CELEX: C1998/327/56
Language: en
Date: 1998-10-24 00:00:00
Title: Action brought on 20 August 1998 by Elaine Spence against the Commission of the European Communities (Case T-135/98)

C 327/32               EN               Official Journal of the European Communities                                   24.10.98
     Socialists, Pauline Green, dated 30 June 1998 and sent        Action brought on 20 August 1998 by Elaine Spence
     by registered post on 1 July 1998;                               against the Commission of the European Communities
                                                                                          (Case T-135/98)
Ð annul the future decision rejecting the complaint                                        (98/C 327/56)
     against that decision submitted by the applicant on
     10 August 1998, in so far as that complaint is not
     allowed;                                                                     (Language of the case: French)
Ð order the defendant to pay all the costs in any event.           An action against the Commission of the European
                                                                   Communities was brought before the Court of First
                                                                   Instance of the European Communities on 20 August
Pleas in law and main arguments adduced in support:                1998 by Elaine Spence, residing in Wezembeek-Oppem
                                                                   (Belgium), represented by Georges Vandersanden and
                                                                   Laure Levi, of the Brussels Bar, with an address for service
                                                                   in Luxembourg at the offices of Fiduciaire Myson SARL,
The applicant, a member of the temporary staff in Grade
                                                                   30 Rue de Cessange.
A 5, has already lodged an application (1) challenging the
Parliament's implicit decision of 11 July 1997 not to
promote him to Grade A 4 and its failure to draw up his
staff reports for the periods 1993Ð1994 and 1995Ð1996.             The applicant claims that the Court should:
By the present application, the applicant is challenging the       Ð annul the decision adopted by the appointing
decision of the Bureau of the Group of the Party of                    authority on 17 October 1997, notified to the
European Socialists of 30 June 1998, terminating his                   applicant on 23 October 1997, withdrawing a decision
contract as a member of the temporary staff with effect                of 7 August 1997 transferring the applicant and her
from the evening of 2 October 1998.                                    post to Directorate-General I Ð External Relations:
                                                                       Commercial policy and relations with North America,
                                                                       the Far East, Australia and New Zealand with effect
According to the applicant, the decision to dismiss him                from 1 September 1997 and, in so far as is necessary,
was made without duly informing the Staff Committee in                 annul the implicit decision rejecting the complaint
advance; furthermore, no reasons were given for the                    registered on 22 January 1998;
decision, which was based on an inadequate statement of
reasons. He alleges infringement of the rules in Articles 24a
and 25(2) of the Staff Regulations, which apply to                 Ð award damages provisionally set at BEF 300 000;
members of the temporary staff by virtue of Article 11(1)
of the Conditions of Employment of Other Servants
(hereinafter the CEOS'), and Article 47(2)(a) of the CEOS
and Article 11 of the internal rules on the recruitment of         Ð order the defendant to pay the costs.
officials and other servants adopted on 15 March 1989 by
the Bureau of the European Parliament. Furthermore, he
claims infringement of Article 11 of the European                  Pleas in law and main arguments adduced in support:
Convention on Human Rights and general principles of
law such as those requiring the equal treatment of
officials, respect for the rights of the defence, the
performance in good faith of agreements and the                    The applicant, an official in DG XIV of the defendant
protection of legitimate expectations, as well as the              institution, challenges the withdrawal on 17 October 1997
principle that every act of the administration must be             of the appointing authority's decision of 7 August 1997 to
based on a relevant statement of reasons.                          transfer her to DG I. That decision was based on a
                                                                   deterioration in the applicant's working conditions, which
                                                                   arose following the appointment of her last immediate
                                                                   superior, who she accused of systematic mobbing'.
