ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

18 November 2014

Carlo De Nicola

v

European Investment Bank (EIB)

‛Civil service — Referral back to the Tribunal after setting aside — EIB staff — Annual appraisal — Internal rules — Appeals procedure — Right to be heard — Infringement by the Appeals Committee — Unlawful nature of the decision of the Appeals Committee — Psychological harassment — No need to adjudicate on the claim for damages’

Application:

under Article 270 TFEU, in which Mr De Nicola essentially sought, first, annulment of the decision of the Appeals Committee of the European Investment Bank (EIB) of 14 November 2008, secondly, annulment of the promotion decisions of 29 April 2008 and of the decision of the same date not to promote him, thirdly, annulment of his appraisal report for 2007, fourthly, establishment of the psychological harassment which he claimed to have suffered, and fifthly, an order that the EIB cease the harassment and pay compensation for the damage he claimed to have suffered as a result of that harassment.

Held:

The decision of the Appeals Committee of the European Investment Bank of 14 November 2008 is annulled. There is no need to adjudicate on the claim for damages for the harm alleged as a result of psychological harassment. The remainder of the action is dismissed. The European Investment Bank is to bear its own costs and is ordered to pay those incurred by Mr De Nicola in Cases F-59/09, T-264/11 P and F-59/09 RENV.

Summary

Officials — Staff of the European Investment Bank — Reports procedure — Appraisal report — Challenge before the Appeals Committee of the EIB — Committee’s decision to decline jurisdiction for the appeal without hearing the person concerned — Infringement of the rights of the defence Actions brought by officials — Staff of the European Investment Bank — Actions for damages — Claim for damages based on the same facts presented in two separate actions — Preference — Principle of the sound administration of justice — No need to adjudicate
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

22 May 2012

Case F‑109/10

AU

v

European Commission

(Civil service — Contract staff — Pensions — Severance grant)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AU seeks, principally, annulment of the Commission’s decision refusing to pay him a severance grant.

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

Summary

Officials — Contract staff — Severance grant — Conditions for granting

(Staff Regulations, Annex VIII, Art. 12)

It clearly follows from the wording of Article 12(2) of Annex VIII to the Staff Regulations that the benefit of the severance grant is subject to the condition that a member of the contract staff must, since taking up his duties with the European Union, and in order to establish or maintain pension rights, have paid into a national pension scheme, a private insurance scheme or a pension fund of his choice which satisfies the requirements set out in paragraph 1 of that article. Consequently, where the member of the contract staff has not made any payments of that nature, the mere fact that he has continued to acquire pension rights in a Member State does not entitle him to the severance grant. The provisions of Union law granting entitlement to financial benefits must be interpreted strictly.

Furthermore, under Article 12(1)(b) of Annex VIII to the Staff Regulations, members of the contract staff who have paid into a private insurance scheme or a pension fund in order to establish or maintain pension rights may receive a severance grant only if that private insurance scheme or pension fund satisfies a number of conditions, including that it guarantees that the capital will not be repaid to the staff in question.

(see paras 24-25)

See:

16 December 2004, T‑11/02 Pappas v Commission, para. 53
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

15 January 2013

Case F‑27/11

BO

v

European Commission

(Civil service — Social security — Payment of transport costs associated with medical care — Transport costs incurred for linguistic reasons)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby BO seeks annulment of the decisions of the European Commission of 1 June 2010 refusing to pay transport and accompanying adult’s costs incurred in respect of his son.

Held: The Commission’s decisions are annulled. The Commission is to bear its own costs and is ordered to pay those incurred by BO.

Summary

Officials — Social security — Sickness insurance — Transport costs incurred for linguistic reasons — Reimbursement — Not included — Reimbursement of travel costs associated with medical treatment requiring the use of a language in which the person receiving the treatment is fluent — Lawfulness — Conditions

Under point 2.5 of Chapter 12 of Title II of the general implementing provisions for the reimbursement of medical expenses, certain transport costs are not eligible for reimbursement, including costs incurred for linguistic reasons. However, that provision cannot be interpreted as precluding reimbursement of the transport costs incurred to undergo psychotherapy where it is objectively established that that therapy requires the use of a language which the recipient must understand, which is the only language in which he can express himself, and where psychotherapy in that language is not available at the beneficiary’s place of employment.

