# C_2020095EN.01003901.xml

| 23.3.2020 | EN | Official Journal of the European Union | C 95/39 |
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23.3.2020

EN

Official Journal of the European Union

C 95/39

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Action brought on 30 January 2020 — CX v Commission

(Case T-52/20)

(2020/C 95/49)

Language of the case: French

Parties

Applicant: CX (represented by É. Boigelot, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare his action admissible and well founded; |
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declare his action admissible and well founded;

consequently,

| — | annul the decision of 21 March 2019, under the reference Ares(2019)1889562 to reinstate the applicant in grade AD 8, step 5; |
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annul the decision of 21 March 2019, under the reference Ares(2019)1889562 to reinstate the applicant in grade AD 8, step 5;

| — | annul the decision of 21 October 2019, under the reference Ares(2019)6485832, notified on the same date, by which the appointing authority rejected the applicant’s complaint, which he had lodged on 21 June 2019 under the reference R/348/19, against the contested decision; |
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annul the decision of 21 October 2019, under the reference Ares(2019)6485832, notified on the same date, by which the appointing authority rejected the applicant’s complaint, which he had lodged on 21 June 2019 under the reference R/348/19, against the contested decision;

| — | acknowledge the harm resulting from the loss of opportunity of being promoted and from being deprived of the right to continue his duties; on that basis, order the Commission to pay compensation provisionally assessed at EUR 300 000 (three hundred thousand), subject to an increase or reduction in that amount in the course of the proceedings; |
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acknowledge the harm resulting from the loss of opportunity of being promoted and from being deprived of the right to continue his duties; on that basis, order the Commission to pay compensation provisionally assessed at EUR 300 000 (three hundred thousand), subject to an increase or reduction in that amount in the course of the proceedings;

| — | order the defendant to pay all costs of the proceedings, in accordance with the Rules of Procedure of the General Court of the European Union. |
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order the defendant to pay all costs of the proceedings, in accordance with the Rules of Procedure of the General Court of the European Union.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging a breach of the obligation to execute the judgments of the General Court pursuant to Article 266 TFUE, as well as infringements of the principle of legitimate expectations and the principle of good faith. The applicant states that, by the Commission’s own admission, the Commission did not carry out a reconstruction of his career, as it was required to do, to comply with the judgment of 13 December 2018, CX v Commission (T-743/16 RENV, not published, EU:T:2018:937). The applicant adds that the Commission undertook no review of his circumstances, nor considered the comparative merits of other officials eligible for promotion. The applicant concludes by submitting that the abovementioned judgment of the General Court which annulled the decision to remove him from post constituted an assurance which was able to give rise, on his part, to justified expectations that his career would be reconstructed by the appointing authority in a fair and sincere manner, and in accordance with the applicable provisions and principles. |
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1.

First plea in law, alleging a breach of the obligation to execute the judgments of the General Court pursuant to Article 266 TFUE, as well as infringements of the principle of legitimate expectations and the principle of good faith. The applicant states that, by the Commission’s own admission, the Commission did not carry out a reconstruction of his career, as it was required to do, to comply with the judgment of 13 December 2018, CX v Commission (T-743/16 RENV, not published, EU:T:2018:937). The applicant adds that the Commission undertook no review of his circumstances, nor considered the comparative merits of other officials eligible for promotion. The applicant concludes by submitting that the abovementioned judgment of the General Court which annulled the decision to remove him from post constituted an assurance which was able to give rise, on his part, to justified expectations that his career would be reconstructed by the appointing authority in a fair and sincere manner, and in accordance with the applicable provisions and principles.

| 2. | Second plea in law, alleging a breach of the obligation to state reasons and a failure to state any reasons. The applicant submits that the contested note does not contain any statement of reasons as regards the decision to classify him in grade A 8, step 5. According to the applicant, this is an ‘act adversely affecting a person’ as opposed to a ‘purely confirmatory act’, since that note implements and thus, in fact, notifies a decision of the Commission adversely affecting a person, even though it may have been tacit and may not have been notified previously to the applicant. |
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2.

