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

(First Chamber)

25 September 2012

Case F‑51/10

Moises Bermejo Garde

v

European Economic and Social Committee (EESC)

(Civil service — Officials — Recruitment — Notice of vacancy — Act adversely affecting an official — Interest in bringing proceedings — Language requirements — Authority competent to adopt a vacancy notice — Bureau of the EESC)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Bermejo Garde seeks annulment of a vacancy notice published by the EESC.

Held: The vacancy notice is annulled. The action is dismissed as to the remainder. The EESC is to bear its own costs and those incurred by the applicant.

Summary

1. Actions brought by officials — Act adversely affecting an official — Vacancy notice — Conditions excluding officials eligible for transfer or promotion — Admissibility

(Staff Regulations, Arts 29, 90 and 91)

2. Actions for annulment — Interest in bringing proceedings — Action seeking to avoid recurrence in the future of unlawfulness in an act of an EU institution — Admissibility

(Art. 263 TFEU)

3. Officials — Vacancy notice — Adoption of a new vacancy notice containing significant differences as compared with the first vacancy notice — Competent authority

(Staff Regulations, Art. 29)

1. Where an official is eligible to fill, by transfer or promotion, a post referred to in a vacancy notice, that notice constitutes an act adversely affecting that official if the conditions it lays down have the effect of excluding his candidature.

(see para. 36)

See:

19 June 1975, 79/74 Küster v Parliament, para. 6; 11 May 1978, 25/77 De Roubaix v Commission, para. 8

18 May 2006, F‑13/05 Corvoisier and Others v ECB, para. 42; 9 July 2009, F‑91/07 Torijano Montero v Council, para. 27

2. An applicant may retain an interest in seeking the annulment of an act of an EU institution in order to prevent its alleged unlawfulness recurring in the future.

(see para. 50)

See:

7 June 2007, C‑362/05 P Wunenburger v Commission, para. 50 et seq

3. Under Rule 72(1), second indent, of the Rules of Procedure of the European Economic and Social Committee (EESC), the powers which the Staff Regulations confer on the appointing authority are to be exercised, with respect to officials in grades 16, 15 and 14 of function group AD, by the Bureau of the EESC as regards application, inter alia, of Article 29 of the Staff Regulations.

Accordingly, a new vacancy notice to fill the post of Director of the Directorate for General Affairs of the EESC, according to the procedure laid down in Article 29(1) and (2) of the Staff Regulations, at grade AD 14, which was significantly different from the first vacancy notice as regards the necessary qualifications, requires a new decision of the Bureau, in pursuance of Rule 72 of the Rules of Procedure.

In those circumstances, by signing such a new vacancy notice without the Bureau having first adopted a new decision to that end, the President of the EESC exceeded his powers, thus entailing annulment of the new vacancy notice.

(see paras 60-61, 65, 68-71)
34

The applicant states that he is unconvinced by the explanation provided by the appointing authority, in its decision rejecting the complaint, that the reference to the date of 15 April 2010 is due to a computer processing error and was not noticed by the chairman of the selection board when that chairman filled in and signed, on 9 July 2010, the evaluation sheets for the candidates’ oral tests. Firstly, according to the applicant, the final evaluation sheet for the oral test is set out in such a way that it would be impossible to sign it without noticing its date. Secondly, the computer error alleged, in the ‘mail merge’ function, could not in itself explain why, on 9 July 2010, the chairman of the selection board signed 129 oral test evaluation sheets, nevertheless dated April, May and June 2010. Thirdly, no explanation has been given as regards the reason for that computer error and the date on which it occurred. Fourthly, neither the EPSO departments, nor the selection board, nor the appointing authority have submitted evidence in support of their contentions. Fifthly, certain passages of the decision rejecting the complaint contradict the argument that the placing of the signature of the chairman of the selection board next to the date of the document is the result of a computer error. Lastly, the applicant disputes the relevance of the case-law cited in the decision rejecting the complaint. In his view, it is for the Commission departments to prove, beyond all doubt, that the breaches of procedure he has alleged did not affect the results of the oral test in the competition concerned.
Staff case summary



Staff case summary

Summary

Actions brought by officials — Act adversely affecting an official — Definition — Vacancy notice not affecting the applicant’s legal position — Not included

(Staff Regulations, Art. 90)

Any measure the legal effects of which are binding on and capable of affecting the interests of the applicant directly and immediately, by bringing about a distinct change in his legal position, is an act adversely affecting an official which may be the subject of an action under Article 91 of the Staff Regulations.

