CELEX: C1997/318/40
Language: en
Date: 1997-10-18 00:00:00
Title: Action brought on 7 July 1997 by EPAC, Empresa para a Agro-Alimentação e Cereais, SA, against the Commission of the European Communities (Case T-204/97)

C 318/20            [ EN 1                 Official Journal of the European Communities                                   18 . 10. 97
Pleas in law and main arguments adduced in support:                   Action brought on 7 July 1997 by EPAC, Empresa para a
                                                                      Agro-Alimentagao e Cereais, SA, against the Commission
                                                                                       of the European Communities
The applicant, a Swedish national employed as a grade                                         ( Case T-204/97 )
A 5 member of the temporary staff, contests his
classification in that grade . He points out, in that regard,                                   ( 97/C 318/40 )
that the Swedish version of the Official Journal of the
European Communities which the defendant sent to the
                                                                                    (Language of the case: Portuguese)
applicant in consequence of the interest expressed by the
latter referred to an offer of a grade A 4 post in the VAT
Unit of DG XXI ( offer 6T/XXI/94 ). Other posts were also             An action against the Commission of the European
offered at different grades in the same publication . After           Communities was brought before the Court of First
he had submitted his application for the abovementioned               Instance of the European Communities on 7 July 1997 by
post, it was formally offered to him by the Commission,               EPAC, Empresa para a Agro-Alimenta^ao e Cereais, SA,
which nevertheless indicated to him that he would be
                                                                      whose registered office is at Avenida Almirante Gago
classified in grade A 5 , step 1 . Upon the applicant pointing        Coutinho, N? 26 , Lisbon, represented by Joao Mota de
out that he had applied for an A 4 post, the competent                Campos, of the Lisbon Bar, with an address for service in
service of the Commission replied that the classification             Luxembourg at the Chambers of Joaquim Calvo Basaran,
in grade A 5 was provisional and that his definitive                  34 Boulevard Ernest Feltgen, 1515 Luxembourg.
classification would be determined by the Grading
Committee .     It was    not  until  six   months    after  the
commencement of his employment that the applicant                     The applicant claims that the Court should:
learned that he was to be definitively classified in grade
A 5 , step 3 , and that the initial proposal concerning
classification in grade A 4 resulted from an error in the             — uphold the application and thus declare null and void
Swedish version of the Official Journal of the European                     the contested decision,
 Communities .
                                                                      — order the Commission to pay the costs .
In support of his claims, the applicant makes the
following assertions :
                                                                      Pleas in law and main arguments adduced in support:
— breach of the principle of the protection of legitimate             EPAC, Empresa para a Agro-Alimentagao e Cereais, SA, a
     expectations, in that he was at all times persuaded to           limited liability company governed by Portuguese law,
     apply for a grade A 4 post and could not reasonably              whose capital is exclusively public, challenges the interim
     have detected the error which the defendant admits               measure of 30 April 1997 whereby the Commission of the
     having committed ,                                               European Communities ordered the Portuguese State to
                                                                      ' suspend immediately the State guarantee granted to EPAC
                                                                      — Empresa para a Agro-Alimenta^ao e Cereais'. The
 — the existence in the present case of a manifest error of           object of EPAC, as a public undertaking, consists in
     assessment, inasmuch as classification in grade A 5               'ensuring the supply of cereals and seed, taking into
     would not have taken into account the exceptional                account the protection of production, consumption
     qualifications which he possesses in the field of                requirements and the overriding interests of the domestic
     revenue law. Indeed, upon being recruited, the                   economy', activities and obligations which it performed as
     applicant understood the Commission to say that it                a monopoly.
     wished to engage him on account of his exceptional
     experience . It could therefore be maintained that the
     specific needs of the service required the engagement            The applicant claims that it is going through financial
     of a staff member with particular qualifications,                 difficulties as a result of circumstances attributable to acts
                                                                       or omissions of the State which the latter had the duty to
                                                                       make good in the context of an appropriate economic and
                                                                       financial restructuring.
 — failure to observe the duty to have regard for the
     welfare and interests of officials, in that, by refusing to
     take account of the notice of vacancy published in                Among the causes which led to that situation, the
     the Swedish version of the Official Journal of the                applicant cites :
     European Communities, which constitutes an official ,
     public act binding on the Commission, and by
     refusing, moreover, to take into account the                       1 . the liberalization of the trade in cereals brought about
     exceptional nature of his qualifications, the                           by accession to the Community;
     Commission disregarded his interests .
