Myson SARL, 30 Rue de Cessange.
                                                                     The applicant claims that the Court should:
Action brought on 23 July 1998 by Peter Clausen against              Ð annul the Council decision of 6 October 1997 refusing
             the Council of the European Union                           the request for refund of that part of the pension
                        (Case T-113/98)                                  rights transferred to the Community pension scheme
                                                                         which was not taken into consideration in the
                         (98/C 312/40)
                                                                         calculation of the pensionable service to be taken into
                                                                         account pursuant to Article 11(2) of Annex VIII to the
               (Language of the case: French)                            Staff Regulations,
An action against the Council of the European Union was
brought before the Court of First Instance of the European           Ð order the Council to pay the costs.
Communities on 23 July 1998 by Peter Clausen, resident
in La Hulpe, Belgium, represented by Jean-NoeÈl Louis,
VeÂronique Leclercq, Ariane Tornel and FrancËoise                    Pleas in law and main arguments adduced in support:
Parmentier, of the Brussels Bar, with an address for service
in Luxembourg at the offices of Fiduciaire Myson SARL,
                                                                     The pleas in law and main arguments are those already
30 Rue de Cessange.
                                                                     raised in Case T-103/98 Kristensen v. Council (1).
The applicant claims that the Court should:
                                                                     (1) OJ C 299, 26.9.1998, p. 36.
Ð annul the Council decision of 6 October 1997 refusing
     the request for refund of that part of the pension