In an action against a vacancy notice which opens a recruitment procedure for a second time and does not have the effect of excluding the applicant’s candidature, the effects which the applicant attributes to that vacancy notice — that it makes it impossible in practice for him to be appointed to the contested post pursuant to any judgment of the Civil Service Tribunal annulling decisions taken at the end of a first recruitment procedure to appoint a third person to the contested post and to reject his candidature — are, on the date when the vacancy notice is published, purely hypothetical and are therefore not such as to prove that the notice affects his interests directly and immediately.

At the end of the second recruitment procedure, the appointing authority is not necessarily obliged to fill the contested post. Also, there is no reason to think, on the date when the contested vacancy notice is published, that, if the second recruitment procedure is completed, the applicant will not be appointed to the contested post. As for the effects of the judgment to be issued in the case for annulment of the decisions taken at the end of the first recruitment procedure, those decisions are presumed to be legal, and the mere fact of having brought proceedings does not give the applicant any subjective right to be appointed to the contested post, or the right to paralyse any possible administrative initiative to fill that post. Moreover, if the Civil Service Tribunal were to annul the decisions taken at the end of the first recruitment procedure, it would then be for the institution concerned to take appropriate measures to comply with the judgment, and the applicant could challenge those measures in due course, if necessary.

Consequently, the contested vacancy notice and the second recruitment procedure do not, as such, produce any binding legal effects capable of affecting the interests of the applicant directly and immediately. The contested vacancy notice does not, therefore, adversely affect the applicant merely by its publication.

(see paras 20-26)

See:

11 May 1978, 25/77 De Roubaix v Commission , paras 7 and 8

18 May 2006, F‑13/05 Corvoisier and Others v ECB , para. 44; 9 July 2009, F‑91/07 Torijano Montero v Council , paras 24 and 27 and the case-law cited therein
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

21 January 2014

Ewelina Jelenkowska-Luca

v

European Commission

‛Civil service — Officials — Remuneration — Expatriation allowance — Conditions set out in Article 4(1)(b) of Annex VII to the Staff Regulations — Nationals of the State in whose territory their place of employment is situated — Habitual residence’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Jelenkowska-Luca seeks annulment of the decision of 11 July 2012 by which the European Commission dismissed her complaint lodged on 25 March 2012 against the decision not to grant her the expatriation allowance with effect from 1 March 2012.

Held:

The action is dismissed. Ms Jelenkowska-Luca is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Remuneration — Expatriation allowance — Conditions for granting — Burden of proof borne by the official (Staff Regulations, Annex VII, Art. 4(1)(b)) Officials — Remuneration — Expatriation allowance — Conditions for granting — Habitual residence outside the Member State of employment during the reference period — Concept of habitual residence — Circumstances giving rise to a presumption of habitual residence in the place of employment (Staff Regulations, Annex VII, Art. 4(1)(b))
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

3 December 2013

CT

v

Education, Audiovisual and Culture Executive Agency (EACEA)

‛Civil service — Temporary staff — Contract for an indefinite period — Termination — Adverse reflection on position — Breakdown in the relationship of trust’

Application:

under Article 270 TFEU, in which CT seeks, inter alia, annulment of the decision of the Education, Audiovisual and Culture Executive Agency (EACEA) of 24 July 2012 terminating his temporary contract for an indefinite period, and compensation for the damage suffered.

Held:

The action is dismissed. CT is to bear his own costs and is ordered to pay the costs incurred by the Education, Audiovisual and Culture Executive Agency.

Summary

Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Justification based on breakdown in the relationship of trust — Judicial review — Limits (Conditions of Employment of Other Servants, Art. 47) Officials — Rights and obligations — Duty of loyalty — Definition — Scope (Staff Regulations, Art. 12; Conditions of Employment of Other Servants, Art. 11) Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Administration’s discretion — Obligation to initiate a disciplinary procedure — None (Conditions of Employment of Other Servants, Arts 47(c), 49 to 50a)
As regards an action brought by a member of staff of the European Central Bank containing claims directed against a decision rejecting his special appeal, those claims need not be examined independently since their only effect is to bring before the judicature the acts adversely affecting the applicant against which the application for pre-litigation review was submitted.

As regards additional salary advancements awarded to members of staff of the European Central Bank whose performance has been assessed as outstanding for two of the three years preceding the decision to award the advancement, in so far as Article 2(3) of Administrative Circular No 1/2011 on Additional Salary Advancements places a staff representative in a discriminatory position because it is absolutely impossible for him to demonstrate a second year of outstanding performance as a result of his full-time activity as a staff representative during the three years in question, that provision is unlawful. In that regard, it cannot reasonably be claimed that the exercise by the person concerned of his right to dispensations from service in order to carry out his duties within the Staff Committee is his personal choice. The choice of being able to claim dispensations from service in order to carry out a term of office as a staff representative is a fundamental right, as is clear from Articles 27 and 28 of the Charter of Fundamental Rights of the European Union.

