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

(Second Chamber)

10 September 2009

Case F-9/08

Eckehard Rosenbaum

v

Commission of the European Communities

(Civil service – Officials – Appointment – Grading – Request for reclassification – Scope of Article 13 of Annex XIII to the Staff Regulations – Account taken of professional experience – Recruitment in the grade of the competition – Article 31 of the Staff Regulations – Principle of non-discrimination – Free movement of workers)

Application: brought under Articles 236 EC and 152 EA, in which Mr Rosenbaum seeks, in particular, annulment of the Commission’s decision of 13 February 2007 classifying him in Grade AD 6, step 2.

Held: The action is dismissed. The applicant is ordered to bear his own costs and to pay those of the Commission. The Council of the European Union, intervener for the Commission, is ordered to bear its own costs.

Summary

1. Officials – Actions – Purpose – Direction to the administration – Inadmissibility

(Art. 233 EC; Staff Regulations, Art. 91)

2. Officials – Staff Regulations – Regulation amending the Staff Regulations – Transitional provisions towards the new career structure

(Staff Regulations, Annex XIII, Arts 12(2) and 13)

3. Actions for annulment – Pleas in law – Invalid plea in law – Definition

1. It is not for the Civil Service Tribunal to issue directions to a Community institution or to make statements or findings of principle, regardless of the general obligation set out in Article 233 EC that an institution which adopted an annulled act must take the necessary measures to comply with the judgment annulling that act.

(see para. 21)

See:

T-76/03 Meister v OHIM [2004] ECR-SC I‑A‑325 and II‑1477, para. 38

F-55/05 Voigt v Commission [2006] ECR-SC I‑A‑1‑15 and II‑A‑1‑51, paras 23 and 25

2. There is no provision in Annex XIII to the Staff Regulations which provides that that annex in its entirety no longer applies after 30 April 2006. It is only the application of certain specific provisions of that annex which is limited to the period between 1 May 2004 and 30 April 2006. In the absence of any indication to that effect concerning Article 13 of Annex XIII to the Staff Regulations, that article should not be regarded as included among those specific provisions and as applicable only during that period, even taking account of Article 12(2) of that annex.

(see paras 31-32)

3. Where a plea in law, even if well founded, is not such as to entail the annulment of the contested measure, that plea must be regarded as invalid.

(see para. 41)

See:

C-46/98 P EFMA v Council [2000] ECR I-7079, paras 37 and 38
JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 April 2011

Case F-29/09 REV

Giorgio Lebedef and Trevor Jones

v

European Commission

(Civil service — Revision of a judgment — New fact — None — Inadmissibility)

Application: whereby Mr Lebedef and Mr Jones seek revision of the judgment of the Tribunal of 30 September 2010 in Case F-29/09 Lebedef and Jones v Commission.

Held: The application for revision is dismissed as manifestly inadmissible. The applicants are ordered to pay the costs. The Council of the European Union, intervener in support of the form of order sought by the Commission, is ordered to bear its own costs.

Summary

1. Procedure — Revision of a judgment — Conditions for the admissibility of the application for revision — New fact — Concept

(Statute of the Court of Justice, Art. 44)

2. Procedure — Revision of a judgment — Conditions for the admissibility of the application for revision — New fact — Burden of proof

(Statute of the Court of Justice, Art. 44, first para.; Rules of Procedure of the Civil Service Tribunal, Art. 19(2))

1. Under the first paragraph of Article 44 of the Statute of the Court of Justice, an application for revision must be based on the discovery of one or more facts predating delivery of the judgment in issue, but which were unknown to the Tribunal and to the party claiming the revision, and which are of such a nature as to be a decisive factor on the content of the judgment. Under the second paragraph of that article, it is only where the Court finds that a new fact exists, recognises that it is of such a character as to lay the case open to revision and declares the application admissible on that ground that it can examine the substance of the case.

(see para. 22)

2. In an application for revision of a judgment of the Civil Service Tribunal, under the first paragraph of Article 44 of the Statute of the Court of Justice and Article 119(2) of the Rules of Procedure of the Civil Service Tribunal, it is for the applicant for revision to establish that it did not discover the facts, which arose before delivery of the judgment and which, in the applicant’s submission, justify revision of the judgment, until after the judgment was delivered.

