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

(First Chamber)

20 November 2012

Case F‑10/11

Dorina Maria Ghiba

v

European Commission

(Civil service — Internal competition — Non-admission to participate in a competition — Eligibility conditions — Concept of services attached to the Commission)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Ghiba seeks annulment of the decision of the selection board for internal competition COM/INT/EU2/AST 3 to reject her candidature on the ground that she did not meet certain eligibility requirements.

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

Summary

Officials — Competitions — Internal competitions — Conditions for admission — Membership of the staff of the Commission or of a service attached to the Commission — Candidate who is a member of the staff of an executive agency — Not included

(Art. 308 EC; Council Regulation No 58/2003, recital 19 and Arts 9(1) and (5), 11(6), and 18)

An executive agency, such as the Research Executive Agency (REA), cannot be considered to be a service attached to the Commission. Accordingly, a candidate for an internal competition within the Commission cannot be regarded, in her capacity as a member of the contract staff of the REA, as belonging to the staff of the Commission or of services attached to the Commission.

The power of the Commission to set up and organise its services does not extend to executive agencies. It is true that the competence to establish executive agencies as separate legal entities was conferred on it by the EU legislature on the basis of Article 308 EC. However, Article 9(1) of Regulation No 58/2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes provides that the steering committee of the executive agency is to adopt its own rules of procedure. Although the Commission provides and organises its services, it is for the steering committee of the executive agency, according to Article 9(5), to decide on the organisation of the departments of the executive agency.

In that regard, recital 19 to Regulation No 58/2003 draws a clear distinction between, on the one hand, Commission departments and, on the other hand, executive agencies. Also, as regards the staff of an executive agency, it is clear from Article 11(6) of that regulation that the director of the executive agency is empowered under the arrangements applicable to other servants of the European Union to conclude employment contracts in respect of staff of the executive agency. Lastly, it is clear from Article 18 of that regulation that the executive agency’s staff consists, inter alia, of temporary staff members and other staff members directly recruited by the agency.

(see paras 34, 36-40, 43-44)

See:

21 October 2010, T‑439/08 Agapiou Joséphidès v Commission and EACEA, paras 35 and 43
A decision of the administration, adopted as a measure to comply with an annulling judgment, which merely informs the candidate concerned of its decision to reopen the competition procedure vis-à-vis him and to constitute a selection board composed in accordance with the principles laid down in the annulling judgment, and which does not compel the candidate to sit the new tests, may not be regarded as producing binding legal effects that directly and immediately affect his interests and therefore does not constitute an act adversely affecting him.

Where the decision of a selection board not to include a candidate on a reserve list is annulled, the annulling judgment is regarded as properly complied with if an equitable solution is found.

In the case of an open competition organised in order to draw up a recruitment reserve and the tests of which have been vitiated, the rights of a candidate who has unlawfully been eliminated are adequately protected if the appointing authority reopens the competition vis-à-vis that candidate.

Even if it is true that reopening the competition procedure is not capable of fully remedying the defect found in the annulling judgment or of ensuring that the principle of equal treatment is fully observed, it is capable of allowing adequate compliance with the annulling judgment, since it constitutes the only solution capable of offering a candidate who has unlawfully been eliminated, in the competition, a fresh chance of being appointed as an official. It is clear from Article 28(d) of the Staff Regulations that no-one may be appointed as an official if he has not, in particular, passed a competition.

(see paras 36-37, 39, 42- 43)

14 July 1983, 144/82 Detti v Court of Justice, para. 33; 6 July 1993, C‑242/90 P Commission v Albani and Others, para. 13

25 May 2000, T‑173/99 Elkaïm and Mazuel v Commission, para. 23

13 December 2012, F‑42/11 Honnefelder v Commission, para. 49
Staff case summary



Staff case summary

Summary

1. Actions brought by officials — Action brought against a decision not to admit the applicant to the tests in a competition — Possibility of relying on the unlawfulness of the organisation of the competition

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

2. Officials — Competitions — Organisation of an open competition — Impossibility for the candidate to change the type of keyboard at the preliminary test — Breach of the principle of equal treatment — None

(Staff Regulations, Arts 1d and 27, first para.)