Moreover, the exercise of the fundamental right to equal treatment, enshrined by Articles 20 and 21 of the Charter, may not be restricted by rules which place staff representatives in an unfavourable and discriminatory position compared with other staff members, where those limitations are unnecessary and do not serve an objective in the public interest or the need to protect the rights and freedoms of others.

Since the situation of a staff representative and that of a staff member are factually different, they may not be treated in the same way, and they may therefore only have applied to them eligibility conditions for the additional salary advancement which take account of the differences in status between staff members and staff representatives, allowing the latter, like any other staff member, to demonstrate a second year of outstanding performance out of a period of three years, even where they choose to carry out duties in the Staff Committee full-time and for more than a year.

(see paras 59-62, 68)

Judgment of 14 September 2010 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paras 54 and 55 and the case-law cited therein

Judgment of 2 December 2014 in Migliore v Commission, F‑110/13, EU:F:2014:257, para. 40
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

10 December 2015

Arnulf Jäger-Waldau

v

European Commission

‛Civil service — Officials — Appraisal — Appraisal report — Request for amendment — Refusal’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Jäger-Waldau seeks, essentially, the annulment of his appraisal report in respect of the period from 1 January to 31 December 2013 in so far as it contains a sentence he contests.

Held:

The action is dismissed. Mr Jäger-Waldau shall bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Reports procedure — Appraisal report — Drawing up — Dialogue with the reporting officer — Official’s interview shorter in duration than those of his colleagues — Infringement of principle of non-discrimination — None

(Staff Regulations, Art. 43)

In relation to the drawing up of an official’s appraisal report, the content and, accordingly, the duration of an interview with the reporting officer may vary in accordance with the difficulties of each case to be examined. In that respect, the length of the interview of an official whose professional performance is assessed relatively positively by his superiors will not be comparable to the length of the interview of an official whose performance raises a number of issues. Accordingly, the fact that an official’s interview is shorter than those of his colleagues cannot, in itself, demonstrate the existence of any discrimination against that official.

(see paras 29, 30)

See:

Judgment of 30 November 2005 in Vanlangendonck v Commission, T‑361/03, EU:T:2005:433, paragraph 39 and the case-law cited therein
In the case of refusal to extend unpaid leave for a further year, the fourth paragraph of Article 52 of the Conditions of Employment of Other Servants of the European Union establishes a mechanism designed to protect both a staff member’s right to be reinstated within the agency with which he concluded a contract of employment for an indefinite period and the agency’s interest in benefiting from the services of the staff members to whom it has offered such a contract or, if the staff member decides not to return to the agency, in engaging another member of staff in his place. The obligation on the agency to offer the staff member concerned, within a reasonable period, a post corresponding to his grade and functions involves a concomitant duty on the staff member to return to the agency and accept such a post or to incur the consequences of his refusal.

It follows that, even if the staff member is able to demonstrate the existence of compelling personal grounds that justify the granting of renewal of unpaid leave, in the same way as the granting of the initial unpaid leave, such renewal may be granted only if the leave sought is compatible with the interest of the service. If that is not the case, the agency is required to refuse the application for unpaid leave, or for renewal of such leave, which, according to the first paragraph of Article 17 of the Conditions of Employment, may be granted only in exceptional circumstances and, unlike the provision made for granting an official leave on personal grounds, or renewing such leave, only where there are compelling personal grounds. In those circumstances, in order for the agency to be able to refuse renewal it is by no means necessary for it to demonstrate an urgent need in the form of a vacant post which can only be filled by reinstating the staff member on leave.

Similarly, the limitation of any period of unpaid leave to one year shows that the agency is required to evaluate the interest of the service when assessing each application for renewal and that even if the grounds which had justified granting the initial unpaid leave have remained strictly the same, the interest of the service may have changed in the meantime in a way that is favourable or unfavourable to continuing the unpaid leave of the staff member concerned.

Lastly, it is necessary to apply with regard to applications for unpaid leave the case law under which, when the institutions are presented with an application for leave on personal grounds, they enjoy a very extensive power of appraisal with regard both to the validity of the grounds advanced by the official wishing to be granted such leave and the compatibility of granting the leave with the interests of the service.

It follows that it is perfectly permissible for an agency to decide not to renew unpaid leave on grounds of requirements relating to its internal organisation, without being required to demonstrate the existence of a current and pressing need.

