ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

1 March 2007

Case F-84/05

Wineke Neirinck

v

Commission of the European Communities

(Officials – Temporary staff – Admissibility – Request within the meaning of Article 90(1) of the Staff Regulations – Principle of the protection of legitimate expectations – Alleged promise to recruit)

Application: brought under Articles 236 EC and 152 EA, in which Ms Neirinck seeks annulment of the implied decision rejecting her claim for damages and, so far as may be necessary, of the express decision rejecting her complaint, together with award of damages for the material and non-material loss sustained by her following the Commission’s breach of its alleged promise to recruit her to the Investigatory and Disciplinary Office.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

Officials – Principles – Protection of legitimate expectations

The fact that the head of a department has had contact with a candidate for a post as a member of the temporary staff in order to explore the possibility of including her in his team, and that he expressed his desire that she would be so included, does not create a legitimate expectation on the part of the candidate that she will be recruited, where the administration has issued no document setting out a genuine promise of recruitment, but, on the contrary, the person concerned has been informed by other officials with responsibility for recruitment of doubts concerning such a possibility.

(see paras 81-85)
Staff case summary



Staff case summary

Summary

Officials – Recruitment – Application of Article 29(2) of the Staff Regulations

(Staff Regulations, Art. 29(2); Annex XIII, Art. 5(5); Council Regulation No 723/2004)

In the absence of any transitional provision in Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, in order to determine the classification in grade and step of an official appointed to a higher post after that regulation came into force on 1 May 2004, as the result of a recruitment procedure launched before that date pursuant to Article 29(2) of the Staff Regulations, it is appropriate to be guided by the solution adopted by the Community legislature in Article 5(5) of Annex XIII to the Staff Regulations for appointments to the post of director through promotion, and to place the official in the ‘next higher grade’.

The recruitment procedure opened pursuant to Article 29(2) of the Staff Regulations can, when it benefits an official or a member of the temporary staff in active employment, be treated as a promotion. In such a case, appointment to a higher post cannot be considered to be a second recruitment to the institution with the effect of interrupting the career of the person concerned, but must be regarded as an advance in his career, and it cannot result in his demotion in grade or step and, consequently, in a decrease in his salary, without there being a breach of the principle that every official has the right to reasonable career prospects within his institution, as set out in the Staff Regulations. Such a solution is all the more necessary since it is in accordance with the administration’s duty to have regard for the welfare of officials, which in particular implies that when the relevant authority takes a decision concerning the position of an official, it should take into consideration all the factors capable of affecting its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned, since an official appointed to a higher post in recognition of his personal merits has a legitimate interest, provided it is not contrary to the rules of the Staff Regulations in force, in not having his remuneration reduced.

(see paras 63, 75-76, 79-80)

See:

20/83 and 21/83 Vlachos v Court of Justice [1984] ECR 4149, para. 23; C-298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38

T-133/89 Burban v Parliament [1990] ECR II‑245, para. 27; T‑114/98 and T‑115/98 Rodríguez Pérez and Others v Commission [1999] ECR-SC I‑A‑97 and II‑529, para. 32
Staff case summary



Staff case summary

Summary

Officials – Contract staff – Classification

(Staff Regulations, Art. 5(3)(b); Conditions of Employment of Other Servants, Art. 82(2))

For the purposes of the application of Article 7(1)(d) and 7(3) of the general implementing provisions on the procedures governing the engagement and the use of contract staff at the Commission, which provide that such staff must be classified according to the duration of the relevant professional experience calculated from the date on which the person concerned fulfils the minimum qualifications for engagement, the Commission cannot, without infringing the scope of Article 82(2)(c) of the Conditions of Employment of Other Servants, under which recruitment as a member of the contract staff in function group IV requires at least a level of education which corresponds to completed university studies of at least three years attested by a diploma, as clarified, by reason of their identical terms, by the provisions of Article 5(3)(b) of the Staff Regulations, which apply the same requirement for officials, refuse to take a diploma into account without beforehand examining the content of the course leading to that diploma and without considering whether that diploma can attest to completed university studies.

