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

(First Chamber)

28 October 2010

Case F-77/08

Isabel Vicente Carbajosa and Others

v

European Commission

(Civil service — Open competitions EPSO/AD/116/08 and EPSO/AD/117/08 in the field of fraud prevention — Exclusion of candidates in consequence of their results in the admission tests — Decision of the appointing authority — Failure to lodge a complaint — Inadmissibility of the action)

Application: brought under Articles 236 EC and 152 EA, in which Ms Vicente Carbajosa and five other officials/members of the temporary staff at the Commission seek annulment of the individual decisions of the European Personnel Selection Office (EPSO) of 5 June 2008 not to admit them to the tests in open competitions EPSO/AD/116/08 and EPSO/AD/117/08 respectively.

Held: The action is dismissed as inadmissible. The applicants are to bear their own costs and to pay those incurred by the Commission. The Kingdom of Spain, intervener for the applicants, is to bear its own costs.

Summary

1. Officials — Actions — Prior administrative complaint — Absence — Inadmissibility — Exceptions

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

2. European Personnel Selection Office (EPSO) — Powers conferred on the appointing authority under Article 90 of the Staff Regulations

(Decision 2002/621 of the Secretaries-General of the European Parliament, the Council, the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee, the Committee of the Regions, and the Representative of the European Ombudsman, Art. 4(1))

1. Under Article 91(2) of the Staff Regulations, an appeal before the Courts of the Union is admissible only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations against the act adversely affecting the official concerned.

Except where the action is directed against a measure not of the appointing authority itself, such as a decision of a selection board in a competition or a staff report, failure to lodge a prior complaint within the required time-limit renders the action inadmissible.

(see paras 27-28)

See:

317/85 Pomar v Commission [1987] ECR 2467, paras 11 and 13

T-133/89 Burban v Parliament [1990] ECR II-245, para. 17; T-1/91 Della Pietra v Commission [1992] ECR II-2145, para. 23

F-120/06 Dálnoky v Commission [2007] ECR-SC I-A-1-269 and II-A-1-1517, para. 35; F-106/05 T v Commission [2008] ECR-SC I-A-1-419 and II-A-1-2315, para. 84

2. It follows from Article 4(1) of Decision 2002/621 on the organisation and operation of the European Personnel Selection Office (EPSO) that the Head of the Office exercises the powers conferred on the appointing authority under Article 90 of the Staff Regulations in respect of all requests or complaints relating to the tasks of the Office, which may include, pursuant to a notice of competition, the organisation of the admission tests for all candidates and the marking of those tests.

(see para. 44)
JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

9 June 2009

Case F-12/08

Thierry Nardin

v

European Parliament

(Civil service – Officials – Remuneration – Expatriation allowance – Refusal to grant – Condition laid down in Article 4(1)(a) of Annex VII to the Staff Regulations – Application for annulment – Unlawfulness of the recruitment procedure – Ineffectiveness – Claim for damages)

Application: brought under Articles 236 EC and 152 EA, in which Mr Nardin essentially seeks, first, annulment of the Parliament’s decision of 2 April 2007 fixing his rights on taking up his appointment and refusing to grant him the expatriation allowance, and, second, an order that the Parliament pay the expatriation allowance from April 2007 together with the sum of EUR 10 000 to make good the non-material damage allegedly suffered.

Held: The action is dismissed. The applicant and the Parliament are to bear their own costs. The Commission of the European Communities, which intervened in support of the Parliament, is to bear its own costs.

Summary

1. Officials – Remuneration – Expatriation allowance – Purpose – Conditions for granting – No habitual residence or main occupation at the place of employment prior to taking up appointment – Concept

(Staff Regulations, Annex VII, Art. 4(1)(a))

2. Officials – Actions – Pleas in law – Plea based on the unlawfulness of the official’s recruitment procedure

1. The fundamental reason for the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations is to compensate officials for the extra expense and inconvenience of taking up permanent employment in a country with which the official had no permanent ties prior to taking up his appointment. Where it is required, for a finding that such ties existed, that the official in question must have habitually worked in the country of his future employment with the Communities for the whole of a given period, that means that professional services provided in other countries involving sporadic and brief absences during that period are not sufficient to deprive the official’s exercise of his main occupation in his State of employment of its habitual nature.

