# C_2011319EN.01002402.xml

| 29.10.2011 | EN | Official Journal of the European Union | C 319/24 |
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29.10.2011

EN

Official Journal of the European Union

C 319/24

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Appeal brought on 8 September 2011 by European Commission against the judgment of the Civil Service Tribunal of 28 June 2011 in Case F-55/10, AS v Commission

(Case T-476/11 P)

2011/C 319/52

Language of the case: French

Parties

Parties

Appellant: European Commission (represented by J. Currall and B. Eggers, Agents)

Appellant:

Other party to the proceedings: AS (Brussels, Belgium)

Other party to the proceedings:

Form of order sought by the appellant

Form of order sought by the appellant

| — | Annulment of the judgment of the Civil Service Tribunal of 28 June 2011 in Case F-55/10 AS v Commission; |
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Annulment of the judgment of the Civil Service Tribunal of 28 June 2011 in Case F-55/10 AS v Commission;

AS

Commission

| — | Order for costs in accordance with the law. |
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Order for costs in accordance with the law.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the appeal, the appellant relies on four plea(s) in law.

| 1. | First plea in law, alleging an error of law in that the applicant was held to have an interest in the annulment of the decision rejecting her candidature. The Commission submits:






  — | First branch: breach of Union law by failure to have regard to the judgment of 9 December 2010 in Case T-526/08 P Commission v Strack in so far as the CST acknowledged the right of the person concerned to seek the annulment of the decision rejecting her application for the post at issue despite the fact that she did not ask for annulment of the appointment decision, whereas those two decisions are inseparable; |
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1.

First plea in law, alleging an error of law in that the applicant was held to have an interest in the annulment of the decision rejecting her candidature. The Commission submits:

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First branch: breach of Union law by failure to have regard to the judgment of 9 December 2010 in Case T-526/08 P Commission v Strack in so far as the CST acknowledged the right of the person concerned to seek the annulment of the decision rejecting her application for the post at issue despite the fact that she did not ask for annulment of the appointment decision, whereas those two decisions are inseparable;

Commission

Strack

| — | Second branch: error in the legal characterisation of the facts in so far as an interest in bringing proceedings was acknowledged in the abstract, without all the evidence having been specifically examined; |
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Second branch: error in the legal characterisation of the facts in so far as an interest in bringing proceedings was acknowledged in the abstract, without all the evidence having been specifically examined;

| — | Third branch: wrongful refusal to take account of certain information taken from the medical file which demonstrates that the applicant had no interest in bringing proceedings in this case. |
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Third branch: wrongful refusal to take account of certain information taken from the medical file which demonstrates that the applicant had no interest in bringing proceedings in this case.

| 2. | Second plea in law, alleging, first, breach of Union law when interpreting and applying the rule of correspondence between the complaint and the action in referring to the judgment of the CST of 1 July 2010 in Case F-45/07 Mandt v Parliament and in taking the view that the new plea alleging breach of the Staff Regulations of Officials of the European Union was admissible despite the fact that it was not raised in the complaint and that it was ‘substantively’ different from the single plea alleging breach of the notice of vacancy put forward in the complaint and, second, breach of Article 91(2) of those Regulations in taking the view that the ‘cause of action’ is correctly defined as ‘challenge by the applicant to the substantive legality of the contested measure or, in the alternative, to its formal legality’, which would strip the pre-litigation procedure of all meaning and would no longer serve the purpose of that procedure which is to facilitate an amicable settlement between the person concerned and the appointing authority. |
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2.

Second plea in law, alleging, first, breach of Union law when interpreting and applying the rule of correspondence between the complaint and the action in referring to the judgment of the CST of 1 July 2010 in Case F-45/07 Mandt v Parliament and in taking the view that the new plea alleging breach of the Staff Regulations of Officials of the European Union was admissible despite the fact that it was not raised in the complaint and that it was ‘substantively’ different from the single plea alleging breach of the notice of vacancy put forward in the complaint and, second, breach of Article 91(2) of those Regulations in taking the view that the ‘cause of action’ is correctly defined as ‘challenge by the applicant to the substantive legality of the contested measure or, in the alternative, to its formal legality’, which would strip the pre-litigation procedure of all meaning and would no longer serve the purpose of that procedure which is to facilitate an amicable settlement between the person concerned and the appointing authority.

Mandt

Parliament

| 3. | Third plea in law, alleging breach of Article 7(1) of the Staff Regulations of Officials and an error in the statement of reasons in so far as the CST interpreted Article 7(1) of those Regulations as granting an absolute right to every official to have access to all posts in his grade. The CST thereby misconstrued the scope of Article 7(1) of the Staff Regulations and of Article 10 of Annex XIII to the Staff Regulations and the explanations given by the Commission regarding the interest of the service. |
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3.

Third plea in law, alleging breach of Article 7(1) of the Staff Regulations of Officials and an error in the statement of reasons in so far as the CST interpreted Article 7(1) of those Regulations as granting an absolute right to every official to have access to all posts in his grade. The CST thereby misconstrued the scope of Article 7(1) of the Staff Regulations and of Article 10 of Annex XIII to the Staff Regulations and the explanations given by the Commission regarding the interest of the service.

| 4. | Fourth plea alleging breach of Union law in that the sum of EUR 3 000 was granted by way of compensation for non-material damage whereas the plea alleging breach of Article 7 of the Staff Regulations was not only inadmissible but also unfounded. |
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4.

Fourth plea alleging breach of Union law in that the sum of EUR 3 000 was granted by way of compensation for non-material damage whereas the plea alleging breach of Article 7 of the Staff Regulations was not only inadmissible but also unfounded.

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