# C_2012049EN.01003001.xml

| 18.2.2012 | EN | Official Journal of the European Union | C 49/30 |
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18.2.2012

EN

Official Journal of the European Union

C 49/30

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Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-70/05 Mische v Commission

(Case T-641/11 P)

2012/C 49/54

Language of the case: English

Parties

Parties

Appellant: Harald Mische (Brussels, Belgium) (represented by: R. Holland, J. Mische and M. Velardo, lawyers)

Appellant:

Other parties to the proceedings: European Commission, Council of the European Union

Other parties to the proceedings

Form of order sought by the appellant

Form of order sought by the appellant

| — | Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-70/05 and, to the extent possible based on the facts before the Court deliver judgment, and: |
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Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-70/05 and, to the extent possible based on the facts before the Court deliver judgment, and:

| — | Annul the Commission’s decision of 11 November 2004 in so far as it determines the appelant’s grading; |
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Annul the Commission’s decision of 11 November 2004 in so far as it determines the appelant’s grading;

| — | Order the Commission to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.); |
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Order the Commission to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.);

| — | Order the Commission to pay the cost of these proceedings and those before the Civil Service Tribunal. |
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Order the Commission to pay the cost of these proceedings and those before the Civil Service Tribunal.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the appeal, the appellant relies on three pleas in law.

| 1. | First plea in law, alleging that the Civil Service Tribunal erroneously failed to examine the plea of infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union, as well as the paragraph 3 of the said provision related to the right for damage compensation, namely its conditions of ‘fairness’ and ‘timeliness’ for handling the appellant's affairs in relation to a number of factual situations, although such a plea of infringement had been explicitly raised. |
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1.

First plea in law, alleging that the Civil Service Tribunal erroneously failed to examine the plea of infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union, as well as the paragraph 3 of the said provision related to the right for damage compensation, namely its conditions of ‘fairness’ and ‘timeliness’ for handling the appellant's affairs in relation to a number of factual situations, although such a plea of infringement had been explicitly raised.

| 2. | Second plea in law, alleging that the Civil Service Tribunal erroneously declared as inadmissible the plea of infringement of Article 5(5) of the Staff Regulations (1) with its specific legal conditions providing that not just equal, but, in fact, ‘identical conditions of recruitment and service career shall apply to all officials’. |
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2.

Second plea in law, alleging that the Civil Service Tribunal erroneously declared as inadmissible the plea of infringement of Article 5(5) of the Staff Regulations (1) with its specific legal conditions providing that not just equal, but, in fact, ‘identical conditions of recruitment and service career shall apply to all officials’.

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identical conditions of recruitment and service career shall apply to all officials

| 3. | Third plea in law, alleging that the Civil Service Tribunal erroneously failed to consider the legally acquired continuity of career of former temporary agents, as clarified by the Court of Justice in its recent case-law (case C-177/10). In addition, the Civil Service Tribunal erroneously declared as inadmissible the plea of illegality of Article 5(4) of Annex XIII to the Staff Regulations arguing that the appellant had not been graded under that provision. |
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3.

Third plea in law, alleging that the Civil Service Tribunal erroneously failed to consider the legally acquired continuity of career of former temporary agents, as clarified by the Court of Justice in its recent case-law (case C-177/10). In addition, the Civil Service Tribunal erroneously declared as inadmissible the plea of illegality of Article 5(4) of Annex XIII to the Staff Regulations arguing that the appellant had not been graded under that provision.

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(1)  Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).

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