(see paras 32-33)

See:

188/83 Witte v Parliament [1984] ECR 3465, para. 11

T-72/94 Diamantaras v Commission [1995] ECR-SC I‑A‑285 and II‑865, para. 51 and the case-law cited therein

2. An official cannot rely on the unlawfulness of the procedure for his recruitment by a Community institution to apply for the annulment of the decision by that institution fixing his rights on taking up his appointment and refusing him the expatriation allowance, given that there is no adequate causal link between the official’s recruitment procedure and the contested decision. Illegalities vitiating the recruitment procedure might support claims for annulment of a recruitment decision; however, the question of the lawfulness of a decision fixing an official’s rights on taking up his appointment is separate from the lawfulness of the procedure by which the official concerned was recruited by that institution.

(see para. 39)
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

20 November 2012

Case F‑1/11

Zdenek Soukup

v

European Commission

(Civil service — Open competition — Non-inclusion on the reserve list — Evaluation of the oral test)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Soukup seeks, first, annulment (i) of the decision of the selection board of competition EPSO/AD/144/09 not to enter him on the reserve list for the competition, (ii) of the decision of the same selection board to enter another candidate on that list, (iii) of ‘all the operations carried out by the selection board as from the stage at which the irregularities complained of occurred’ and, secondly, an order for the Commission to pay the sum of EUR 25 000 by way of compensation for the damage allegedly suffered.

Held: The action is dismissed. The applicant is to bear his own costs and those incurred by the Commission.

Summary

1. Officials — Acts of the administration — Presumption of validity — Contention — Burden of proof — Obligation to provide evidence to challenge the legality of the act

2. Officials — Competitions — Principle of the impartiality of the selection board — Acquaintanceship between a member of a selection board and a candidate

(Staff Regulations, Art. 11a)

1. An administrative act is presumed to be lawful and the burden of proof lies, in principle, with the person claiming it to be unlawful, so that it is for the applicant to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of his claim.

Consequently, in the case of a competition, a person concerned who has provided neither evidence nor even a body of indicia must accept that decisions adopted by the selection board are presumed to be lawful, and he cannot expect the Tribunal itself to examine the candidatures of the successful candidates in order to ascertain whether some successful candidates were unlawfully admitted to the competition.

(see para. 34)

See:

4 February 2010, F‑15/08 Wiame v Commission, para. 21

2. An acquaintanceship between a member of a selection board and a candidate is not in itself sufficient to prove that that member has a personal interest, within the meaning of Article 11a of the Staff Regulations, capable of calling his impartiality into question. The fact that a member of the selection board is personally acquainted with one of the candidates does not necessarily mean that that member will be prejudiced in favour of that candidate’s performance. Furthermore, since an oral test cannot, by its very nature, be anonymous, the fact that one or more candidates work for the same institution as that from which one or two members of the selection board come is not in itself a circumstance that could give the selection board any information that it was not entitled to know.

(see para. 38)

See:

30 April 2008, F‑16/07 Dragoman v Commission, para. 44
9

On the first page of the notice of competition, it was stated that the open competitions in questions were competitions on the basis of qualifications and tests. An explanation was then given regarding the conditions to be fulfilled by candidates to be admitted to the competition that they had chosen and to sit the assessment tests, in order to be included on the reserve list. Point 2 of section IV of the notice of competition described the procedure as follows: ‘Invitation to the assessment centre: Selection on the basis of qualifications To identify candidates who can be admitted to the assessment centre, the selection board will select candidates on the basis of their qualifications after having established the criteria by which it will assess those qualifications. Candidates will be selected on the basis of the information given in their on-line applications forms. The selection board will select those candidates who satisfy the eligibility conditions and who possess the qualifications (especially diplomas and professional experience) that are most relevant in terms of quality and level to the nature of the duties described in the competition notice … Selection will be on the basis of the following marking scheme: (a) each selection criterion is weighted between 1 and 3, according to how important the board considers it to be; (b) the selection board will give a mark of between 1 and 4 for each criterion, depending on the candidate’s qualifications. It will then draw up a list … of candidates in the order of the marks awarded. The number of candidates admitted to the assessment centre will be approximately three times the number of successful candidates indicated in the competition notice and will be published on EPSO’s website …’
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

15 July 2014

Case F‑160/12

Bernat Montagut Viladot

v

European Commission

(Civil service — Competitions — Notice of competition EPSO/AD/206/11 (AD 5) — Non-inclusion on the reserve list — Conditions of admission of candidates — Recognition of diplomas)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Montagut Viladot challenges the refusal of the selection board in competition EPSO/AD/206/11 (AD 5) to include his name on the reserve list for that competition.

