CELEX: C1999/281/53
Language: en
Date: 1999-10-02 00:00:00
Title: Case T-178/99: Action brought on 6 August 1999 by Sonia Marion Elder and Robert Dale Elder against the Commission of the European Communities

C 281/28                EN                    Official Journal of the European Communities                                        2.10.1999
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant in the present case, who is also the applicant in
Case T-20/98 Jemaa v Council (1), contests the decision of the
appointing authority rejecting her request that it bear the              The applicants, who have already made an application to the
expense of an apartment corresponding to the needs of her                Commission for review of its tacit or implied refusal to grant
family by reimbursing the amount of her monthly rent.                    access to certain minutes of the Advisory Committee on VAT
                                                                         (the VAT Committee) established by Article 29 of the Sixth
                                                                         VAT Directive (1), are now attacking the Commission’s express
The decision refusing her request is based on the grounds,               and definitive decision refusing ‘access to the minutes in
first, that the applicant was at the material time occupying             question’.
accommodation which was owned by her, and, second,
that she was not required, for reasons connected with the
performance of her duties, to move her place of residence
outside Geneva, where she had been sent.
                                                                         The applicants submit that the contested decision infringes
                                                                         the Code of Conduct attached to Commission Decision
In support of her claims, the applicant pleads infringement of           94/90/ECSC/EC/Euratom (Access Code) and/or Article 253 EC
Article 71 of the Staff Regulations and of Articles 5, 18 and            on the following grounds:
23 of Annex X to the Staff Regulations, together with failure
to comply with the duty to have regard for the welfare and
interests of officials. She maintains in that regard that none of        — The contested decision fails to indicate the means of
the aforementioned provisions makes reimbursement of the                      redress, and thus infringe a mandatory rule of law relating
actual cost of the renting of accommodation by an official                    to the application of the Treaty;
posted outside the Community conditional on a change of
residence for reasons connected with the performance of his
or her duties, or on the official concerned not being the owner          — The third paragraph of the contested decision, in which
of real property in the place of employment.                                  the refusal to allow access is expressed, is utterly devoid
                                                                              of reasons. Should, however, the contested decision be
                                                                              construed as meaning that the defendant refuses access to
(1) OJ C 94 of 28.3.1998, p. 35.                                              the minutes in question because the rule of confidentiality
                                                                              extends to the minutes of meetings, then the applicants
                                                                              submit that the contested decision is inadequately
                                                                              reasoned;
                                                                         — The contested decision does not contain any particular
                                                                              reasons for which the minutes in question fall under a
                                                                              relevant head of exception to the general right to and
Action brought on 6 August 1999 by Sonia Marion Elder                         principle of the fullest possible public access to documents.
and Robert Dale Elder against the Commission of the
                     European Communities
                          (Case T-178/99)                                For the sake of completeness, the applicants submit that
                                                                         where consultation of statutory committee (such as the VAT
                                                                         Committee or a ‘comitology’ committee) is, as here, an
                         (1999/C 281/53)                                 essential procedural requirement, the non-observance of which
                                                                         leads to the annulment of a legislative act, there can never be
                                                                         any justification for refusing to produce proof of such
                   (Language of the case: English)                       consultation, in the form of a probative contemporaneous
                                                                         report (such as minutes), since in the absence of proof the
                                                                         legislative act in question must be declared void. That being
An action against the Commission of the European Communi-
                                                                         so, not only is the contested decision manifestly invalid, but
ties was brought before the Court of First Instance of the
                                                                         the very validity of the UK legislation in question would be
European Communities on 6 August 1999 by Sonia Marion
                                                                         endangered if the defendant were to persist in its refusal to
Elder and Robert Dale Elder, represented by Scott Crosby, of
                                                                         grant access to the minutes as requested by the applicants.
Kemmler Rapp Böhlke & Crosby, 9 Rond-Point Schuman,
Brussels.
The applicants claim that the Court should:
                                                                         (1) Case T-78/99 (Elder and Elder v Commission), OJ C 174 of 19 June
— annul the decision of the defendant dated 8 June 1999                      1999, p. 11.
     refusing access to the minutes of the VAT Committee as
     specified in the application for review dated 6 January
     1999;
— order the defendant to pay the applicants’ costs pursuant
     to Article 87 of the Rules of Procedure of the Court of First
     Instance.