1. In the light of the complex nature of the recruitment procedure, which is composed of a series of very closely-linked decisions, an applicant is entitled to rely on irregularities occurring in the course of a competition in an action against a subsequent individual decision, such as a decision not to admit him to the assessment tests.

(see para. 15)

See:

21 March 2013, F‑93/11 Taghani v Commission , para. 38

2. The principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. Consequently, a breach of the principle of equal treatment, applicable to the law relating to the employment of European Union officials, occurs when two categories of person employed by the European Union whose factual and legal circumstances disclose no essential difference are treated differently and that difference in treatment is not objectively justified.

The fact that a candidate in an open competition to constitute a reserve pool of Bulgarian-language lawyer-linguists used a phonetic keyboard rather than a BDS keyboard prior to the competition and that he did not familiarise himself with the BDS keyboard, even though he was told that it would be used for the tests, is a circumstance particular to the candidate which cannot constitute a difference capable of resulting in a breach of the principle of equal treatment.

In view of the selection board’s wide discretion in deciding on the content and arrangements for the tests in a competition, the identical treatment of all the candidates and the use by all of the BDS keyboard alone are justified by the nature and purpose of the competition, which was a specialised competition to select a number of highly skilled lawyer-linguists for the Court of Justice, where all Bulgarian lawyer-linguists use the standard BDS keyboard.

(see paras 26, 31, 35-36)

See:

16 December 2008, C‑127/07 Arcelor Atlantique et Lorraine and Others , para. 23

5 April 2005, T‑376/03 Hendrickx v Council , para. 33

25 February 2010, F‑91/08 Pleijte v Commission , para. 36; 28 March 2012, F‑19/10 Marsili v Commission , para. 20 and the case-law cited therein
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 December 2013

Vilija Balionyte-Merle

v

European Commission

‛Civil service — Open competition — Notice of competition EPSO/AD/204/10 — Failure to include the applicant on the reserve list — Assessment of candidates’ general competencies — Assessment on the basis of performance in tests at the assessment centre — Consistency between the mark obtained and comments appearing in the competency passport’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Balionyte-Merle seeks annulment of the decision of the selection board of competition EPSO/AD/204/10 (‘the selection board’) not to include her on the reserve list of that competition.

Held:

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

Summary

Acts of the institutions — Presumption of validity — Presence of evidence capable of calling into question the legality of the measure — Burden of proof (Art. 256 TFEU) Officials — Competitions — Assessment of candidates’ abilities — Selection Board’s discretion — Taking into consideration factors other than the performance of the candidates — Not included (Staff Regulations, Annex III, Art. 5) Officials — Competitions — Assessment of candidates’ abilities — Selection Board’s discretion — Consistency between the mark and the written assessments of the selection board — Judicial review — Limits (Staff Regulations, Annex III, Art. 5) Officials — Decision adversely affecting an official — Obligation to state reasons — Scope — Inadequate statement of reasons — Rectification in the course of the judicial proceedings — Conditions (Art. 296 TFEU)
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 March 2015

DO

v

European Securities and Markets Authority (ESMA)

‛Civil service — ESMA staff — Temporary staff — Non-renewal of contract — Staff report — Delay in drawing up staff report — Inconsistency of general and specific assessments’

Application:

under Article 270 TFEU, in which DO asks the Tribunal (i) to annul the decision of the European Securities and Markets Authority (ESMA) of 13 August 2013 not to renew her temporary contract, which expired on 15 February 2014, and to annul her staff reports for the years 2011 and 2012, and (ii) to order ESMA to pay compensation for the non-material damage which she claims to have suffered.