Held: The action is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Montagut Viladot.

Summary

1. Officials — Competitions — Competition based on qualifications and tests — University diploma or degree required — Meaning of ‘diploma or degree’ — Determination on the basis of the legislation of the Member State in which the studies took place

2. Officials — Principles — Protection of legitimate expectations — Assurance given by a selection board contrary to the applicable rules — Situation not creating legitimate expectation of inclusion on the reserve list

1. In the absence of any provision to the contrary contained either in a regulation or a directive applicable to recruitment competitions or in the notice of competition, the requirement of possession of a university diploma on which admission to an open competition depends is necessarily to be construed in the light of the definition of such a diploma given in the legislation of the Member State in which the candidate completed the studies on which he relies. The university diploma which a candidate must possess in order to take part in an open competition must be fully recognised under the legislation of the Member State in which it was awarded.

(see paras 30, 31)

See:

judgment in Jaenicke Cendoya v Commission, 108/88, EU:C:1989:325, para. 17

judgment in Alonso Morales v Commission, T‑299/97, EU:T:1999:314, para. 60

judgment in Zangerl-Posselt v Commission, F‑83/07, EU:F:2009:158, para. 51

2. Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Union administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules.

A note from a selection board in a competition based on qualifications and tests assuring a candidate that he satisfies all the admission conditions laid down in the competition notice may not be regarded as raising legitimate expectations in the mind of that candidate where such assurances are inconsistent with the applicable rules because the candidate’s diploma does not meet the requirements of that notice.

(see paras 47, 49)

See:

judgment in Neirinck v Commission, F‑84/05, EU:F:2007:33, para. 79
The purpose of Article 71 of the Staff Regulations, which provides that an official is entitled to reimbursement of expenses incurred by him inter alia on transfer, is to prevent him from having to bear on his own expenses incurred in connection with the performance of his duties.

It is in the light of that purpose that Article 10(1) of Annex VII to the Staff Regulations must be applied, which provides for a daily subsistence allowance to be granted to an official who furnishes evidence that a change in the place of residence is required in order to comply with Article 20 of the Staff Regulations, which requires him to reside either in the place where he is employed or at no greater distance therefrom than is compatible with the proper performance of his duties.

The daily subsistence allowance is granted subject to two conditions: first, a change in the place of residence must be required in order to comply with Article 20 of the Staff Regulations, and second, the allowance must cover the expense and inconvenience occasioned by the need to travel and establish a provisional residence at the place of employment. Since those two conditions are cumulative, the daily subsistence allowance cannot, in particular, be paid to an official who does not prove that he has been exposed to such expense or inconvenience.

However, the Union legislature has never made the grant of the daily subsistence allowance subject to the condition that the official concerned must prove that he has been obliged provisionally to maintain a residence in his place of origin or his previous place of employment which is also, provisionally, a source of expense. It would therefore be contrary to the fundamental principle of legal certainty as well as to the wording of Article 10(1) of Annex VII to the Staff Regulations for the institution to impose the additional condition of a ‘second’ expense in order for the officials concerned to qualify for the daily subsistence allowance.

Furthermore, if established officials are not to be automatically excluded from receiving the daily subsistence allowance, contrary to the Staff Regulations, it may not be considered that only persons linked to the institutions by a precarious employment relationship (probationary officials, temporary or contract staff, seconded national experts) might be regarded as having a provisional residence at the place of employment as long as no removal has taken place. What is decisive in that respect is not the precarious nature of the employment relationship, but the precarious accommodation situation of a person who is required, by the Staff Regulations, to reside in the place of employment where he is to perform his duties with a Union institution, body, office or agency. Precarious accommodation is a different concept from precarious employment. It must therefore be possible to regard an established official who changes his place of employment as establishing a provisional residence at that new place of employment.

