CELEX: C1997/054/53
Language: en
Date: 1997-02-22 00:00:00
Title: Action brought on 16 December 1996 by Margarida Maria Mendes Pires Afonso against the Commission of the European Communities (Case T-210/96)

No C 54/32            EN                    Official Journal of the European Communities                                     22 . 2 . 97
21 February 1995 , in order to remind him that his leave               — annul the Commission 's decision rejecting the claim
on personal grounds had come to an end . It was not until                   for compensation for the damage suffered by the
 19 April 1996 that the applicant was reinstated, by                        applicant,
decision of the appointing authority, in the post which he
now occupies. That decision took effect from 1 June 1996 ,             — order the Commission to reinstate the applicant in
and the applicant therefore took up his duties again with                   respect of the period from 1 January 1992 to 1 July
effect from that date .                                                      1993 and to pay him the remuneration to which he is
                                                                            entitled for that period, together with default interest
The applicant states           in that regard that,       in the            at the rate of 8 % per annum as from the date on
circumstances , the defendant's conduct was unlawful .                      which the remuneration due first became payable until
In his view, the semi-unconditional nature of the                           the day on which payment is effected,
reinstatement obligation laid down in Article 40 ( 4 ) ( d ) of
the Staff Regulations has been clearly confirmed by the                — order the Commission to pay the costs .
relevant case-law, subject only to the availability of a
vacant post corresponding to the abilities required of the             Pleas in law and main arguments adduced in support:
person concerned . That obligation cannot therefore be
disregarded on account of any professional activities                  The applicant, a Commission official on leave on personal
which the official in question was pursuing on the date                grounds since 1 January 1989, asks the Commission to
when the first post fell vacant. Consequently, the claim by            pay compensation for the damage suffered through not
the appointing authority, in its decision rejecting the                being reinstated, in accordance with Article 40 ( 4 ) ( d ) of
complaint, that it took into account the applicant's                   the Staff Regulations, in the first post to fall vacant and,
inability immediately to free himself of his responsibilities          in particular, in post A 7/4 007165 , declared vacant in
as professor at the University of Lausanne in order to                 DG III/D/ 1 on 22 October 1991 . The Commission has
return to the Parliament cannot constitute a valid excuse
                                                                       failed as yet to show that it carried out a genuine and
in the circumstances . In actual fact, the applicant never             detailed    examination      of his  abilities vis-a-vis   those
put forward any obstacle to his reinstatement.                         required by the post in question . Furthermore, the
                                                                       applicant alleges that the Commission 's appraisal of his
Even if ( which is denied ) the head of the appointing                 adaptability, which led to the refusal to reinstate him in
authority was legitimately led by the applicant to believe             the first post to fall vacant, discloses a manifest error of
                                                                       assessment .
that that authority could postpone the date of his
reinstatement, it was not open to the appointing authority,
for its part, to disregard the wording and purpose of the
aforementioned provision of the Staff Regulations in order
unilaterally to evade its obligations .
                                                                       Action brought on 16 December 1996 by Margarida
                                                                       Maria Mendes Pires Afonso against the Commission of
                                                                                         the European Communities
                                                                                              ( Case T-2 10/96 )
Action brought on 12 December 1996 by Adam Buick                                                 ( 97/C 54/53 )
   against the Commission of the European Communities
                        ( Case T-209/96 )                                              (Language of the case: French)
                           ( 97/C 54/52
                                                                       An action against the Commission of the Europeah
                                                                       Communities was brought before the Court of First
                (Language of the case: French)                         Instance of the European Communities on 16 December
                                                                       1996 by Margarida Maria Mendes Pires Afonso, residing
                                                                       in Luxembourg, represented by Christophe Steyaert, of the
An action against the Commission of the European
                                                                       Brussels Bar, with an address for service in Luxembourg at
Communities was brought before the Court of First
                                                                       the applicant's residence, 6 rue Henri Pensis .