Second, the applicant alleges that the appointing authority
committed a misuse of powers. In his assertion, the
contested decision dismissing him is unlawful in so far as
it is based on considerations unrelated to his aptitude and        In support of her assertions, the applicant alleges, first of
professional performance.                                          all, infringement of the principle of the protection of
                                                                   legitimate expectations. It is submitted in that respect that
                                                                   the contested decision annuls a previous decision with
(1) Case T-130/98.                                                 effect from 1 September 1997, which in practice
                                                                   constitutes a retroactive withdrawal in disregard of the
                                                                   extremely strict requirements imposed by Community
                                                                   case-law. The applicant stresses in that respect that the
 ---pagebreak--- 24.10.98             EN                   Official Journal of the European Communities                                     C 327/33
decision of 7 August 1997 was properly adopted by the                Ð hold that the defendant is obliged to make reparation
defendant, which had not received any false or incomplete                 for the non-material damage suffered by the applicant
information from her. In fact, it constitutes the final step              as a result of the illegality of the contested decision
in a procedure initiated, following the intervention of the               and order the defendant to pay damages to be
Ombudsman, between the applicant herself and the                          determined by the Court;
[acting] head of the unit to which she was to be
transferred. Furthermore, she considers there to be no
public interest which could override her interest in the             Ð order the defendant to pay             the    costs  of the
continuation of a situation which she was entitled to                     proceedings.
regard as permanent. An alleged lack of information from
certain people within DG I, which is the basis for the
contested decision, clearly cannot be assimilated to a
                                                                     Pleas in law and main arguments adduced in support:
public interest.
                                                                     The applicant accuses the appointing authority of having
The applicant also alleges a breach of the duty to state             failed to take action in the face of the sexual harassment,
reasons, in that the contested decision does not contain             coupled with harassment in connection with work,
any statement of reasons, not even a standard phrase.                allegedly suffered by the applicant at the hands of her
Furthermore, and in so far as it became apparent during              immediate superior.
the inter-departmental meeting that the contested decision
was based on an alleged lack of information from the
immediate superior to the head of the unit to which she
                                                                     In support of her claims she raises the following pleas in
was to be transferred, she claims that, even if the duty to
                                                                     law:
state reasons was satisfied on that basis, the contested
decision should in any event be considered to be based on
grounds which are invalid, since the procedures for
informing and obtaining the approval of the hierarchy                Ð Misuse of powers and infringement of Articles 12, 24
within DG I been complied with.                                           and 25 of the Staff Regulations of Officials of the
                                                                          European Communities, of Council Directive 76/207/
                                                                          EEC of 9 February 1976 on the implementation of the
                                                                          principle of equal treatment for men and women as
The applicant concludes by claiming that the appointing                   regards access to employment, vocational training and
authority acted in breach of the duty to have regard for                  promotion and working conditions (1), of the Council
the welfare of officials and the interest of the service.                 Resolution of 29 May 1990 on the protection of the
                                                                          dignity of women and men at work (2), of the
                                                                          Commission's Recommendation (92/131/EEC) of
                                                                          27 November 1991 on the protection of the dignity of
                                                                          women and men at work (3) and of the code of
                                                                          practice intended to combat sexual harassment
                                                                          annexed to the Commission's Recommendation 92/
Action brought on 20 August 1998 by G' against                           131/EEC of 27 November 1991.
        Commission of the European Communities
                       (Case T-136/98)
                                                                     Ð Breach of the general principles of legal certainty and
                        (98/C 327/57)                                     of the protection of legitimate expectations, in so far
                                                                          as the applicant, who was encouraged by the adoption
                                                                          and distribution of encouraging rules to submit a
                                                                          complaint against the person harassing her, came up
               (Language of the case: French)
                                                                          against a wall of indifference and hostility.
An action against the Commission of the European
                                                                     Ð Infringement of the rights of the defence, in so far as
Communities was brought before the Court of First
                                                                          the applicant, who was heard on two occasions during
Instance of the European Communities on 20 August
                                                                          the administrative enquiry concerning the facts under
1998 by G', represented by Anne Krywin, of the Brussels
                                                                          investigation, was never given access to the file
Bar, with an address for service in Luxembourg at the
                                                                          resulting from that enquiry. Furthermore, she claims
Chambers of AndreÂ Lutgen, 1 Rue Jean-Pierre Brasseur.
                                                                          that the enquiry was conducted with insufficient
                                                                          objectivity and impartiality.
The applicant claims that the Court should:
                                                                     (1) OJ L 39, 14.2.1976, p. 40.
                                                                     (1) OJ C 157, 27.6.1990, p. 3.
                                                                     (1) OJ L 49, 24.2.1992, p. 1.
Ð annul the implied decision rejecting complaint
    No R/18/98 submitted on 21 January 1998 by the
    applicant;