CELEX: C2000/122/57
Language: en
Date: 2000-04-29 00:00:00
Title: Case T-28/00: Action brought on 15 February 2000 by Luis Borrego Alias against the Committee of the Regions

29.4.2000              EN                     Official Journal of the European Communities                                       C 122/37
The applicant claims that the Court should:                              The applicant claims that the Court should:
— annul Commission Decision No 2749 of 12 October                        — annul the decision of the Commission of 13 December
    1999, and                                                                 1999;
— order the Commission to pay the costs.                                 — order the Commission to pay the applicant EUR 109 921
                                                                              in performance of the supply contract;
Pleas in law and main arguments                                          — order the Commission to pay default interest;
                                                                         — order the Commission to pay the costs in their entirety.
The applicant in this case challenges the decision refusing to
allow him to file a statement with the Procura della Repubblica
(Public Prosecutor’s Office) at the Pretura Circondariale di
Varese (Varese District Court) concerning the disappearance of           Pleas in law and main arguments
24 autopsy specimens taken for the purposes of an expert’s
report, which it is impossible to repeat, in criminal proceedings
                                                                         The applicant, a company which successfully bid in response
pending before the Pretura di Foggia (Foggia District Court),
                                                                         to a call for tenders concerning a consignment of 15 000
and held in the radiochemical laboratory at the JRC in Ispra.
                                                                         tonnes of maize pursuant to Regulation No 990/98 of 11 May
                                                                         1998, contests a Commission decision refusing its request for
The contested decision justifies the refusal to allow the                payment of an additional sum of EUR 109 921,41 for the
applicant to file that statement with the Italian judicial               supply, which was furnished in accordance with the Regu-
authorities on the grounds that such refusal did not entail              lation. According to the Commission, deductions relating to
criminal consequences.                                                   undelivered quantities were calculated in accordance with the
                                                                         rules in force.
In support of his application, the applicant alleges:
                                                                         The applicant alleges that the Commission is thereby in breach
— Breach of Article 19 of the Staff Regulations;                         of its contractual obligations. It contests the figure taken by
                                                                         the Commission to be the final quantity on which to base
— Misuse of powers consisting, in particular, of a failure to            payment, and also the fact that it, the applicant, was deemed
    state reasons, distortion of matters of fact and of law, the         liable in respect of theft from its Niamey warehouses. The
    obvious inconsistency of the contested decision, and                 applicant also maintains that those thefts are accurately
    breach of the principles of sound administration, trans-             quantifiable; that it is easy to assign a value to the quantities
    parency, equal treatment, breach of the duty of the                  on which payment is outstanding; and that the applicant has
    Community and judicial authorities to cooperate in good              not been in a position to challenge the certificate of conformity
    faith and the principle of proportionality.                          because the wording is so ambiguous.
Action brought on 11 February 2000 by Société Lecureur                   Action brought on 15 February 2000 by Luis Borrego
SA against the Commission of the European Communities                             Alias against the Committee of the Regions
                         (Case T-26/00)                                                            (Case T-28/00)
                        (2000/C 122/56)                                                           (2000/C 122/57)
                   (Language of the case: French)                                          (Language of the case: French)
An action against the Commission of the European Communi-                An action against the Committee of the Regions was brought
ties was brought before the Court of First Instance of the               before the Court of First Instance of the European Communities
European Communities on 11 February 2000 by Société                      on 15 February 2000 by Luis Borrego Alias, residing in
Lecureur SA, whose seat is in Paris, represented by Lise                 Brussels, represented by Jean-Noël Louis, Greta-Françoise
Funck-Brentano, Avocat, Paris, and Jean Villette, Avocat,                Parmentier and Véronique Peere, Avocats, Brussels, with an
Versailles, France, with an address for service in Luxembourg            address for service in Luxembourg at the offices of the Société
at the Chambers of Jacques Neuen, 1 Place du Théâtre.                    de Gestion Fiduciaire Sarl, 2-4 Rue Beck.
 ---pagebreak--- C 122/38               EN                    Official Journal of the European Communities                                    29.4.2000
The applicant claims that the Court should:                             European Communities on 16 February 2000 by BSB Fleisch-
                                                                        import, whose registered office is in Berlin, represented by
— annul the Selection Board’s decision not to admit the                 Dietrich Ehle and Dirk Ehle, Rechtsanwälte, Cologne, with an
    applicant to the oral tests in internal competition CdR             address for service in Luxembourg at the Chambers of Marc
    B/01/98;                                                            Lucius, Rechtsanwalt, 6 Rue Michel Welter.
— order the defendant to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         — annul the Commission’s decision (REM 2/99) of 8 Nov-
                                                                            ember 1999;
The applicant, who is an official in Grade C with the Economic
and Social Committee, argues that the Selection Board did not
admit him to the tests on the basis of an unlawful notice of            — order the Commission to pay the costs.
competition. Both in endorsing that notice and in adopting
the contested decision, the appointing authority acted contrary
to the principle of sound administration and infringed Article
27 of the Staff Regulations.
                                                                        Pleas in law and main arguments
In support of his claims, the applicant submits:
                                                                        The contested decision refuses an application by the Federal
— the contested decision unlawfully excludes the applicant
                                                                        Republic of Germany for authorisation to waive duties of DEM
    on the ground that he does not possess a certificate of
                                                                        187 011,60 on the applicant’s importation of beef from
    secondary education, even though he has a university
                                                                        Argentina. The Hauptzollamt Essen demanded post-clearance
    qualification at least equivalent thereto;
                                                                        recovery of that amount on the ground that certificates of
                                                                        genuineness presented in the course of the clearance procedure
— in requiring Grade B status as a condition for admission,             were forgeries.
    the notice of competition wrongly excluded candidates
    possessing equivalent, or even higher, qualifications;
                                                                        The applicant maintains that there has been an infringement
— the contested decision excludes the applicant on the                  of essential procedural rights, in that it has unlawfully been
    ground that he does not possess the requisite professional
                                                                        refused access to the administrative files of the Commission. It
    experience specified by the notice of competition, notwith-
                                                                        also maintains that the decision reveals a significant defect in
    standing the fact that, within the Economic and Social              reasoning, as it entirely fails to reflect the judgment of the
    Committee, he has handled tasks entailing responsibility
                                                                        Court of First Instance in Case T-42/96 Eyckeler & Malt v
    and independent organisation.
                                                                        Commission [1998] ECR II-401, even though that judgment
                                                                        concerned a legal and factual situation that was virtually
                                                                        identical and the applicant had pointed that out.
                                                                        The applicant further accuses the Commission of a manifest
                                                                        error of assessment in applying Article 13 of Regulation (EEC)
                                                                        No 1430/79. Post-clearance recovery from the applicant
Action brought on 16 February 2000 by BSB Fleischim-                    resulted from obvious omissions of the Commission in
port against the Commission of the European Communi-                    inspecting the quotas of ‘Hilton beef’. Had the Commission
                               ties                                     conducted itself properly, post-clearance recovery would have
                                                                        been avoided. Post-clearance recovery was, moreover, inequi-
                                                                        table, as the applicant had dealt in good faith. In the light of
                         (Case T-31/00)                                 these circumstances, the applicant’s normal business risk was
                                                                        exceeded. The Commission was therefore wrong to proceed
                                                                        on the basis that there were no special circumstances within
                        (2000/C 122/58)                                 the meaning of Article 13 of that regulation, and its decision
                                                                        should be annulled.
                  (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the