(see paras 29, 30)
Where the decision rejecting a complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the lawfulness of the contested measure, and may even regard it as an act adversely affecting the complainant and replacing the contested measure.

In order to determine whether an official is entitled to the expatriation allowance, it is clear from the wording of Article 4(1)(a) and (b) of Annex VII to the Staff Regulations that, so that periods of residence, respectively, in the State in whose territory the place of employment of the official or other staff member is situated or outside that territory may be disregarded, the legislature drew a distinction depending on whether residence was because of circumstances arising from work done for another State or for an international organisation, or for the performance of duties in the service of a State or an international organisation.

Work experience at the Commission, which is designed to be a period of specialisation supplementing either a university education or the knowledge required to fill a post, may not be regarded as coming under the concept of performance of duties, since that concept requires that the work must contribute mainly to the achievement of the objectives of the State or international organisation in question. In view of the main aim of work experience at the Commission, that finding is not called into question by the fact that some trainees receive an allowance, depending on the funding available and their family situation, or, for public or private sector employees, that they continue to be paid their salary.

Moreover, it is true that this is a different approach from that laid down in Article 4(1)(a) of Annex VII to the Staff Regulations for officials who have never been nationals of the State where they are employed, and that this approach results in a difference in treatment, mainly on the ground of the nationality of the person concerned.

However, the fact remains that that difference in treatment is justified, first, by the difference in the actual wording given by the legislature to Article 4(1)(a) and (b) of Annex VII to the Staff Regulations, and second, by the difference in the length of the reference period, which is considerably longer for officials who have been nationals of the State in which they are employed.

(see paras 40, 43-45, 47, 49)
With regard to extending the fixed-term contract of a member of the temporary staff, it is for the authority empowered to conclude contracts of employment to consider, where an express application has been made to extend the contract beyond the period of six years laid down in an internal decision of general application, whether the interests of the service justify a derogation from the six year rule.

Where the application to extend the contract is for a fixed period not exceeding six years, however, the authority empowered to conclude contracts of employment is not called upon to take a decision on the possibility of such a derogation.

There is nothing to prevent the staff member concerned from requesting the authority, under Article 90(1) of the Staff Regulations, to consider the possibility of extending his contract beyond the six year period in the interests of the service.

(see paras 54, 57, 62)

Order in Vakalopoulou v Commission, T‑97/00, EU:T:2001:38, para. 14

Judgment in Commission v Petrilli, T‑143/09 P, EU:T:2010:531

Judgment in BR v Commission, F‑13/12, EU:F:2013:39
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 — 2011 appraisal report — Unlawfulness of the decision of the Appeals Committee — No need to adjudicate’

Application:

under Article 270 TFEU, in which Mr De Nicola essentially seeks, first, annulment of the decision of the Appeals Committee (‘the Appeals Committee’) of the European Investment Bank (EIB, or ‘the Bank’) of 18 December 2012 rejecting his internal appeal seeking the annulment and amendment of his appraisal report for 2011, second, annulment of his appraisal report for 2011, third, annulment of the EIB’s guidelines to the 2011 annual staff appraisal procedure, communicated to staff on 13 December 2011, fourth, annulment of ‘all connected, consequent and prior acts’, and fifth, an order that the EIB 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 18 December 2012 is annulled. There is no need to adjudicate on the pleas seeking annulment of the appraisal report relating to 2011 and all connected, consequent and prior acts. 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 — Action directed against a decision of the Appeals Committee concerning appraisal — Judicial review — Scope (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)
The wording of the second paragraph of Article 60 of the Staff Regulations is clear, explicit and does not provide for any derogation connected with the nature of an illness — such as a psychological or psychiatric complaint — from the obligation to obtain prior permission when an official wishes to spend sick leave in a place other than his place of employment.

Therefore, irrespective of the fact that a stay outside the place of employment was brief and was in response to a medical recommendation, the appointing authority is entitled to find that an official who did not obtain prior permission has not complied with the provision of the Staff Regulations relating to stays outside the place of employment during a period of sick leave and that the absence was, accordingly, unauthorised.

