# C_2012311EN.01001401.xml

| 13.10.2012 | EN | Official Journal of the European Union | C 311/14 |
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13.10.2012

EN

Official Journal of the European Union

C 311/14

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Appeal brought on 17 August 2012 by the European Commission against the judgment of the Civil Service Tribunal of 13 June 2012 in Case F-63/11, Macchia v Commission

(Case T-368/12 P)

2012/C 311/19

Language of the case: French

Parties

Parties

Appellant: European Commission (represented by J. Currall and D. Martin, acting as Agents)

Appellant:

Other party to the proceedings: Luigi Macchia (Brussels, Belgium)

Other party to the proceedings:

Form of order sought by the appellant

Form of order sought by the appellant

| — | Set aside the judgment of the Civil Service Tribunal of 13 June 2012 in Case F-63/11 Macchia v Commission; |
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Set aside the judgment of the Civil Service Tribunal of 13 June 2012 in Case F-63/11 Macchia v Commission;

Macchia

Commission

| — | Dismiss the action brought by Mr Macchia in Case F-63/11; |
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Dismiss the action brought by Mr Macchia in Case F-63/11;

| — | Hold that each party shall bear its own costs of the present instance; |
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Hold that each party shall bear its own costs of the present instance;

| — | Order Mr Macchia to pay the costs incurred before the Civil Service Tribunal. |
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Order Mr Macchia to pay the costs incurred 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 four pleas in law.

| 1. | First plea in law, alleging infringement of the prohibition on ruling ultra petita, since the CST, firstly, extended the subject-matter of the dispute by annulling the Commission’s decision not only because it refuses any prolongation of Mr Macchia’s contract, but also because of its refusal to award him a new contract, while the petition in the application at first instance referred only to the annulment of the Commission’s decision not to renew his contract and, secondly, distorted the subject-matter of the dispute by holding that there was no need to examine the complaint of the applicant at first instance, Mr Macchia, that the ground for refusal based on the eight-year rule, despite the fact that that complaint lay at the heart of the action at first instance. |
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1.

First plea in law, alleging infringement of the prohibition on ruling ultra petita, since the CST, firstly, extended the subject-matter of the dispute by annulling the Commission’s decision not only because it refuses any prolongation of Mr Macchia’s contract, but also because of its refusal to award him a new contract, while the petition in the application at first instance referred only to the annulment of the Commission’s decision not to renew his contract and, secondly, distorted the subject-matter of the dispute by holding that there was no need to examine the complaint of the applicant at first instance, Mr Macchia, that the ground for refusal based on the eight-year rule, despite the fact that that complaint lay at the heart of the action at first instance.

ultra petita

| 2. | Second plea in law, alleging infringement of the adversarial principle, since the CST extended and distorted the subject-matter of the dispute without giving the Commission the opportunity of submitting observations in that regard. |
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2.

Second plea in law, alleging infringement of the adversarial principle, since the CST extended and distorted the subject-matter of the dispute without giving the Commission the opportunity of submitting observations in that regard.

| 3. | Third plea in law, alleging infringement of the prohibition on ruling ultra vires in that, firstly, the CST annulled the Commission’s decision because the Commission failed to ascertain whether there was another post to which the person concerned could usefully be appointed and, secondly, it held that it has the power to ascertain whether the grounds given by the administration for refusing to renew a contract are not such as to call into question the criteria and conditions which have been laid down by the legislature in the Staff Regulations seeking to ensure that contractual staff are able to benefit, over time, from a certain continuity of employment, although that there is nothing in the provisions of the Conditions of Employment of Other Servants of the European Union. |
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3.

Third plea in law, alleging infringement of the prohibition on ruling ultra vires in that, firstly, the CST annulled the Commission’s decision because the Commission failed to ascertain whether there was another post to which the person concerned could usefully be appointed and, secondly, it held that it has the power to ascertain whether the grounds given by the administration for refusing to renew a contract are not such as to call into question the criteria and conditions which have been laid down by the legislature in the Staff Regulations seeking to ensure that contractual staff are able to benefit, over time, from a certain continuity of employment, although that there is nothing in the provisions of the Conditions of Employment of Other Servants of the European Union.

ultra vires

| 4. | Fourth plea in law, alleging distortion of the interest of the service and disregard of the case-law of the Court of Justice, firstly, by holding that the interest of the service must be reconciled with the duty of care and requires the possibility of giving the person concerned new duties to be examined and, secondly, by wrongly deducing from the case-law of the Court of Justice that the Commission cannot validly claim a lack of any interest of the service in renewing the contract of the person concerned, since Article 8 of the Conditions of Employment of Other Servants of the European Union must be understood as guaranteeing a certain continuity of employment to staff holding a fixed-term contract. |
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4.

Fourth plea in law, alleging distortion of the interest of the service and disregard of the case-law of the Court of Justice, firstly, by holding that the interest of the service must be reconciled with the duty of care and requires the possibility of giving the person concerned new duties to be examined and, secondly, by wrongly deducing from the case-law of the Court of Justice that the Commission cannot validly claim a lack of any interest of the service in renewing the contract of the person concerned, since Article 8 of the Conditions of Employment of Other Servants of the European Union must be understood as guaranteeing a certain continuity of employment to staff holding a fixed-term contract.

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