20.11.2004

Official Journal of the European Union

C 284/12

Appeal brought on 29 September 2004 by Georgios Gouvras against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities

(Case C-420/04 P)

(2004/C 284/24)

An appeal against the judgment delivered on 15 July 2004 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-180/02 and T-113/03 between G. Gouvras and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 29 September 2004 by Georgios Gouvras, represented by A. Coolen, J.-N. Louis, E. Marchal and S. Orlandi.

The appellant claims that the Court should:

—

order the annulment of the judgment of the Court of First Instance of 15 July 2004 in Joined Cases T-180/02 and T-113/03 (Georgios Gouvras v Commission of the European Communities) in so far as it rejects the claims for annulment in Case T-180/02 and those against the Commission's Decision of 30 April 2002 to restrict to 35 % the part of his remuneration transferable to Luxembourg during the period of his secondment;

—	give directions granting the applicant leave to amend his pleas in law and forms of order sought;

—	alternatively, annul the Commission's decision of 14 June 2001 in its entirety and the Commission's decision of 30 April 2002 in so far as it restricts to 35 % of his remuneration the part transferable to Luxembourg, the place of his usual posting;

—	order the defendant to pay the costs of both cases.

Pleas in law and main arguments:

The Court of First Instance made an error of law in finding that the Commission had provided the applicant with the information necessary to enable him to maintain his interests before agreeing to be seconded in the interest of the service. In fact, it did not inform him of the decision to fix his place of posting in Athens or of the financial consequences thereof such as the withdrawal of his right to the expatriation allowance and of his right to the payment of the costs of annual travel as well as the application to his remuneration of the correction coefficient for Greece.

Also, the Court of First Instance made an error of law in finding that the conditions laid down by Article 85 of the Staff Regulations were satisfied in this case. In fact, the recovery of sums paid but not due under Article 85 of the Staff Regulations presupposes a payment irregularity of which the recipient was aware or whose erroneous nature is so obvious that he could not fail to be aware of it. In the absence of express provisions in the Staff Regulations governing the fixing of the place of posting, it could not be a matter, in this case, of an irregularity, and, in any event, in the light of the Commission's own uncertainties regarding the applicant's entitlements, he cannot be presumed to have been aware of it.

Finally, the Court of First Instance made an error of law in finding that, notwithstanding the exceptional situation of the applicant whose place of posting was changed more than 9 months after his secondment, the Commission could lawfully reject his claim made in accordance with Article 38(d) of the Staff Regulations, for the transfer, in the conditions provided for by Article 17 of Annex VII to the Staff Regulations, of the sums indispensable to cover the expenses which he had to meet in Luxembourg, the place of his usual posting.