(see paras 41, 42)
JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

13 February 2007

Case F-62/06

Daniela Guarneri

v

Commission of the European Communities

(Officials – Remuneration – Family allowances – Dependent child allowance – Rule against overlapping allowances applicable to national allowances)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Guarneri seeks annulment, first, of the Commission’s decision of 5 August 2005 applying the rule against overlapping allowances laid down in Article 67(2) of the Staff Regulations to the deduction of the Belgian orphans’ pension from the dependent child allowance and, secondly, of the appointing authority’s decision of 14 February 2006 rejecting the applicant’s complaint against the contested decision.

Held: The Commission’s decision of 5 August 2005 is annulled in so far as it deducts the amount of the Belgian orphans’ pension received by Mrs Guarneri from the dependent child allowance paid to her. The remainder of the application is dismissed. The Commission is ordered to pay the costs. The Council is ordered to bear its own costs.

Summary

Officials – Remuneration – Family allowances – Dependent child allowance

(Staff Regulations, Art. 67(2))

Only allowances which are comparable and have the same purpose are of like nature for the purposes of the rule against overlapping laid down in Article 67(2) of the Staff Regulations concerning family allowances. The decisive criterion in classifying allowances as of like nature is the aim pursued by the allowances in question.

The Belgian orphans’ pension does not have the same aim as the dependent child allowance provided for in Article 67(1)(b) of the Staff Regulations. The Belgian pension is intended to compensate not for the normal costs associated with the maintenance and upbringing of children, but for the specific costs, for the surviving parent, resulting from the death of the other parent who, when alive, contributed to that maintenance and upbringing. The pension thus provides for the specific needs of orphaned children and constitutes financial assistance for the person who is left to bear the family responsibilities alone. The fact which can trigger its award is not the actual maintenance of a child, but a separate circumstance connected with the materialisation of a risk, that of the death of one of the child’s parents.

(see paras 34, 42, 45-46)

See:

106/76 Deboeck v Commission [1977] ECR 1623, para. 16; 14/77 Emer v Commission [1977] ECR 1683, para. 15

T-147/95 Pavan v Parliament [1996] ECR-SC I‑A‑291 and II‑861, para. 41; T‑33/04 Weißenfels v Parliament [2006] ECR-SC I-A-2-1 and II-A-2-1, para. 47
JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 December 2008

Case F-148/06

Laurent Collée

v

European Parliament

(Civil service – Officials – Promotion – Procedure for allocating merit points in the European Parliament – Examination of comparative merits)

Application: brought under Articles 236 EC and 152 EA, in which Mr Collée seeks annulment of the Parliament’s decision of 9 January 2006 allocating him two merit points under the 2004 promotion procedure.

Held: The Parliament’s decision of 9 January 2006 allocating Mr Collée two merit points under the 2004 promotion procedure is annulled. The remainder of the action is dismissed. The Parliament is ordered to pay the costs.

Summary

Officials – Promotion – Consideration of comparative merits – Procedures – Quantification of merits through the allocation of points

(Staff Regulations, Art. 45)

Where, in the procedure for allocating merit points, the administration has a limited number of points which it allocates to officials on the basis of a consideration of their comparative merits, that comparison must be undertaken on a basis of equality and the points must be allocated to the most deserving officials in descending order of merit, until the quota of points has been exhausted. Where it is found, in the consideration of comparative merits undertaken, that certain officials have equivalent merits, those officials must be allocated an identical number of merit points. Should there be an insufficient number of points, the choice between those officials must be made on the basis of secondary considerations. While the level of responsibilities may be a decisive factor in promotion, as provided for in Article 45 of the Staff Regulations, it is on condition that that level is assessed in a comparison between officials with the same merit, and not in a comparison of an official’s responsibilities from one year to the next.

Therefore, a decision to allocate only a certain number of merit points to an official solely on the ground that his merits are not greater than those of officials who obtained more points infringes the principle of equal treatment and contravenes Article 45 of the Staff Regulations, since the administration thereby demands that that official’s level of performance should not be equal to but greater than that of his colleagues.

