CELEX: C1998/094/85
Language: en
Date: 1998-03-28 00:00:00
Title: Action brought on 21 January 1998 by the Scottish Soft Fruit Growers Limited against the Commission of the European Communities (Case T-22/98)

C 94/36               EN                   Official Journal of the European Communities                                       28.3.98
Court of Justice, must not be borne by an official assigned           In contesting that rejection, the applicant pleads, first,
to a non-member State. The result of the contested                    infringement of Article 25(2) of the Staff Regulations,
decisions is to unjustly enrich the institutions whereas the          stating that the defendant did not provide him with the
applicant actually incurred costs for accommodation for               means to enable him to assess whether the contested
which she was reimbursed. The fact that she owns the                  decision was well-founded.
building which she occupies is of no effect on the
genuineness of the cost of accommodation incurred.
                                                                      The applicant also alleges infringement of Article 12 of
                                                                      the Conditions of employment of other servants and that
Moreover, there is no provision of the Staff Regulations or
                                                                      the vacancy notice is unlawful inasmuch as the exclusion
of Annex X to the Staff Regulations which authorises an
                                                                      criterion relied on by the APCC to justify rejecting his
institution to refuse to reimburse the cost of
                                                                      candidature, which in any event is not expressly stated in
accommodation of an official assigned to a non-member
                                                                      the vacancy notice, does not constitute a proper means for
State who owns the accommodation which he or she
                                                                      achieving the objective pursued by the abovementioned
occupies in the place where the institution has sent him or
                                                                      provisions, namely, securing for the institution the services
her solely in the interest of the service.
                                                                      of officials of the highest standard of ability, efficiency and
Finally, the contested decisions breach the general                   integrity.
principle that all officials must be treated equally
inasmuch as they are based on internal directives which               Finally, the applicant argues that the APCC committed a
do not taken into consideration the accommodation factor              manifest error of assessment when it considered that his
when determining the weighting where an official becomes              candidature could not be taken into consideration for the
the owner of the flat or building which he occupies.                  post for which he had applied, whereas his qualifications,
                                                                      training and experience perfectly match the job profile for
                                                                      the post.
Action brought on 19 January 1998 by Carlos Alberto
Leite Mateus against the Commission of the European
                         Communities
                        (Case T-21/98)                                Action brought on 21 January 1998 by the Scottish Soft
                                                                      Fruit Growers Limited against the Commission of the
                         (98/C 94/84)                                                     European Communities
               (Language of the case: French)                                                 (Case T-22/98)
                                                                                               (98/C 94/85)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 19 January                                    (Language of the case: English)
1998 by Carlos Alberto Leite Mateus, residing at
Zaventem (Belgium), represented by Jean-NoeÈl Louis,                  An action against the Commission of the European
Ariane Tornel and FrancËoise Parmentier, of the Brussels              Communities was brought before the Court of First
Bar, with an address for service in Luxembourg at Fidu-               Instance of the European Communities on 21 January
ciaire Myson SARL, 30 Rue de Cessange.                                1998 by the Scottish Soft Fruit Growers Limited,
                                                                      represented by Fergus Randolph, with an address for
The applicant claims that the Court should:                           service in Luxembourg at the offices of Arendt &
                                                                      Medernach, 8Ð10, rue Matthias Hardt.
Ð annul the decision of the Commission of 11 March
    1997 to reject the applicant's candidature for post
    NPPR/2002/96,                                                     The applicant claims that the Court should:
Ð order the defendant to pay the costs.                               Ð annul the decision of the Commission, received by the
                                                                          applicant on 12 November 1997, refusing to accede to
Pleas in law and main arguments adduced in support:
                                                                          a request made by the Scottish Office concerning the
                                                                          repayment of start-up grant by the applicant, and
The applicant, an official in Grade B at the Commission
since 1988, put forward his candidature in response to a
call for expressions of interest published on 14 October              Ð order the Commission to pay the costs.