Held:

The action is dismissed. DO is to bear her own costs and is ordered to pay the costs incurred by the European Securities and Markets Authority.

Summary

Officials — Reports procedure — Staff report — Judicial review — Limits

(Staff Regulations, Art. 43)

It is not for the EU judicature, save in the case of factual errors, manifest error of assessment or misuse of powers, to review the merits of the assessment made by the administration of the professional abilities of an official where it involves complex value judgments which, by their very nature, are not amenable to objective verification.

In particular, it is not for the Civil Service Tribunal to substitute its appraisal for that of the persons responsible for assessing the person under appraisal, as the administration has a wide discretion when assessing the work of its officials.

(see para. 64)

See:

Judgment in Cwik v Commission, T‑96/04, EU:T:2005:376, para. 41 and the case‑law cited therein

Judgment in Nastvogel v Council, F‑4/10, EU:F:2011:134, para. 32
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

17 December 2015

T

v

European Commission

‛Civil service — Social security — Occupational disease — Article 73 of the Staff Regulations — Application for recognition of the occupational origin of a disease — Causal link — Claim for damages for the non-material harm suffered as a result of the time taken by the institution to acknowledge the occupational origin of the disease — Obligation to adjudicate within a reasonable time — Non-material damage’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which T seeks, first, annulment of the decision of the European Commission of 8 August 2014, confirming the decision of 3 February 2014 granting only part of her claim for damages for non-material harm arising from the failure to act within a reasonable time in the procedure for recognition of an occupational disease initiated under Article 73 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and, second, compensation for the non-material harm she considers she has suffered.

Held:

The European Commission is ordered to pay T the amount of EUR 5000. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay those incurred by T.

Summary

Officials — Social security — Insurance against the risk of accident and of occupational disease — Medical Committee — Obligation to act within a reasonable time — Infringement — Ascribable to the administration — Exception (Charter of Fundamental Rights of the European Union, Art. 41(1); Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease) Officials — Non-contractual liability of the institutions — Conditions — Damage — Causal link — Non-material harm arising from the institution’s failure to act within a reasonable time in a procedure for recognition of the occupational origin of a disease — Existence of that harm or of a causal link able to be inferred from the circumstances and nature of the institution’s error (Art. 340 TFEU)
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 October 2015

FT

v

European Securities and Markets Authority (ESMA)

‛Civil service — Member of the temporary staff — Accounting officer — Non-renewal of a fixed-term contract — Competent authority — Manifest error of assessment — Burden of proof — Rule of correspondence between the application and the complaint’

Application:

under Article 270 TFEU, by which FT seeks, essentially, annulment of the decision of 28 June 2013 of the Executive Director of the European Securities and Markets Authority (ESMA) not to renew her fixed-term temporary contract, which expired on 31 December 2013.

Held:

The action is dismissed. FT is to bear her own costs and is ordered to pay the costs incurred by the European Securities and Markets Authority.

Summary

Officials — Members of the contract staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Judicial review — Limits — Manifest error of assessment — Meaning

(Conditions of Employment of Other Servants, Arts 47(b) and 119)

A member of the contract staff with a contract of fixed duration does not in principle have any right to have his contract renewed, such renewal being a mere possibility, subject to the condition that renewal is in keeping with the interest of the service. In this connection, the administration has a broad discretion with regard to the renewal of a contract. When the Tribunal has before it an action for annulment directed against an act adopted in the exercise of that discretion, it must restrict itself to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, the administration remained within unimpeachable limits and did not manifestly misuse its power.

An error may be classified as manifest only where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent.

(see paras 72-74)

See:

Judgments of 11 July 2012 in AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraphs 152 and 153 and the case-law cited therein, and 19 February 2013 in BB v Commission, F‑17/11, EU:F:2013:14, paragraph 57 and the case-law cited therein.
It is clear from the wording of the second paragraph of Article 52 of the Staff Regulations that the appointing authority may grant authorisation to carry on working beyond the age of automatic retirement to officials who request to do so where it considers it justified in the interests of the service.

