JUDGMENT OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 July 2016

AV

v

European Commission

‛Civil service — Member of the temporary staff — Appointment — Pre-recruitment medical examination — Incomplete declarations at the medical examination — Deferment of medical cover — Retroactive application of medical cover deferment — Not eligible for the invalidity allowance — Annulment — Enforcement of a judgment of the Tribunal’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AV seeks the annulment of the decision of the European Commission of 16 September 2014 to defer his medical cover as provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union and not to grant him the invalidity allowance.

Held:

The decision of 16 September 2014, by which the European Commission deferred AV’s medical cover as provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union, is annulled. The European Commission is to pay AV the sum of EUR 2000 in compensation for the non-material harm suffered by him. The remainder of the action is dismissed. The European Commission is to bear its own costs and to pay the costs incurred by AV.

Summary

EU law — Principles — Duty to act within a reasonable time — Infringement in an administrative procedure — Passage of time likely to affect the content of a decision — Consequences in the context of medical cover deferment under Article 32 of the Conditions of Employment

(Charter of Fundamental Rights of the European Union, Art. 41(1); Conditions of Employment, Art. 32)

Compliance with the reasonable time requirement in the conduct of administrative procedures constitutes a general principle of Union law whose observance the Courts of the Union ensure and which is laid down as a component of the right to good administration by Article 41(1) of the Charter of Fundamental Rights of the European Union.

However, infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken as the culmination of an administrative procedure. It is only where the passing of an excessive period is likely to affect the content itself of the decision adopted as the culmination of the administrative procedure that failure to observe the reasonable time principle affects the validity of the administrative procedure.

Article 32 of the Conditions of Employment provides an assumption that the authority empowered to conclude contracts of employment will take a final decision on whether or not medical cover should be deferred on the basis of information obtained by the medical officer at the time of the pre-recruitment medical examination or upon receipt of any relevant additional information that significantly amends the information obtained at the time of the pre-recruitment medical examination.

In the present case, the length of the procedure may have had an impact on the content of the decision to apply medical cover deferment to the person concerned retrospectively, because three years and seven months had passed not only since the authority empowered to conclude contracts of employment had become aware of that person’s illness but also since the invalidity committee had established that the person concerned was in a state of total permanent invalidity making it impossible for him to perform his duties. Thus, the decision to defer medical cover under Article 32 of the Conditions of Employment, given the prospect that invalidity might have occurred within five years following awareness of the illness in question, was altered to a decision to exclude the person concerned, with immediate effect, from receiving invalidity benefits in respect of invalidity that had already occurred.

Thus, the decision to defer medical cover for the person concerned and not to grant him the invalidity allowance must be annulled. The fact that an earlier decision having the same content as the contested decision was annulled because of a breach of procedure does not deprive the person concerned of the possibility of raising, in the context of the judgment enforcing the annulment judgment, a substantive plea that was raised in the action that gave rise to the annulment judgment. The person concerned did indeed raise in that case a plea alleging infringement of the principle of legal certainty.

(see paras 44, 45, 50, 51, 54-55)

See:

Judgment of 12 May 2016 in Guittet v Commission, F‑92/15, EU:F:2016:118, paras 75 and 76 and the case law cited