Thus, although a staff report is supposed to be an assessment of the official’s performance throughout the year, there is nothing to prevent the appointing authority from reporting a one-off incident, particularly where that incident represents an infringement of a clear and specific rule directly derived from the Staff Regulations and where the official concerned did not think he was required to submit a request for prior permission. In those circumstances, the inclusion of a remark in a staff report is not only not contrary to any of the provisions of the Staff Regulations, such as Article 43, but may even have the legitimate objective of warning the person concerned and helping to avoid a repeat of the infringement in question. In that regard, an observation setting out the objectives to be achieved by the official in the area of compliance with the rules is not vitiated by a manifest error of assessment, since the improvement of the conduct in the service of the official under appraisal is precisely the objective which the staff report aims to meet.

Moreover, the difficult professional situation allegedly underlying the sick leave cannot absolve the official from the obligation, which applies to all staff members, to comply with the second paragraph of Article 60 of the Staff Regulations.

(see paras 53-56, 80)

Judgment in Österholm v Commission, T‑190/02, EU:T:2004:191, para. 39

Judgment in Morgan v OHIM, F‑26/13, EU:F:2014:180, para. 57 and the case-law cited therein, on appeal before the General Court of the European Union, Case T‑683/14 P
64

By contrast, the applicant argued that, if he had received the documents on the basis of which the AECE adopted the contested decision and if he had been heard prior to the adoption of that decision, he would have been able to inform the AECE that its reasoning was based on a misinterpretation of the data under examination. Indeed, it is apparent from the documents sent to the applicant by the Agency on 23 October 2014 that the data regarding the number of documents photocopied and printed by the applicant in 2012 concern only the last three months of that year and not the whole of 2012 as was wrongly asserted by the EMA in (i) the letter of 14 March 2014 and the decision rejecting the complaint and (ii) the letter of 23 October 2014 to which the documents mentioned above were appended. Accordingly, the AECE compared the volume of documents photocopied and printed over a thirteen-month period, running from January 2013 to the end of January 2014, with the volume for a single quarter of the year 2012 and thus relied on considerations that were manifestly incorrect. Furthermore, the EMA itself acknowledged, both in its defence and at the hearing, that such an error had been made.
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

17 March 2016

Gergő Pasqualetti

v

European Commission

‛Civil service — Member of the temporary staff recruited by the EEAS — Installation allowance — Daily subsistence allowance — Place of origin — Place of recruitment — Change in the place of residence — Action for annulment — Action for damages — Unlimited jurisdiction’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Pasqualetti seeks annulment of the decision of 4 March 2014 of the European Commission refusing him entitlement to the installation allowance and the daily subsistence allowance when he took up his appointment, on 16 February 2014, at the European External Action Service (EEAS).

Held:

The decision of 4 March 2014 of the European Commission refusing Mr Pasqualetti entitlement to the installation allowance and the daily subsistence allowance provided for in Article 5(1) and Article 10(1) of Annex VII to the Staff Regulations of Officials of the European Union is annulled. The European Commission is ordered to pay Mr Pasqualetti, in accordance with the rules in the Staff Regulations as currently in force, the allowances referred to in paragraph 1 of the operative part, together with default interest, from the dates on which they became payable respectively until the date of actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by two points. The European Commission is to bear its own costs and is ordered to pay those incurred by Mr Pasqualetti.

Summary

Officials — Reimbursement of expenses — Installation allowance — Daily subsistence allowance — Concept of residence — Official’s centre of interests (Staff Regulations, Annex VII, Arts 5 and 10; Conditions of Employment of Other Servants, Art. 22) Actions brought by officials — Purpose — Directions to the administration — Unlimited jurisdiction — Claim for payment — Amounts owing in respect of the installation allowance and the daily subsistence allowance — Not calculated by the applicant — Amounts directly and objectively ascertainable — Admissibility (Staff Regulations, Art. 91(1) and Annex VII, Arts 5 and 10)
In cases where an EU institution has a wide discretion, as it does in the area of promotion, the observance of certain procedural safeguards is of fundamental importance. Among those safeguards is the obligation to examine, carefully and impartially, all relevant aspects of the situation at issue and to provide a sufficient statement of the reasons for decisions.

More specifically, the primary function of the statement of reasons is to reduce the risk of arbitrariness by requiring the administration to organise its reasoning into a coherent whole and by leading it, in this way, to rationalise its opinion and the effect of its decision on the basis of relevant arguments which are unequivocal, free of contradiction and sufficient.