(see paras 38-40, 45-47)

See:

T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, para. 93 in fine
Staff case summary



Staff case summary

Summary

Officials – Competitions – Selection board – Rejection of application – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.; Annex III, Art. 6)

Even though the outcome of reconciling the obligation to state reasons and observance of the principle of the secrecy of the selection board’s proceedings, in particular as to whether the communication of a single eliminatory individual mark to the candidate eliminated in the oral phase satisfies that obligation, is more often than not in favour of the principle of the secrecy of the selection board’s proceedings, the position may be otherwise when special circumstances exist, such as the fact that the candidate only narrowly failed the test, or that there existed intermediate marks which served in calculating the eliminatory mark, or, lastly, that it does not appear that communication of more detailed information than the individual eliminatory mark, without revealing the individual assessments of the members of the selection board or the numbers of marks awarded by each of them, could either represent a significant extra burden of work for the institution, given the technological means now available, or prove delicate.

Such communication, on the other hand, constitutes more than merely the initial elements of a statement of reasons which is susceptible of being supplemented by further information provided during the proceedings.

Although the Tribunal is indeed precluded from substituting its assessment for that of the members of the selection board, it must be in a position to ascertain, having regard to the obligation to state reasons, that they marked the applicant's performance on the basis of the assessment criteria set out in the notice of competition and that no errors occurred in the calculation of the mark; similarly, it must be in a position to carry out a limited review of the relationship between the assessments made by the members of the selection board and the numbers of marks awarded by them. For that purpose, it needs to order whatever measures of organisation of procedure seem appropriate to it, in the light of the particular circumstances, making it clear where appropriate to the defendant institution that the replies would be passed on to the person concerned only to the extent that this would be compatible with the principle of the secrecy of the selection board’s proceedings. Where the defendant institution refuses to produce, even to the Tribunal alone, the items of information requested by way of measures of organisation of procedure, it infringes its obligation to state reasons and does not allow the Tribunal to exercise properly its power of judicial review.

(see paras 40, 42-44, 46, 49-54)

See:

40/86 Kolivas v Commission [1987] ECR 2643, para. 11

F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-0000, paras 72, 79 and 80, currently the subject of an appeal pending before the Court of First Instance, Case T‑105/08 P; F-127/07 Coto Moreno v Commission [2008] ECR-SC I‑A‑0000, paras 34 and 36
Staff case summary



Staff case summary

Summary

1. Officials – Reimbursement of expenses – Installation allowance – Members of the temporary staff

(Staff Regulations, Annex VII, Art. 5(1); Conditions of Employment of Other Servants, Art. 24)

2. Officials – Reimbursement of expenses – Daily subsistence allowance – Conditions for granting – Probationary official who has received the installation allowance as a member of the temporary staff – Not included

(Staff Regulations, Art. 71; Annex VII, Arts 5 and 10; Conditions of Employment of Other Servants, Art. 24(1))

1. The Community legislature provides, in Article 24 of the Conditions of Employment of Other Servants, for members of the temporary staff to receive an installation allowance, on the assumption that, even without the security of tenure of an established official, temporary staff with an expected period of service of at least one year may wish to settle at their place of employment on a permanent and lasting basis. It is in order to cover the costs resulting from the effort made to settle that the installation allowance is paid to temporary staff, albeit only in part where the expected period of service is less than three years.

(see para. 20)

2. It is clear from a simple comparison of Articles 5 and 10 of Annex VII to the Staff Regulations that a person who has received the installation allowance as a member of the temporary staff under Article 24(1) of the Conditions of Employment of Other Servants may not subsequently claim the daily subsistence allowance when appointed as a probationary official, regardless of the change in his status under the Staff Regulations. In so far as the grant of the installation allowance is conditional on the person transferring his residence to his place of employment, he cannot reasonably claim subsequently, in order to obtain a further financial benefit such as the daily subsistence allowance, that he was only provisionally settled at his place of employment, and that his ‘real’ residence was in his country of origin.

Since, in order to obtain the installation allowance, the staff member concerned gave a declaration on his honour that his residence was located at his place of employment, and attached the relevant supporting documents to that declaration, the administration is entitled, for reasons relating to the relationship of trust that must exist between an institution and its officials, as well as for reasons of sound administration, not to review the question of the staff member’s residence when he applies for the grant of the daily subsistence allowance.