1996 with a view to employing temporary staff in
Research' budgetary posts. By memorandum of 11 March
                                                                      Pleas in law and main arguments adduced in support:
1997 he was informed that his candidature had been
rejected. Following the complaint lodged against that
decision, the authority with the power to conclude                    The applicant explains that it was formed in 1992 to carry
contracts (APCC) stated that the rejection of the                     on business as the producers' organisation for raspberries
applicant's candidature was based on the fact that he                 in the United Kingdom. As such, under Article 2(2) of
could not participate in a selection procedure for                    Council Regulation (EEC) 1991/92, establishing a special
temporary staff members since he was already an official.             scheme for raspberries intended for processing (OJ L 199,
 ---pagebreak--- 28.3.98               EN                  Official Journal of the European Communities                                      C 94/37
18.7.1992, p. 1), it was entitled to receive a start-up grant        achieved so demands and where the legitimate
from the competent national authorities on submitting to             expectations of those concerned are duly respected. It
them a programme to improve the competitiveness of                   considers that the relevant criteria had in fact been
raspberry production for processing. Pursuant to                     fulfilled and that therefore the retroactive legislation could
Article 2(3), the said grant is fixed at ECU 50 per tonne of         have been adopted. In the applicant's view, the
raspberries as marketed for processing by the producers'             Commission's reliance on the principle of non-retroactivity
organisations, normally during the first marketing year              in order to refuse to accede to the request in question was
following special recognition. As the applicant was                  wholly wrong and unlawful in all circumstances.
recognised in April 1993, the relevant marketing year for
the purpose of determining the amount of the grant was
from 1 June 1993 to 31 May 1994.
Pursuant to Commission Regulation (EEC) No 2252/92,
laying down special rules for the raspberry market (OJ               Action brought on 26 January 1998 by Antonio Pernice
L 219, 4.8.1992, p. 19), 70 % of the start-up grant was                against the Commission of the European Communities
paid by the Intervention Board, the competent national                                      (Case T-24/98)
authority, on 2 July 1993. Because it was based on a
                                                                                              (98/C 94/86)
marketing period which had only just started, the
applicant's grant was provisionally calculated on the basis
of the quantity marketed in the marketing year 1 June                               (Language of the case: French)
1993 to 31 May 1994.
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
The weather conditions were very unusual during the                  Instance of the European Communities on 26 January
marketing year 1993/94, so that instead of marketing                 1998 by Antonio Pernice, residing at Brussels, represented
approximately 7 000 tonnes of raspberries, it only                   by Jean-NoeÈl Louis, Ariane Tornel and FrancËoise
marketed just over 4 000 tonnes. However, Article 6 of               Parmentier, of the Brussels Bar, with an address for service
Regulation (EEC) No 2252/92 specifically allowed                     in Luxembourg at Fiduciaire Myson SARL, 30 Rue de
marketing organisations, which had been adversely                    Cessange.
affected by bad weather, to use the second marketing year
following recognition as the basis for the calculation of
the grant. Unfortunately, the relevant year (1994/95) was            The applicant claims that the Court should:
even less clement and the applicant's sales tonnage
dropped to just over 3 500 tonnes. The Intervention Board            Ð annul the decision of 12 November 1997 to continue
then sought the repayment of GBP 83 745 from the                          to suspend the applicant of his duties and to prohibit
applicant.                                                                him from attending as chairman, contributor or mere
                                                                          participant in conferences, colloquia, seminars and
                                                                          other events or similar training programmes,
On 25 October 1995 the Scottish Office, Agriculture,
Environment and Fisheries Department, taking an interest
in the matter, wrote to the Commission. In that letter, it           Ð order the defendant to pay to the applicant ECU 1 as
set out the background to the problem and requested the                   symbolic damages for non-material and professional
                                                                          damage suffered as a result of successive wrongful
Commission to amend Regulation (EEC) No 1991/92
slightly so as to take into account the exceptionally                     conduct,
adverse weather conditions in Scotland during the relevant
period and thereby not to force the national authorities to          Ð order the defendant to pay the costs.
order the repayment of the start-up grant on the restricted
wording presently in force.                                          Pleas in law and main arguments adduced in support:
By letter of 16 October 1997 (the contested decision), the           The applicant, a member of the temporary staff, contests
Commission answered that it could not accede to that                 the suspension measure imposed on him by the appointing
request. This decision was based on two points: first, the           authority, pending a definitive disciplinary measure, on the
decision sought on behalf of the applicant would have the            ground of complaints based on failure to observe the third
effect of cancelling a national recovery order and secondly          paragraph of Article 12 and the first paragraph of
such a decision would have to be applied retroactively.              Article 17 of the Staff Regulations. The applicant points
                                                                     out in this regard that the suspension measure was
                                                                     adopted despite the Disciplinary Board's recommendation
As to the first point, the applicant states that there is no         that he be only reprimanded.
reason, legal or otherwise, why the relevant national
authority should not cancel a recovery order where such
                                                                     In support of his claim, the applicant puts forward the
action is warranted.
                                                                     following:
As to the second point, it maintains that Community law              Ð infringement of Article 88 of the Staff Regulations,
permits retroactive legislation where the purpose to be                   unlawfulness of the suspension decision, abuse of