Second plea in law, alleging a breach of the obligation to state reasons and a failure to state any reasons. The applicant submits that the contested note does not contain any statement of reasons as regards the decision to classify him in grade A 8, step 5. According to the applicant, this is an ‘act adversely affecting a person’ as opposed to a ‘purely confirmatory act’, since that note implements and thus, in fact, notifies a decision of the Commission adversely affecting a person, even though it may have been tacit and may not have been notified previously to the applicant.

| 3. | Third plea in law, alleging a substantive error, a manifest error of assessment, a breach of the general provisions for implementing Article 45 of the Staff Regulations of Officials of the European Union (the ‘Staff Regulations’) and procedural defects. The applicant submits that there is no provision anywhere in the Staff Regulations that a disciplinary decision downgrading an official automatically takes precedence over a subsequent promotion decision where the addressee of both decisions is the same official and that promotion is, by its very nature, a legal measure to which no prior or subsequent condition may be attached and which may not be limited in time. The Commission should therefore have considered, when reconstructing the applicant’s career, that he had been classified in grade AD 10 since 1 January 2010. In addition, the applicant submits that, following the General Court’s annulment of the decision to remove him from post, and for the purposes of reinstating him and reconstructing his career, the Commission was also under an obligation to reopen the promotion procedure at the stage at which it had been suspended pursuant to the general provisions for implementing Article 45 of the Staff Regulations. Lastly, according to the applicant, for the purposes of reconstructing his career in a fair and rigorous manner and in good faith, the Commission was bound, pursuant to the principle of good administration, to analyse in detail all the relevant information making it possible to reach a reasoned decision with regard to the grade in which he should have been reinstated. Not only did the Commission fail to do that, but it did not even hear the applicant before taking its decision. |
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3.

Third plea in law, alleging a substantive error, a manifest error of assessment, a breach of the general provisions for implementing Article 45 of the Staff Regulations of Officials of the European Union (the ‘Staff Regulations’) and procedural defects. The applicant submits that there is no provision anywhere in the Staff Regulations that a disciplinary decision downgrading an official automatically takes precedence over a subsequent promotion decision where the addressee of both decisions is the same official and that promotion is, by its very nature, a legal measure to which no prior or subsequent condition may be attached and which may not be limited in time. The Commission should therefore have considered, when reconstructing the applicant’s career, that he had been classified in grade AD 10 since 1 January 2010. In addition, the applicant submits that, following the General Court’s annulment of the decision to remove him from post, and for the purposes of reinstating him and reconstructing his career, the Commission was also under an obligation to reopen the promotion procedure at the stage at which it had been suspended pursuant to the general provisions for implementing Article 45 of the Staff Regulations. Lastly, according to the applicant, for the purposes of reconstructing his career in a fair and rigorous manner and in good faith, the Commission was bound, pursuant to the principle of good administration, to analyse in detail all the relevant information making it possible to reach a reasoned decision with regard to the grade in which he should have been reinstated. Not only did the Commission fail to do that, but it did not even hear the applicant before taking its decision.

| 4. | Fourth plea in law, alleging a breach of the principles of equal opportunities and of equal treatment between officials and of the principle of entitlement to reasonable career prospects. The applicant submits that the principle of entitlement to reasonable career prospects which is a particular expression of the principle of equal treatment applied to officials has been infringed in so far as the administration overlooked, during the period from 1 January 2010 to 1 May 2019, both that principle of entitlement to reasonable career prospects and Article 5(5) of the Staff Regulations read in conjunction with the provisions of Annex I(B) to the Staff Regulations and the provisions under the Staff Regulations relating to the promotion of officials, which establish that the applicant could have been promoted to grade AD 11 by 1 January 2014 and then to grade AD 12 by 1 January 2018. Those same considerations also lead to the conclusion that there has been an infringement of the principles of equal opportunities and of equal treatment between officials because the applicant was not treated in the same way as other officials. |
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4.

Fourth plea in law, alleging a breach of the principles of equal opportunities and of equal treatment between officials and of the principle of entitlement to reasonable career prospects. The applicant submits that the principle of entitlement to reasonable career prospects which is a particular expression of the principle of equal treatment applied to officials has been infringed in so far as the administration overlooked, during the period from 1 January 2010 to 1 May 2019, both that principle of entitlement to reasonable career prospects and Article 5(5) of the Staff Regulations read in conjunction with the provisions of Annex I(B) to the Staff Regulations and the provisions under the Staff Regulations relating to the promotion of officials, which establish that the applicant could have been promoted to grade AD 11 by 1 January 2014 and then to grade AD 12 by 1 January 2018. Those same considerations also lead to the conclusion that there has been an infringement of the principles of equal opportunities and of equal treatment between officials because the applicant was not treated in the same way as other officials.

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