(see para. 24)
50

The applicant argues that the legal basis of the contested decision is flawed. In this connection, he maintains that the facts of his case are fundamentally different from those which gave rise to the judgment of 14 February 2007 in Case F‑1/06 Fernández Ortiz v Commission. First, the Staff Regulations of Officials of the European Union requires a decision of the appointing authority to establish an official after successful completion of the probationary period, whereas the ECB’s Staff Rules do not contain any provision to that effect. Consequently, the appointment of a member of staff is confirmed when the line manager informs the person concerned that he has successfully completed the probationary period. In the applicant’s case, this was done on 8 March 2011. Secondly, the Probationary Record Report indicates that the applicant’s performance was satisfactory, whereas in the case which gave rise to Fernández Ortiz v Commission, the performance was assessed as unsatisfactory. Thirdly, the aforementioned case concerned an official whereas the present case concerns a member of staff employed on a fixed term, fourteen-month non-convertible contract. It follows, the applicant also submits, that, since he did not receive, before the end of the probationary period, any decision, whether that be a decision to extend that period or even a decision to terminate his contract, he could legitimately believe that his appointment was confirmed.
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 December 2013

Alvaro Sesma Merino

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

‛Civil service — Officials — Staff report — Objectives for 2011/2012 — Act not having an adverse effect — Action inadmissible’

Application:

under Article 270 TFEU, in which Mr Sesma Merino seeks annulment of the objectives set for him by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) for the period from 1 October 2011 to 30 September 2012, and an order for OHIM to pay him compensation of an appropriate amount, at the discretion of the Tribunal, for the material and non-material damage he suffered.

Held:

The action is dismissed. Mr Sesma Merino is to bear his own costs is ordered to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

Summary

Actions brought by officials — Act adversely affecting an official — Definition — Preparatory act — Formal setting of objectives for the coming year at the time a staff report is drawn up — Not included

(Staff Regulations, Art. 90(2))

The decision establishing a staff report in its final version constitutes an act having an adverse effect where the official or staff member being appraised considers that his report is unlawful as a result of unjustified unfavourable assessments. Such a decision may affect the administrative status and career of the official or staff member concerned in so far as it is capable of exerting a negative influence on his future career prospects. Consequently, the person concerned must be placed in a position in which he may effectively make known his views on the evidence against him which is taken as the basis for the decision in question.

However, the setting of objectives for the coming year constitutes a vital element in the assessment of the official’s or staff member’s performance the following year and in the drawing up of his staff report in relation to those objectives. Accordingly, in the context of an assessment of merits, it is not until his staff report for the period in respect of which the objectives were set is drawn up that the decision setting those objectives is capable of producing legal effects such as to affect the interests of the official or staff member concerned, by bringing about a distinct change in his legal position, since it is only at that time that the administration can adopt its final position on whether the objectives assigned for that period have been achieved and draw any inferences from that as regards making an assessment of the applicant’s performance in his staff report.

It follows that objective-setting is only a preparatory measure prior to, and necessary for, the final decision adopted during the following appraisal exercise.

(see paras 24-26, 31)

See:

12 July 2005, T‑157/04 De Bry v Commission, para. 81

10 November 2009, F‑71/08 N v Parliament, para. 51
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

5 November 2013

Peter Schönberger

v

Court of Auditors of the European Union

‛Civil service — Officials — Promotion — 2011 promotion procedure — Reference multiplier rates’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Schönberger requests the Tribunal to annul the decision by which the Court of Auditors of the European Union refused to promote him in the 2011 promotion procedure.

Held:

The action is dismissed. Mr Schönberger is to bear his own costs and is ordered to pay the costs incurred by the Court of Auditors of the European Union.

Summary

Officials — Promotion — Number of posts for each grade and function group — Reference multiplier rates for average career equivalences — Grades AD 12, AD 13 and AST 10 for the period from 1 May 2004 to 30 April 2011 — Application on a five-year basis

(Staff Regulations, Art. 6(2); Annexes I, section B, and XIII, Art. 9)

Article 9 of Annex XIII to the Staff Regulations must be read in the light of the broad logic of the promotion system, which, while pursuing the aim of ensuring the equivalence of average career profiles between the new and old career structures, seeks to allow each institution, on a periodic basis, a certain leeway in applying the multiplier rates.

