CELEX: C2001/108/46
Language: en
Date: 2001-04-07 00:00:00
Title: Case T-25/01: Action brought on 31 January 2001 by Francisco Miguel Viana França against Commission of the European Communities

7.4.2001              EN                      Official Journal of the European Communities                                     C 108/25
(3) annul the contractual rules to be contained in the                   The applicant claims that the Court should:
      applicants’ employment documentation whereby future
      amendments to the Conditions of Employment or to the
      provisional Staff Rules are to form the subject-matter of          —     annul the implied decision of the appointing authority
      contractual obligations;                                                 refusing to grant special leave for elections and the
                                                                               relevant travelling time from the afternoon of 10 June to
(4) annul the decision of the President of the defendant of                    the morning of 15 June 1999 and from the afternoon of
      27 November 2000 rejecting the applicant’s grievance;                    7 October to the morning of 12 October 1999;
(5) order the defendant to pay the costs.
                                                                         —     order the Commission to pay the costs.
Pleas in law and main arguments
By their application, the applicants, who are in an employment
                                                                         Pleas in law and main arguments
relationship of unlimited duration with the European Central
Bank, seek annulment of two rules contained in the defendant’s
provisional Staff Rules (‘SR’), which lay down a time-limit for
commencing the administrative review procedure. Until the
amendment of those rules, there was no time-limit. The
                                                                         I.     Lack of competence
applicants regard the amendment of the provisions of Articles
8.1.0 and 7.2.0 of the SR as an infringement of their
contractual rights.
                                                                         The decision of the appointing authority of 31 March 2000,
In addition, the applicants’ business travel was previously              signed by the Deputy Director-General for Competition, on
governed by Administrative Circular 07/1998. The rules                   the basis of which 6 days of annual leave were deducted,
applying to the applicants were altered, to the detriment of             amounting to an implied refusal of the applicant’s request for
the applicants, by Administrative Circular 01/2000. In the               special leave for elections and the relevant travelling time,
applicants’ view, those rules affect the essence of their employ-        infringes the provisions in force relating to the powers of the
ment relationships, and the amendment of them likewise                   appointing authority and to any decisions to delegate authority,
constitutes an infringement of their contractual rights.                 inasmuch as it was signed by someone who was not empow-
                                                                         ered to do so.
The applicants further claim that, upon concluding their
contracts, they were compelled to accept a rule whereby future
amendments to the Conditions of Employment or to the SR
are to form the subject-matter of contractual obligations.
However, the defendant is not empowered to lay down rules                II.    Infringement of the Staff Regulations
in the nature of employment legislation, and can therefore                      and the internal instruction of the
neither unilaterally alter substantive provisions for the reim-                 Commission of 21 February 1996
bursement of travel costs nor unilaterally change the contrac-
tual obligations by means of the new rules contained in
Articles 7.2.0 and 8.1.0 SR.                                             The implied refusal of the appointing authority infringes
                                                                         Article 57 of the Staff Regulations and Annex V respectively,
                                                                         as well as the internal instruction of the Commission of
                                                                         21 February 1996, which provides that travelling time is to be
                                                                         granted only upon submission of documentary evidence of
                                                                         participation in the elections. The requirement to submit any
                                                                         other documentary evidence other than that required for
Action brought on 31 January 2001 by Francisco Miguel                    special leave and the relevant travelling time for elections has
Viana França against Commission of the European Com-                     no legal basis.
                            munities
                         (Case T-25/01)
                        (2001/C 108/46)                                  III.   Breach of the duty to cooperate in good
                                                                                faith and of the principle of pro-
                                                                                portionality
                 (Language of the case: Portuguese)
An action against the Commission of the European Communi-                First, the applicant was asked, in February 2000, to submit
ties was brought before the Court of First Instance of the               documents relating to the events which took place in June and
European Communities on 31 January 2001 by Francisco                     October 1999, despite the fact that no provision of law obliged
Miguel Viana França, residing in Brussels, represented by                the applicant to keep such documents and that it was
Gonçalo Gentil Anastácio, advogado.                                     unreasonable to expect him to possess them.
 ---pagebreak--- C 108/26               EN                      Official Journal of the European Communities                                      7.4.2001
Secondly, despite not being in possession of documentary                  Following an exchange of correspondence with the Com-
evidence to prove that he had participated in the elections, the          mission, the applicant sent the defendant a letter calling upon
appointing authority did not grant even a single day in respect           it to act pursuant to Article 232 EC. However, even after being
of travelling time to the applicant, who had travelled from his           so called upon, the Commission has failed to define its
place of work to the place where elections were being held.               position. Therefore the applicant states that, some 20 months
The appointing authority’s refusal to grant him even the                  after the lodging of the complaint, the Commission has not
minimum amount of travelling time is a manifest breach of                 defined its position with regard to the preliminary inquiry
the principle of proportionality.                                         undertaken by it.
                                                                          In support of its claims, the applicant alleges breach of the
                                                                          principle of good administration, inasmuch as the Commission
                                                                          ought to have concluded the preliminary stage of the procedure
                                                                          within a reasonable time.
                                                                          Secondly, the defendant has failed to define its position with
                                                                          regard to the requests contained in the complaint.
Action brought on 29 January 2001 by Fiocchi Munizioni
 SpA against Commission of the European Communities
                           (Case T-26/01)
                          (2001/C 108/47)
                                                                          Action brought on 9 February 2001 by the Territorio
                                                                          Histórico de Alava — Diputación Foral de Alava against
                                                                                 the Commission of the European Communities
                   (Language of the case: Italian)
                                                                                                   (Case T-30/01)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 29 January 2001 by Fiocchi                                                (2001/C 108/48)
Munizioni SpA, represented by Ivo Van Bael, Enrico Adriano
Raffaelli, Fabrizio Di Gianni and Renato Antonini, avvocati.
                                                                                             (Language of the case: Spanish)
The applicant claims that the Court should:                               An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
—     declare, on the grounds set forth in the present application        European Communities on 9 February 2001 by the Territorio
      and as a consequence thereof, that the Commission has               Histórico de Alava — Diputación Foral de Alava, established
      failed to fulfil its obligations under Article 232 EC by            in Alava (Spain), represented by Marta Morales Isasi and
      failing to act with respect to the complaint of the                 Ignacio Sáenz-Cortabarrı́a Fernández, lawyers.
      applicant, having refrained from adopting the appropriate
      decisions and not having addressed the requisite acts;              The applicant claims that the Court should:
—     order the Commission to pay the costs; and                          —     annul the Commission’s decision of 28 November 2000
                                                                                initiating the procedure provided for by Article 88(2) EC
                                                                                with regard to Article 14 of Norma Foral 18/1993;
—     adopt any other necessary and equitable measure.
                                                                          —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The applicant in the present proceedings — an undertaking                 The measure to which the contested decision relates is
involved in the manufacture and marketing of arms and                     contained in Article 14 of the Norma Foral No 18/1993 of the
munitions — claims to have lodged with the Commission a                   Territorio Histórico de Alava of 5 July 1993 concerning urgent
complaint relating to State aid allegedly granted by the                  fiscal measures in support of investment and the promotion
Kingdom of Spain to E.N. Santa Barbara, having its registered             of economic activity. That measure concerns the grant of an
office in Spain. In that complaint, the applicant pointed out             exemption from corporation tax to undertakings founded in
that the alleged aid gave rise to serious distortion of compe-            1993 and 1994, and was adopted as part of a whole series of
tition in the market for arms, in which it is in direct                   fiscal measures in support of investment and the promotion
competition with E.N. Santa Barbara.                                      of economic activity.