Thus, the primary reason for the obligation to state reasons attaching to the obligations to which the administration is subject under Article 266 TFEU, where one of its acts has been annulled, gives rise to two successive obligations on the part of the institution concerned. First, the institution is required to carry out an effective reconsideration of the grounds which, while not expressed in the annulled decision not to promote, may nonetheless underlie that decision, and must do so in the light of the reasons which form the necessary support for the operative part of the judgment. Secondly, it is required to make the grounds thus reconsidered explicit in the decision made in substitution for the decision not to promote. Otherwise, the obligation to give a sufficient statement of reasons for a decision, especially after an annulment for failure to give reasons, or to give sufficient reasons, would be artificial and meaningless, when the statement of reasons is an essential procedural requirement. Furthermore, the need, after annulment for infringement of the obligation to state reasons, to carry out an effective reconsideration of the grounds which may have formed the basis for a decision for which there was no express statement of reasons, and to make that reconsideration explicit in a statement of reasons, does not relate to the merits of the decision on promotion and, a fortiori, does not require the administration to take a decision in the applicant’s favour. Rather, it is a procedural step which is a prerequisite for the adoption of a lawful decision.

(see paras 24-26)

Judgments of 23 September 2004 in Hectors v Parliament, C‑150/03 P, EU:C:2004:146, paragraph 41, and 16 June 2015 in Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 69

Judgment of 8 September 2009 in ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 163
Although a salary statement, by its nature and purpose, does not, as such, have the characteristics of an act adversely affecting an official, since it merely expresses in financial terms the effect of earlier legal decisions concerning the official’s situation, in procedural terms such a statement may constitute an act producing specific legal effects in respect of the person to whom it is addressed. Thus, the sending of the salary statement has the effect of starting the time for bringing a complaint and an appeal against an administrative decision running, where that statement clearly shows the decision taken and its scope. That being so, salary statements, which are sent monthly and contain a statement of an official’s pecuniary rights, may constitute acts adversely affecting that official, against which a complaint and, if necessary, an appeal may be brought.

However, where, because of an error by the administration in the computer encoding of an official’s entitlements under the Staff Regulations, the expatriation allowance was not paid, even though the official’s entitlement to that allowance had been explicitly confirmed by the institution concerned following his return to the institution after a secondment, the salary statements for the official from the date of that confirmation do not reflect any pecuniary decision, do not change his legal position and do not definitively determine the institution’s position.

Consequently, since they do not reflect a decision of the appointing authority of the institution concerned, the salary statements cannot have the effect of setting the time running for lodging a complaint.

(see paras 34, 37-40)

Judgment of 27 June 1989 in Giordani v Commission, 200/87, EU:C:1989:259, para. 13

Judgment of 19 September 2008 in Chassagne v Commission, T‑253/06 P, EU:T:2008:386, para. 139

Order of 13 September 2013 in Conticchio v Commission, T‑358/12 P, EU:T:2013:525, para. 23 and the case-law cited therein

Order of 22 June 2015 in van Oudenaarden v Parliament, F‑139/14, EU:F:2015:64, para. 29 and the case-law cited therein
Under Article 18 of Annex IX to the Staff Regulations, the Disciplinary Board, acting by a majority, delivers a reasoned opinion as to whether the facts complained of are established and as to any penalty to which those facts should give rise. That opinion is not binding on the appointing authority in respect of whether the facts complained of are established.

Accordingly, an official cannot legitimately criticise the Disciplinary Board for not considering procedural issues which he had raised throughout the disciplinary proceedings, as such questions are not necessarily required to be dealt with in the reasoned opinion adopted under Article 18 of Annex IX to the Staff Regulations.

Furthermore, since the appointing authority is not bound by the opinion of the Disciplinary Board as to whether the facts complained of are established, the objections concerning the examination of the facts carried out by the Disciplinary Board must be dismissed as inoperative. Such objections are to be raised, if at all, by way of challenge to the final decision taken by the appointing authority pursuant to Article 22 of Annex IX.

(see paras 78-80)

See:

Judgment of 3 June 2015 in Bedin v Commission, F‑128/14, EU:F:2015:51, paras 23 to 25