CELEX: 62008TJ0012
Appeal
Public service
Action for annulment
Confirmatory act
Admissibility

Officials – Invalidity – Temporary staff – Application for reconsideration of a decision refusing to initiate the invalidity
procedure – Significant extension of the staff member’s sick leave following rejection of his first request – New fact justifying
reconsideration and initiation of the procedure
(Conditions of Employment of Other Servants, Art. 33)
Where a member of the temporary staff submits an application for reconsideration of a decision of the authority authorised
to conclude contracts of engagement which rejected a first request by that staff member for his case to be referred to the
Invalidity Committee, the authority must reconsider that decision if the new application is based on new and substantial facts,
and must agree to that request if, in the light of those facts, it is now conceivable that, on the basis of objective and
undisputed information in the authority’s possession, the basic conditions set out in Article 33 of the Conditions of Employment
of Other Servants are satisfied.
The authority authorised to conclude contracts of engagement is obliged to undertake such a reconsideration not just where
the state of health of the temporary staff member concerned is different from the state of health known to the authority when
it adopted the decision whose reconsideration is sought, or where the staff member’s work incapacity results from a different
disorder from that identified and taken into account in that decision. It is possible that certain new circumstances may be
capable, even if they do not demonstrate that the state of health of the temporary staff member concerned is different, of
substantially modifying the conditions which governed the earlier decision refusing to refer the case to the Invalidity Committee
and, therefore, of being treated as new and substantial facts requiring reconsideration of that decision.
The extension of the staff member’s sick leave for a significant period following the rejection of his first request to refer
his case to the Invalidity Committee constitutes such a fact, even if that new leave is justified by the same disorder as
that taken into consideration when the first request was rejected. While it is, admittedly, possible that the institution
concerned may conclude that the absence of a member of the temporary staff from his workplace on account of illness does not
justify the referral of his case to the Invalidity Committee where that institution possesses objective and undisputed evidence
that the staff member in question will very shortly be able to resume his duties, the fact nevertheless remains that the extension
of that person’s sick leave for a significant period undeniably constitutes sound evidence capable of creating doubt about
his prospects of resuming his duties, and thus calling into question the validity of the initial refusal to refer his case
to the Invalidity Committee.
(see paras 59, 63-66)