                                                                        2 . the failure of the only shareholder to provide proper
                                                                             and timeous financial support;
 ---pagebreak--- 18 . 10. 97           I EN 1                 Official Journal of the European Communities                                    C 318/21
3 . the demand that EPAC undertake work that is the                     ( d ) in any event, the Commission's interim decision,
       responsibility of the State;                                           inasmuch as it is radical, takes no account of the
                                                                              circumstances of the case and of the interests and
                                                                              values at issue, is in breach of the principles of good
4 . the failure of Silopor, Empresa de Silos Portuários SA,                   faith and of the legitimate expectations of the
       to pay its debt to EPAC.                                               economic operators affected by it and seriously
                                                                              offends against the principle of proportionality.
Thus, an economic viability and financial restructuring
plan for EPAC was drawn up by Government Order
No 887/96 — SETF of 17 May 1996, which was
approved jointly by the SETF and the SEPAA by way of
Government Order of 26 July 1996 . That joint order                     Action brought on 11 July 1997 by Christopher Atkin
proposed that EPAC be authorized to negotiate a loan at                 and others against the Commission of the European
                                                                                                      Communities
market rates up to a maximum of Esc 50 000 000 000,
30 000 000 000 of which were to be guaranteed by the                                              (Case T-205/97)
State .
                                                                                                     ( 97/C 318/41
                                                                                          (Language of the case: French)
In support of its claims the applicant makes the following
submissions :
                                                                        An action against the Commission of the European
                                                                        Communities was brought before the Court of First
I.       The statement of reasons for the           Commission 's
                                                                        Instance of the European Communities on 11 July 1997
                                                                        by Christopher Atkin, residing in Brussels, David
decision is not adequate. It considers in this respect that             Cornwell, residing at Kraainem ( Belgium ), and Paul
the statement of reasons for the adoption of the contested              Smeulders, residing at Sutton Courtney ( United Kingdom ),
decision is even more necessary in view of the fact that the            represented by Marc-Albert Lucas, of the Liege Bar, with
extraordinary power which the case-law of the Court of                  an address for service in Luxembourg at the Chambers of
Justice conferred on the Commission to impose interim                   Evelyne Korn, 21 rue de Nassau .
measures by way of provisional decisions envisaged until
now only the suspension of payments by the State to
undertakings receiving aid and not the suspension of a                  The applicants claim that the Court should:
mere State guarantee which does not constitute any form
of aid for the banks to which it was extended and which                 — annul the Commission's decision rejecting their request
are in a third-party relationship to the undertaking which                    to be regraded,
obtained the State guarantee .
                                                                        — annul the Commission's decision rejecting their
                                                                              administrative complaint,
II .      The   Commission's     decision  is  unlawful    in  the
conditions in which it was adopted:                                     — order the Commission to pay the costs .
                                                                         Pleas in law and main arguments adduced in support:
 ( a ) the Portuguese State 's guarantee did not constitute
        State aid within the meaning of Article 92 of the EC
       Treaty. The applicant points out in this respect                  The pleas in law and main arguments are the same as in
       that the Commission does not claim that the State 's              Case T- 16/97 (').
       guarantee for nothing more than a restructuring
        operation of EPAC's assets — a guarantee which did               (>) OJ C 74, 8 . 3 . 1997, p . 27.
        not involve either the direct or indirect transfer of
        State resources to that public           undertaking —
        constitutes State aid . Likewise, the contested decision
        makes no mention of the right/duty of the Portuguese
        State, in its capacity as holder of the whole of the
        undertaking's capital, to lend it such support;                  Action brought on 15 July 1997 by Georges Berthu
                                                                                   against the Council of the European Union
                                                                                                   ( Case T-207/97 )
 ( b ) even if it should be characterized as aid, the
        Portuguese State was entitled to grant it without being                                       ( 97/C 318/42 )
        required to notify it to the Commission;
                                                                                          (Language of the case: French)
 ( c) accordingly, there was no breach of Article 93 ( 3 ) of            An action against the Council of the European Union was
        the EC Treaty;                                                   brought before the Court of First Instance of the European