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26.9.

98 EN Official Journal of the European Communities C 299/27

5. Questions on shift work and shift workers: Ð infringement of Articles 90 and 91 of the Staff
Regulations of Officials,
In view of the fact that the working time at issue is
shift work only in relation to on-call duty, and in the
absence of harmonising legislation, can the work Ð infringement of Articles 26 and 43 of the Staff
performed by the medical practitioners concerned be Regulations of Officials: contrary to the assertions of
regarded as shift work and must they be regarded as the Court of First Instance, the absence of periodic
shift workers in accordance with the definition staff reports for 1991 to 1993 and 1993 to 1995 not
contained in Article 2(5) and (6) of the Directive? only affected the administrative situation and career of
the appellant but also deprived that official of all
(1) Council Directive 93/104/EC of 23 November 1993 defence rights,
concerning certain aspects of the organisation of working time
(OJ L 307, 13.12.1993, p. 18). Ð breach of the concept of interests of the service' and
(2) OJ L 183, 29.6.1989, p. 1.
breach of the audi alteram parte rule and of the
principles of equal treatment and of non-
discrimination: in finding that the Commission did not
have to prove the facts alleged or the extent to which
blame should be apportioned between the two officials
Appeal brought on 3 August 1998 by W. against the concerned, the Court of First Instance has contravened
judgment delivered on 28 May 1998 by the Fifth Chamber the case-law and also implicitly acknowledged that the
of the Court of First Instance of the European Commission committed an error of assessment and
Communities in Joined Cases T-78/96 and T-170/96 misused its powers,
between W. and the Commission of the European
Communities Ð infringement of Article 25(1) of the Staff Regulations
(Case C-304/98 P) of Officials.
(98/C 299/41)
(Case T-170/96)
An appeal against the judgment delivered on 28 May
1998 by the Fifth Chamber of the Court of First Instance Ð infringement of Articles 215(2) and 178 of the EC
of the European Communities in Joined Cases T-78/96 Treaty: for the Court of First Instance to regard an
and T-170/96 between W. and the Commission of the action for damages as a claim for compensation
European Communities was brought before the Court of ancillary to an action for annulment amounts to a
Justice of the European Communities on 3 August 1998 distortion of the applicant's pleadings. The material
by W., represented by Gilles Bouneou, of the Luxembourg and non-material damage in respect of which
Bar, with an address for service in Luxembourg at 4 rue reparation is sought in the present case arises out of a
de l'Avenir. failure by the administration to adopt a decision and
was caused to the appellant by conduct which cannot
The appellant claims that the Court should: be characterised as an act adversely affecting an
official because they produce no legal effects. This is
Ð declare the appeal admissible and well-founded,
precisely the case with regard to the plea alleging:
and accordingly infringement of Articles 4 and 29; breach of the duty
to have regard for the welfare of officials; misuse of
Ð set aside the contested judgment in Cases T-78/96 and powers; inadequate statement of reasons.
T-170/96,

Ð grant the form of order sought at first instance,

Ð order the Commission to pay the costs in their
entirety.
Reference for a preliminary ruling by the Divisional
Pleas in law and main arguments adduced in support: Court, Queen's Bench Division, by order of that Court of
14 July 1998, in the Case of the Queen against (1)
(Case T-78/96) Minister for Agriculture, Fisheries and Food, (2) Secretary
of State for the Environment, ex parte: Monsanto plc, and
Ð irregularity of the proceedings: the Court of First I Pi Ci SpA, Intervener
Instance misinterpreted the facts submitted before it (Case C-306/98)
and failed to take into account evidence adduced and
offered to be adduced by the appellant, (98/C 299/42)

Ð the Court of First Instance restricted the rights of the
defence, Reference has been made to the Court of Justice of the
European Communities by an order of the Divisional
Ð contradictory and inadequate grounds of the judgment Court, Queen's Bench Division, of 14 July 1998, which
appealed against as a result of incorrect findings of was received at the Court Registry on 4 August 1998, for
facts, a preliminary ruling in the Case of The Queen against (1)