(see paras 51-55)

See:

Judgment of 16 December 1976 in Mascetti v Commission, 2/76, EU:C:1976:187, para. 5
Staff case summary



Staff case summary

Summary

Officials – Actions – Unlimited jurisdiction – Annulment of the decision to dismiss a member of the temporary staff

(Staff Regulations, Art. 91(1))
ORDER OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

2 July 2007

Case F-117/05

Carlos Sanchez Ferriz

v

Commission of the European Communities

(Civil service – Officials – Promotion – Failure to include on the list of officials promoted – 2004 promotion procedure – Priority points – Merit – Seniority – Admissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Sanchez Ferriz seeks, principally, annulment of the Commission’s decision of 30 November 2004 drawing up the list of officials promoted in the 2004 promotion procedure, in so far as that list does not include his name, and, in the alternative, annulment of the decision allocating priority points under that year’s procedure.

Held: The action is dismissed in part as manifestly inadmissible and in part as manifestly unfounded. The parties are to bear their own costs.

Summary

Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 90 and 91)

An official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of a measure, only such claims as relate to him personally. An action brought by an official seeking annulment of the list of officials promoted to the higher grade in a promotion procedure because that list does not contain the applicant’s name is therefore inadmissible where the applicant has not shown why he has a personal interest in bringing the action, and has merely relied on the unlawfulness of certain categories of promotion points, without providing in his written submissions any specific information about his personal situation with regard to the promotion year in question, such as, in particular, the number of promotion points that he received in those categories. Such a finding cannot be called into question by the fact that the number of those promotion points is apparent from documents attached to the defence, since it is for the applicant to establish, in his written submissions, that he has an interest in bringing proceedings and, if appropriate, to refer to the corresponding evidence provided in an annex.

(see paras 31-32)

See:

85/82 Schloh v Council [1983] ECR 2105, para. 14

T-436/04 Sanchez Ferriz v Commission [2006] ECR-SC I‑A‑2‑273 and II‑A‑2‑1423, para. 35; judgment of 23 November 2006 in T-422/04 Lavagnoli v Commission, not published in the ECR
Staff case summary



Staff case summary

Summary

Officials – Actions – Amicable settlement of the dispute before the Civil Service Tribunal – Removal from the register

(Rules of Procedure of the Court of First Instance, Arts 87(5), second para., and 98, first para.)
ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE CIVIL SERVICE TRIBUNAL

27 June 2007

Case F-127/06

H

v

Council of the European Union

(Amicable settlement on the initiative of the Tribunal – Removal from the register)

Application: brought under Articles 236 EC and 152 EA, in which H seeks annulment of the Council’s decision of 15 March 2006 automatically to retire her on the grounds of invalidity.

Held: Case F‑127/06 H v Council is removed from the register of the Tribunal. H is to bear one third of her own costs. The Council is to bear its own costs and two thirds of H’s costs.

Summary

Officials – Actions – Amicable settlement of the dispute before the Civil Service Tribunal – Removal from the register

(Rules of Procedure of the Court of First Instance, Arts 87(5), second para., and 98, first para.)
ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

1 February 2007

Case F-140/06 AJ

Bruno Sibilli

v

Commission of the European Communities

(Legal aid)

Application: in which Mr Sibilli seeks legal aid under Article 94 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to the Civil Service Tribunal pursuant to Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), until the entry into force of its rules of procedure.

Held: The application for legal aid is rejected.

Summary

Procedure – Application for legal aid – Conditions for granting

(Rules of Procedure of the Court of First Instance, Arts 94(3) and 96(1); Council Decision 2004/752, Art. 3(4))
ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE

CIVIL SERVICE TRIBUNAL

4 September 2008

Case F-81/06

Tineke Duyster

v

Commission of the European Communities

(Amicable settlement at the initiative of the Tribunal – Removal from the register)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Duyster seeks, in particular, annulment of the decision of 11 May 2006 rejecting her complaint against the Commission’s decision of 8 November 2005 rejecting her claim for compensation for harm resulting from irregularities committed in connection with the granting of parental leave.

Held: Case F‑81/06 Duyster v Commission is removed from the register of the Tribunal. The Commission undertakes to pay the applicant the fixed sum of EUR 2 000. The Commission undertakes to sign, to place in the applicant’s personal file and to communicate to her the letter it had prepared for her, in the version as amended following the Tribunal’s proposals in its letter of 12 June 2008. The Commission is to bear its own costs and to pay EUR 1 000 of the applicant’s costs.

Summary

Officials – Actions – Amicable settlement of the dispute before the Civil Service Tribunal – Removal from the register

(Rules of Procedure of the Civil Service Tribunal, Arts 69 and 74)