Moreover, although Article 9 of Annex XIII to the Staff Regulations derogates from Annex I, section B, to the Staff Regulations by laying down, for grades AD 13, AD 12 and AST 10 and for the period from 1 May 2004 to 30 April 2011, different rates from those given in that annex, it does not contain any provision suggesting that an exception should also be made to the rule laid down in Article 6(2) of the Staff Regulations that the multiplier rates must be applied on a five-year basis.

(see paras 43-44)
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

18 December 2015

Carlo De Nicola

v

European Investment Bank (EIB)

‛Civil service — EIB staff — Appraisal — New 2007 appraisal report — Unlawfulness of the decision of the Appeals Committee — Refusal to promote an official — No need to adjudicate’

Application:

under Article 270 TFEU, in which Mr De Nicola seeks, in particular, first, annulment of the decision of the Appeals Committee (‘the Appeals Committee’) of the European Investment Bank (EIB or ‘the Bank’) of 15 February 2012 rejecting his internal appeal against the new appraisal of his performance for 2007, that new appraisal having arisen from the annulment of his appraisal report for 2007 and the annulment of the decision refusing to promote him by the judgment of 8 March 2011 in De Nicola v EIB (F‑59/09, EU:F:2011:19, partly annulled on appeal by the judgment of 16 September 2013 in De Nicola v EIB, T‑264/11 P, EU:T:2013:461), secondly, annulment of the new 2007 appraisal report and of all ‘connected, consequent and prior acts’, thirdly, annulment of the promotion decisions of 29 April 2008 relating to the 2007 appraisal procedure, and, fourthly, an order that the Bank reconstitute his career and pay him damages for the material and non-material harm which he considers he has suffered.

Held:

The decision of the Appeals Committee of the European Investment Bank of 15 February 2012 is annulled. There is no need to rule on the pleas seeking the annulment of the new appraisal report for 2007. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay the costs incurred by Mr De Nicola.

Summary

Officials — Staff of the European Investment Bank — Reports procedure — Appraisal report — Challenge before the Appeals Committee of the EIB — Scope of the Appeals Committee’s review (Staff Regulations of the European Investment Bank, Art. 22) Actions brought by officials — Staff of the European Investment Bank — Judgment annulling a measure — Effects — Obligation to implement — Judgment annulling a decision of the Appeals Committee on an appraisal report — Obligation for the EIB to re-submit to the Committee the challenge brought by the person who lodged the internal appeal (Art. 266 TFEU)
16

The Belgian Law on security classification, security clearance, security certificates and security advisory notices of 11 December 1998 (Moniteur belge of 7 May 1999, p. 15752), as amended by the Law of 3 May 2005 (Moniteur Belge of 27 May 2005, p. 24993; ‘the Law on security clearance’), provides: ‘… Article 12. The present law shall apply where the possession of security clearance is required in the interests of: the protection of Belgian territorial integrity or military defence plans; the completion of missions by the armed forces; the internal security of the State, including in the field of nuclear energy, the continuity of the democratic and constitutional order; the external security of the State and international relations; the scientific or economic potential of the country or any other fundamental interest of the State; the safety of Belgian nationals abroad; or the functioning of the decision-making bodies of the State; or under treaties that are binding on Belgium, on the authority having the power to regulate access to a post, function or grade; to information, documents or data; to classified hardware, materials or substances; to premises, buildings or sites; or having power to arrange for the award and performance of private or public contracts. … Article 22. On completion of security screening, the national security authority shall, by reasoned decision, within the time-limit set by the King, decide whether to grant security clearance as requested, on the basis of the screening report submitted to it by the intelligence and security service which carried it out. If it considers it appropriate to examine the screening report, the security authority shall request that service to send it a complete copy of the file on the screening. It may also request that service to send any further information it considers appropriate for examination of the screening report. The decision shall be notified through the security officer to the natural or legal person for whom the clearance is requested, within the time-limit set by the King. …’
47