Instance of the European Communities on 12 December
1996 by Adam Buick, residing in Brussels, represented by
Jean-Noel Louis, Thierry Demaseure and Ariane Tornel, of               The applicant claims that the Court should:
the   Brussels   Bar,    with    an   address  for    service in
Luxembourg at the offices of Fiduciaire Myson Sari, 30                 — annul the decision of the appointing authority of
rue de Cessange .                                                           26 February 1996 in so far as it appoints the applicant
                                                                            to grade A 7, step 3 , and implicitly refuses to appoint
                                                                            her to grade A 6,
The applicant claims that the Court should :
                                                                       — annul the decision of the appointing authority of
— declare that the Commission acted unlawfully in not                       1 October 1996 expressly rejecting the complaint
    reinstating the applicant on 1 January 1992 in post                     which the applicant submitted against the above
    007165-ex Strauss, declared vacant in DG III/D/ 1 on                    decision and which was lodged at the Secretariat­
    22 October 1991 ,                                                       General of the Commission on 26 June 1996 ,
 ---pagebreak--- 22 . 2 . 97           EN                  Official Journal of the European Communities                                     No C 54/33
— order the Commission to pay the costs of the                       — pursuant to the provisions of Article 215 of the Treaty,
     proceedings.                                                         find that the Community has incurred non-contractual
                                                                          liability and that this has resulted in damage to
                                                                          Europeenne Automobile for which reparation must be
Pleas in law and main arguments adduced in support:                       made,
The applicant, an official in grade A 7, step 3 , claims that
there has been an error of law in the application of                 — consequently, award Européenne Automobile the sum
Article 31 ( 2 ) of the Staff Regulations, particularly in so             of ECU 246 000 as compensation ,
far as the statement of reasons of the appointing authority
makes it impossible for that provision to have any
independent application vis-a-vis the first paragraph of             — order the Commission to pay the costs .
Article 27 and Article 32 of the Staff Regulations, which
are, however, designed to cover different situations
                                                                     Pleas in law and main arguments adduced in support:
regarding the classification in grade of recently recruited
officials .   Furthermore,     the    Commission 's    conduct
constitutes a breach of the principle of equal treatment of          The applicant, an undertaking carrying on business as an
officials since the Commission places in the same grade all          intermediary in the distribution of motor vehicles by way
external candidates, irrespective of the fact that they have         of parallel imports made by it as agent for the final
very different qualifications as regards relevant                    consumer, in accordance with the provisions of
professional experience, and officials recruited as a result         Commission Regulation ( EEC ) No 123/85 , states that it
of integral ' establishment' competitions retain the grade           lodged a complaint with the Commission on 27 July 1994
which they had as temporary staff prior to establishment.            criticizing the steps taken by the Peugeot Group ( PSA ) in
In contrast to candidates recruited directly as officials,           relation to Peugeot concessionaries of its subsidiaries
temporary staff are graded in accordance with rules that             outside France to dissuade them from selling vehicles to
allow full account to be taken of experience acquired                French intermediaries, with a view to partitioning the
before they entered the Commission's service .                       market. By letter of 9 October 1996 , the Commission
                                                                     informed the applicant of its decision to reject the
Finally, the applicant considers that the appointing                 complaint. That decision forms the subject-matter of the
authority manifestly erred in its assessment of the facts            present case (').
when it formed the view that her professional and
academic qualifications were unexceptional, whether in
general or with reference to the requirements of the post            The applicant takes the view that it has adduced sufficient
in question .                                                        evidence to establish the existence of the agreement of
                                                                     which it complains and that the contested decision is
                                                                     vitiated by a manifest error as to the probative value of
                                                                     that evidence . It also considers that the Commission had
                                                                     no excuse for not investigating the matter since it was well
                                                                     aware that failure by it to state its position would allow
                                                                     the untrammelled development of as serious an illegal
Action brought on 17 December 1996 by Européenne                     course of conduct as a partitioning of the market, directly
Automobile Sari against the Commission of the European               detrimental to the applicant, but also jeopardizing the
                          Communities                                development of the wider market and adversely affecting
                       ( Case T-211 /96 )                            the interests of consumers . Finally, the applicant contests
                                                                     the argument that there was insufficient Community
                          ( 97/C 5.4/54 )                            interest, on which the Commission relies in its reasons for
                                                                     the contested decision .
                (Language of the case: French)
                                                                     With regard to its action for damages, the applicant
An action against the Commission of the European                     submits that, by refusing to examine the documents which
Communities was brought before the Court of First                    indicated anti-competitive practices on the part of PSA,
Instance of the European Communities on 17 December                  the Commission erred and caused the Community to incur
1996 by Europeenne Automobile Sari , having its                      non-contractual liability. It also argues that this refusal to
registered office in Carcassonne ( France ), represented by          intervene and to adopt appropriate measures has had, and
Jean Claude Fourgoux, of the Paris Bar, with an address              continues to have , particularly deleterious effects on its
for service in Luxembourg at the Chambers of Pierrot                 supplies and development. From this it concludes that it is
Schiltz, 4 rue Beatrix de Bourbon .                                  entitled to damages for the harm which it has suffered .
The applicant claims that the Court should :                         (') An action for failure to act and for damages which was
                                                                         brought by the applicant in the context of the same complaint
                                                                         is pending before the Court of First Instance ( Case T-9/96 , OJ
— pursuant to the provisions of Article 173 of the Treaty,               No C 95 , 30 . 3 . 1996 ).
     annul the decision which the Commission notified to
     Europeenne Automobile on 9 October 1996 not to
     investigate the complaint lodged on 27 July 1994,