CELEX: C2001/245/29
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-278/01: Action brought on 13 July 2001 by the Commission of the European Communities against the Kingdom of Spain

C 245/16               EN                   Official Journal of the European Communities                                          1.9.2001
The Court of First Instance was wrong to find, at paragraph 47         The applicant claims that the Court should:
of the judgment, that the assessment of the Promotions
Committee was based on the view that the applicant experi-             —      Declare that, by failing to adopt, contrary to its obligations
enced difficulties in adjusting to his duties as Head, of the                 under Article 4 of Council Directive 76/160/EEC (1) of
Madrid Information Office. According to the minutes of the                    8 December 1975 concerning the quality of bathing
Committee’s meeting, that assessment, however, is no more                     water, measures to ensure that the quality of inshore
than an assessment by the Chair of the Committee who does                     bathing water in Spain conforms to the limit values set
not even have a vote on the Committee.                                        by Article 3 of that directive, the Kingdom of Spain has
                                                                              failed to comply with the judgment of the Court of Justice
                                                                              of the European Communities of 12 February 1998 in
Finally, the Court of First Instance was wrong to find, at                    Case C-92/96 (2), and thus failed to fulfil its obligations
paragraph 48 of the judgment, that the Promotions Committee                   under Article 228 of the EC Treaty;
based itself solely on the marks awarded in the staff reports. It
follows, in fact, from the minutes of the meeting of the               —      order the Kingdom of Spain to pay to the Commission of
Committee, that it had decided to take into account the level                 the European Communities, into the ‘European Com-
of responsibility of the duties carried out by the applicant and              munity own resources’ account, a penalty payment of
to uprate the applicant’s marks accordingly.                                  EUR 45 600 in respect of every day it delays in taking the
                                                                              measures necessary to comply with the judgment in Case
                                                                              C-92/96, from the date on which judgment is delivered
Limits of judicial review:                                                    in the present case until such time as the judgment in
                                                                              Case C-92/96 is complied with;
The Court of First Instance has replaced the assessment of the         —      order the Kingdom of Spain to pay the costs.
Promotions Committee with its own subjective assessment of
the applicant’s merits.
                                                                       Pleas in law and main arguments
The Court of First Instance wrongly found, at paragraph 52 of
the judgment, that the applicant carried out the duties of Head
of the Information Office with success and failed, in so doing,        In Case C-92/96 Commission v Spain, the Court of Justice
to make an objective comparison between the applicant and              held that by failing to take all necessary measures to ensure
his colleagues.                                                        that the quality of inshore bathing waters in Spain conforms
                                                                       to the limit values set in accordance with Article 3 of Council
                                                                       Directive 76/160/EEC of 8 December 1975 concerning the
The Court of First Instance wrongly takes the view, at                 quality of bathing water, the Kingdom of Spain had failed to
paragraph 53 of the judgment, that the appointing authority            fulfil its obligations under Article 4 thereof.
failed to take proper account of the duties actually carried out
by the applicant with success. That subjective assessment does
not however support the conclusion that the Promotions                 Article 228(1) of the EC Treaty requires the Kingdom of Spain
Committee committed a manifest error of assessment.                    to take the measures necessary to comply with the judgment.
                                                                       There is no doubt whatsoever that the Kingdom of Spain
                                                                       should long ago have adopted the measures necessary to
                                                                       ensure that the quality of bathing water conformed to the limit
                                                                       values set in Article 3 of the directive; more than two years
                                                                       elapsed between the judgment and the reasoned opinion
                                                                       without the Spanish Government having adopted any
                                                                       measures.
Action brought on 13 July 2001 by the Commission of
the European Communities against the Kingdom of Spain
                                                                       Pursuant to Article 228(2) EC, the Commission asks the Court
                        (Case C-278/01)                                to order the Kingdom of Spain to pay a penalty payment of
                                                                       EUR 45 600 in respect of every day it delays in taking the
                                                                       measures necessary to comply with the judgment in Case
                        (2001/C 245/29)                                C-92/96, as from the date of delivery of the judgment in the
                                                                       present case.
An action against Kingdom of Spain was brought before the
                                                                       (1) OJ 1976 L 31, p. 1.
Court of Justice of the European Communities on 13 July
                                                                       (2) Case C-92/96 Commission v Spain [1998] ECR I-505.
2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, acting as Agent, with
an address for service in Luxembourg.