The contested decision is worded as follows: ‘… During our meeting on 17 February 2011 [sic], I confirmed the findings of both [the final report on insubordination regarding] your alleged non-compliance with the obligations detailed in Article 21 and 21a of the Staff Regulations … and [the final report of the inquiry into the allegations of harassment]. You were offered the opportunity to comment either orally, during the meeting, or subsequently, in writing, but no comments were received from you within the deadline set. With regards to the first matter, I made it clear to you during our meeting on 10 December 2011 [sic] that I expected you to carry out the instructions of your line manager. It is clear to me from [the final report on insubordination] and also from subsequent behaviour which has been brought to my attention, that you have consistently failed in your obligations to the [ECDC] in this regard. Turning to the second matter, an investigation was carried out following your allegations of psychological harassment and no evidence of psychological harassment against you could be found. Having read both [inquiry] reports, it is clear to me that you have significant difficulty in accepting management decisions, [that you] have repeatedly refused to perform tasks and [that you] have behaved in an obstructive and provocative manner. I can only conclude that this severe conflict has been initiated and sustained by you to the detriment of the [ECDC]. Your behaviour is not compatible with [its] values … and your sustained refusal to perform to the standards required negates the possibility of a normal working relationship. I have therefore come to the conclusion that the necessary relationship of trust between you and I, as Director …, and with other staff members has been irreparably damaged. I therefore regret to inform you that your employment with ECDC will be terminated according to Article 47 of the [CEOS]. Following the notice period of two months, your last day of employment will be 30 April 2012. In accordance with Article 47(b)(ii) of [the] CEOS you will receive compensation equal to one third of your basic salary for the period between the date when your duties end and the date when your contract expires. Today will be your last day working in the office ... . You will be assigned work to be performed from home by your line manager and this will include the preparation of a handover file. ...’
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

9 April 2014

Case F‑59/13

Thierry Rouffaud

v

European External Action Service (EEAS)

(Civil service — Auxiliary member of contract staff — Reclassification of contract — Pre-litigation procedure — Rule that the complaint must be consistent with the action — Amendment of the legal basis of the heads of claim)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Rouffaud seeks, in particular, annulment of the decision of the European External Action Service (EEAS) of 6 August 2012 rejecting his application to have his period of service completed as an auxiliary member of the contract staff recognised as a period of service completed as a member of the contract staff and to have his successive fixed-term employment contracts reclassified as a contract of indefinite duration.

Held: The action is dismissed. Mr Rouffaud is to bear his own costs and is ordered to pay the costs incurred by the European External Action Service.

Summary

Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and legal basis — Similar statement of submissions and factual and legal arguments showing that the official’s purpose has changed — Inadmissibility

(Staff Regulations, Arts 90(1) and 91(2))

The rule of consistency between the prior administrative complaint and the action stems from Article 91(2) of the Staff Regulations. That rule is justified by the very aim of the pre-litigation procedure, which is to permit an amicable settlement of the differences which have arisen between officials and the administration. It implies in particular that, without prejudice to pleas of inadmissibility and grounds involving questions of public policy, claims for relief in an action may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Union judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

Where the pleas in law in the application are similar to the arguments in the complaint, they may not be regarded as being closely linked to them if the differences basically reflect a change in the official’s purpose.

Furthermore, the different view expressed by the official in his complaint might also result in that complaint being reclassified as a fresh request within the meaning of Article 90(1) of the Staff Regulations. However, in that situation, if the second request is rejected, a new complaint would be needed before an action could be brought.

(see paras 12, 15, 16)

See:

25 October 2013, T‑476/11 P Commission v Moschonaki, para. 73 and the case-law cited therein
7

Article 5 (‘Procedure’) of the guidelines states: ‘In order to have a harmonised approach for all decisions on renewal of contracts, such decisions should be taken and notified to the staff member concerned within the time limits for the notice period stated above … The [HR department] will send a specific “Renewal of Contract” form to the Head of Division/Unit, around one month prior to the date of the notice period. The Head of Division/Unit will formulate in the form his/her recommendation about the renewal of the contract. The recommendation shall take into account the previously established performance appraisal reports of the jobholder, and the suitability of the [his or her] competences with the function as it can be expected to evolve in the following years. The [HR department] will ensure that the Head of Division/Unit will have access to all appraisal reports of the jobholder. … The [HR department] will hand over a copy of the document for the jobholder’s information and optional comments. The jobholder will be given the opportunity to add his/her comments, by the deadline specified, which should give reasonable time for the jobholder to respond. …