# C_2011290EN.01001001.xml

| 1.10.2011 | EN | Official Journal of the European Union | C 290/10 |
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1.10.2011

EN

Official Journal of the European Union

C 290/10

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Appeal brought on 25 July 2011 by Yvette Barthel and Others against the order of the Civil Service Tribunal of 10 May 2011 in Case F-59/10 Barthel and Others v Court of Justice

Barthel and Others v Court of Justice

(Case T-398/11 P)

2011/C 290/14

Language of the case: French

Parties

Parties

Appellants: Yvette Barthel (Arlon, Belgium), Marianne Reiffers (Olm, Luxembourg) and Lieven Massez (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

Appellants:

Other party to the proceedings: Court of Justice of the European Union

Other party to the proceedings:

Form of order sought by the appellants

Form of order sought by the appellants

| — | Annulment of the order of 10 May 2011 of the Civil Service Tribunal in Case F-59/10 Barthel and Others v Court of Justice dismissing the appellants’ action as inadmissible; |
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Annulment of the order of 10 May 2011 of the Civil Service Tribunal in Case F-59/10 Barthel and Others v Court of Justice dismissing the appellants’ action as inadmissible;

Barthel and Others

Court of Justice

| — | A declaration that the action is admissible; |
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A declaration that the action is admissible;

| — | Referral of the case back to the CST for judgment on the merits in accordance with law; |
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Referral of the case back to the CST for judgment on the merits in accordance with law;

| — | Reservation of the costs. |
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Reservation of the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the appeal, the appellants rely on two grounds of appeal:

| 1. | The first ground of appeal alleges breach of the obligation to state the reasons for its order, on the ground that in dismissing the appellants’ action as inadmissible the Civil Service Tribunal infringed Article 296 TFEU and the first sentence of Article 36 of the Statute of the Court of Justice of the European Union, as well as Article 7(1) of Annex 1 thereto, by not examining all the breaches of law alleged before it and by not enabling the appellants to ascertain its grounds for rejecting their pleas in law alleging that it was unlawful to interpret Article 90(2) of the Staff Regulations of officials of the European Union by contrary inference from Article 91 thereof and relying on the right of officials to submit to the appointing authority of their instituton a complaint against any act adversely affecting them within, under the second indent of Article 90(2), a period of three months starting on the date of notification of the decision to the person concerned. By failing to refute all the pleas in law and arguments deployed by the appellants in their action for annulment, the Civil Service Tribunal thereby infringed its obligation to state the reasons for its order. |
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1.

The first ground of appeal alleges breach of the obligation to state the reasons for its order, on the ground that in dismissing the appellants’ action as inadmissible the Civil Service Tribunal infringed Article 296 TFEU and the first sentence of Article 36 of the Statute of the Court of Justice of the European Union, as well as Article 7(1) of Annex 1 thereto, by not examining all the breaches of law alleged before it and by not enabling the appellants to ascertain its grounds for rejecting their pleas in law alleging that it was unlawful to interpret Article 90(2) of the Staff Regulations of officials of the European Union by contrary inference from Article 91 thereof and relying on the right of officials to submit to the appointing authority of their instituton a complaint against any act adversely affecting them within, under the second indent of Article 90(2), a period of three months starting on the date of notification of the decision to the person concerned. By failing to refute all the pleas in law and arguments deployed by the appellants in their action for annulment, the Civil Service Tribunal thereby infringed its obligation to state the reasons for its order.

| 2. | The second ground of appeal alleges error of law, on the ground that the Civil Service Tribunal held that the decision of 29 October 2009 rejecting the appellants’ request constituted a decision purely confirmatory of a failure to reply which was deemed to be an implied decision rejecting the request, although the lateness of the express decision was explained by the wait for an internal opinion sought from one of the Court of Justice’s services to enable it to examine whether the appellants fulfilled the conditions for entitlement to the allowance for shiftwork under Article 56a of the Staff Regulations of officials of the European Union. |
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2.

The second ground of appeal alleges error of law, on the ground that the Civil Service Tribunal held that the decision of 29 October 2009 rejecting the appellants’ request constituted a decision purely confirmatory of a failure to reply which was deemed to be an implied decision rejecting the request, although the lateness of the express decision was explained by the wait for an internal opinion sought from one of the Court of Justice’s services to enable it to examine whether the appellants fulfilled the conditions for entitlement to the allowance for shiftwork under Article 56a of the Staff Regulations of officials of the European Union.

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