(see paras 27, 30)
JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

27 October 2009

Case F-61/07

Gerhard Bauch

v

Commission of the European Communities

(Civil service – Members of the temporary staff – Severance grant – Legal nature)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bauch seeks annulment of the Commission’s decision of 9 October 2006 rejecting his request for, in essence, amendment of the certificate issued to him concerning the severance grant which he received in 1994 as a result of the expiry of his contract as a member of the temporary staff.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials – Members of the temporary staff – Severance grant – Links with retirement pension rights

(Staff Regulations, Annex VIII, Arts 11(1) and 12)

2. Officials – Members of the temporary staff – Severance grant – Calculation

1. Although the severance grant does not, as such, have the nature of a retirement pension, it is clear from Article 12 of Annex VIII to the old Staff Regulations that the severance grant is intended for officials or other staff members who have acquired, as a result of monthly contributions deducted from their salary, the nucleus of a retirement pension entitlement, but who cannot either actually be paid a Community retirement pension because they have fewer than 10 years’ service, or benefit from the provisions of Article 11(1) of Annex VIII to the Staff Regulations in the version in force until 30 April 2004. Furthermore, a sum paid pursuant to Article 12(b) of Annex VIII to that version of the Staff Regulations, which constitutes one of the two components of the severance grant for temporary staff, is calculated on the basis of the amount of the sums deducted from the basic salary of those staff in respect of contributions for the constitution of their pension, plus compound interest at the rate of 3.5% per annum. It cannot therefore be accepted that the severance grant has no connection at all with retirement pension rights.

(see paras 51-56)

2. The mere fact that the severance grant is paid, by way of compensation, to staff who have acquired the nucleus of a retirement pension entitlement but cannot actually be paid a retirement pension does not necessarily mean that the amount of that grant must correspond to the actuarial equivalent of their nucleus of a retirement pension entitlement.

(see para. 60)
Staff case summary



Staff case summary

Summary

1. Officials – Competitions – Conditions for admission – Fixing by the competition notice – Administration's discretion

(Staff Regulations, Annex III)

2. Procedure – Application initiating proceedings – Formal requirements – Detailed statement of the pleas and arguments relied on before the Civil Service Tribunal

(Statute of the Court of Justice, Art. 21, first para., and Annex I, Art. 7(3); Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

1. Notwithstanding its discretion, the selection board is bound by the wording and in particular by the conditions for admission laid down by the notice of competition. The same applies, in principle, to the administration, which is thus obliged to comply with the conditions for admitting applications if it is not to infringe the principle of equal treatment.

(see para. 46)

See:

T-145/02 Petrich v Commission [2004] ECR-SC I‑A‑101 and II‑447, para. 34

F-12/05 Tas v Commission [2006] ECR-SC I‑A‑1‑79 and II‑A‑1‑285, para. 43

2. Under Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal the application must contain a statement of the pleas and arguments of fact and law on which it is based. Those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action, if appropriate without having to seek further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on are indicated coherently and intelligibly in the text of the application itself. That is a fortiori the case since, under Article 7(3) of Annex I to the Statute of the Court of Justice, the written stage of the procedure before the Tribunal comprises, in principle, only one exchange of written pleadings, unless the Tribunal decides otherwise. The latter specific feature of the procedure before the Civil Service Tribunal explains why, unlike proceedings before the Court of First Instance or the Court of Justice, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice, the statement of pleas and arguments in the application cannot be in summary form. Such flexibility would have the effect, in practice, of rendering redundant much of the subsequent special rule set out in the Annex to the Statute of the Court of Justice.

(see paras 49-50)

See:

T-85/92 De Hoe v Commission [1993] ECR II‑523, para. 20; T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, para. 42; T-277/97 Ismeri Europa v Court of Auditors [1999] ECR II‑1825, para. 29

F-1/08 Nijs v Court of Auditors [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 25, on appeal before the Court of First Instance, Case T‑376/08 P