Therefore, without there being any need even to refer to the purpose of that provision, the literal interpretation of the second paragraph of Article 52 of the Staff Regulations goes against the argument that authorisation to remain in active service until the age of 67 should be granted to any official who has requested to do so, provided the interests of the service does not preclude this.

Moreover, it is true that, according to the second paragraph of Article 52 of the Staff Regulations, the decision to allow an official to remain in active service between the ages of 67 and 70 may be taken ‘exceptionally’, although that qualifier is not present in respect of remaining in active service until the age of 67. However, the addition of that qualifier in respect of authorisation to remain in active service beyond the age of 67 does not justify the interpretation that, in order for a staff member to remain in active service until the age of 67, the administration need not establish the existence of interests of the service at that time. That term merely indicates that the number of officials authorised to remain in service beyond the age of 67 must be limited in order to respect the exceptional nature of that derogation, without affecting the scope of the examination of the interests of the service which must, in any event, be carried out by the appointing authority.

(see paras 33-35)

Judgment of 7 October 2009 in Pappas v Commission, F‑101/08, EU:F:2009:137, paras 62 to 64
Where a measure of an institution or agency is annulled by the judicature, it is for the institution or agency, pursuant to Article 266 TFEU, to take the appropriate measures to comply with the judgment. In order to comply with the judgment annulling the measure and to implement it fully, the institution responsible for the annulled measure is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the provision held to be illegal and, on the other, indicate the reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. As regards the effects of the annulment of a measure by the judicature, it operates ex tunc and therefore has the effect of retroactively eliminating the annulled measure from the legal order. The defendant institution is therefore required, pursuant to Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities found to exist, which, in the case of a measure which has already been implemented, involves restoring the applicant’s legal position to what it was prior to that measure.

An institution responsible for a measure which has been annulled cannot rely on practical difficulties in order to avoid its obligation to eliminate the illegality committed. If the implementation of a judgment annulling a measure presents particular difficulties, the institution concerned may satisfy the obligation arising from Article 266 TFEU by taking such decisions as will provide due compensation for the damage which the person concerned has suffered as a result of the decision which has been annulled.

(see paras 59, 71)

See:

Judgment of 8 October 1992 in Meskens v Parliament, T‑84/91, EU:T:1992:103, para. 78

Judgments of 15 April 2010 in Angelidis v Parliament, F‑104/08, EU:F:2010:23, paras 35 and 36 and the case-law cited therein; 13 September 2011 in AA v Commission, F‑101/09, EU:F:2011:133, para. 81, and 21 March 2013 in Brune v Commission, F‑94/11, EU:F:2013:41, para. 59
35

By letter of 19 August 2014, FN lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the contested decision, claiming that his place of employment could not be unilaterally amended by CEPOL without financial compensation, given that that place of employment was listed in his employment contract as Bramshill and that it had to be regarded as an essential condition of that employment contract. FN considered, in particular, that the situation of an agency, such as CEPOL, having only one place of employment could not be compared with that of an institution, such as the Commission or the Parliament, having several places of employment to which officials and members of staff may be assigned. Accordingly, the case-law resulting from the judgment in Aubineau (EU:T:1996:104), cited by the supervising director in his letter of 16 May 2014, would not be applicable in the present case, with the result that the unilateral amendment of FN’s place of employment had to be regarded as an abnormal and unforeseeable event. FN also claimed that there had been an infringement of the principle of legitimate expectations in the light of the clear and specific assurances he had been given regarding the fact that he would work at Bramshill for the entirety of the duration of his contract. In addition, he criticised the brevity of the one-month period which he had been given to inform CEPOL whether he was joining the new seat in Budapest and the fact that the contested decision offered him resignation without financial compensation as the sole alternative to relocating to Budapest.