(see paras 27-29, 39, 44)
34

As it is, the applicants have not adduced any evidence such as to prove that the lack of GIP led the appointing authority to apply Article 10 of Annex X to the Staff Regulations to them in an arbitrary manner. They merely assert, without any probative evidence in support of their claims, that the EEAS ‘arbitrarily consider[ed] … [that] living conditions [in the countries in which they were employed were equivalent]’ to those normally obtaining within the European Union and submit that they ‘do not have to prove that the provisions [in question] are unclear and imprecise’. In particular, the fact that the appointing authority did not use the parameters set out in the fourth subparagraph of Article 10(1) of Annex X to the Staff Regulations to determine the amount of the ALC for each place of employment is not sufficient to prove that the appointing authority ‘arbitrarily list[ed] the places of employment where living conditions can be deemed equivalent to those normally observed in the [European] Union’. It is indeed apparent from the file that, far from not having been ‘guided by [any] criteria’, the appointing authority fixed appropriate criteria to guide its assessment as to the equivalence of living conditions. The appointing authority thus, in the contested decision, described the method used, indicating that the annual procedure for review of the ALC included an analysis of the living conditions prevailing in the places of employment, seeking to ascertain whether they [were] or remain[ed] equivalent to those normally obtaining in the European Union, adding that, where appropriate, based on that review the appointing authority would decide that no [ALC should] be granted’, and specifying in addition that ‘it was necessary to take into account the analyses made by the competent departments of the European Union, the gradings of the United Nations “Hardship allowance” system and other information available to the departments’. The criteria used by the appointing authority were also mentioned both in the EEAS’s statement in defence and the replies to the applicants’ complaints, and it is not disputed that those criteria were taken into account in the assessment of the applicants’ individual situations. While the applicants assert that the method thus set out is insufficiently precise, they do not demonstrate in what way it is inadequate nor, in any event, that that lack of precision would have led the appointing authority to treat them arbitrarily in relation to staff members employed in other places.
63

In particular, the standard operating procedure could not be finalised before the adoption of Commission Implementing Regulation (EU) No 520/2012 of 19 June 2012 on the performance of pharmacovigilance activities provided for in Regulation (EC) No 726/2004 of the European Parliament and of the Council and Directive 2001/83/EC of the European Parliament and of the Council (OJ 2012 L 159, p. 5), the text of which had only been circulated in the applicant’s unit on 18 July 2012. Furthermore, the applicant claims that, on 24 May 2012, he had agreed with his reporting officer that he would submit the final draft of the standard operating procedure before the end of June 2012, which he did on 27 June 2012. However, after the distribution of the draft, the applicant realised that some changes would be required, notwithstanding the Guideline on Good Pharmacovigilance Practices, which raised issues and contained contradictions that his reporting officer refused to discuss with him and clarify. Furthermore, the applicant indicated in his application, giving further details during the hearing, that, on 13 September 2012, Mr A, in consultation with the integrated quality management and risk management coordinator for the Patient Health Protection Unit, had decided that the standard operating procedure was redundant and that it had to be merged with another standard operating procedure. Moreover, the applicant observes that it is apparent from the Agency’s electronic document management system that a flow chart, which is an integral part of the standard operating procedure at issue, was saved at his initiative in March 2012 and that, despite several requests made by him, no discussion at the level of the signal detection group took place between September 2011 and June 2012. Finally, the applicant claims that he extensively modified the standard operating procedure between 25 June and 23 August 2012.
Articles 86 to 89 of the Staff Regulations do not lay down any fixed relationship between the disciplinary measures referred to and the different types of infringement committed by officials, nor do they specify to what extent the existence of aggravating or mitigating circumstances comes into play in the choice of measure and the determination of whether it is proportionate.

In order to assess whether a disciplinary measure is proportionate to the seriousness of the offence found to have been committed, the Union judicature must first consider the fact that the measure is to be determined on the basis of an overall assessment by the appointing authority of all the concrete facts and matters appertaining to each individual case. Consequently, the examination by the court of first instance is limited to the question whether the weight attached by the appointing authority to any aggravating or mitigating circumstances is proportionate, and in that examination it cannot substitute its own assessment for the value-judgments made by the appointing authority in that regard.

In particular, as regards the measure of removal from post, the most serious of those listed in Article 9 of Annex IX to the Staff Regulations, its adoption necessarily entails a careful consideration on the part of the institution in view of the especially serious consequences arising from it, both for the official concerned and for the institution. In any event, the legality of any disciplinary measure presupposes that it has been established that the person concerned actually committed the offence alleged against him.

(see paras 35-37)

Judgment in Tzikis v Commission, T‑203/98, EU:T:2000:130, paras 48-51

Judgment in BG v European Ombudsman, T‑406/12 P, EU:T:2014:273, para. 64

Judgment in EH v Commission, F‑42/14, EU:F:2014:250, para. 93