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

(Second Chamber)

20 June 2012

Case F‑79/11

Andreas Menidiatis

v

European Commission

(Civil service — Official — Recruitment — Rejection of application — Implementation of judgment annulling the decision — Reasonable time — Individual implementing measures — Loss of opportunity)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, seeking an order that the Commission pay Mr Menidiatis, first, the sum of EUR 10 000 in respect of the loss of opportunity suffered as a result of its failure to take measures to implement the judgment of the Tribunal of 2 April 2009 in Case F‑128/07 Menidiatis v Commission, and, second, the sum of EUR 5 000 for the non-material damage allegedly caused to him by the Commission’s failure to disclose the action it intended to take on the Menidiatis judgment.

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

Summary

1. Officials — Actions — Judgment annulling a measure — Effects — Annulment of a recruitment procedure — Administration’s obligations

(Art. 266 TFEU)

2. Officials — Actions — Judgment annulling a measure — Effects — Obligation to implement — Reasonable time — Replacement, by a new decision, of an annulled Commission recruitment decision

(Art. 266 TFEU)

1. Where a recruitment procedure has been annulled by the Union judicature, the annulling judgment may not, under any circumstances, affect the discretionary power of the administration to widen its field of choice in the interests of the service by withdrawing the original vacancy notice and at the same time initiating a fresh procedure to fill the post at issue. Since the appointing authority cannot carry through the original recruitment procedure, which has been declared unlawful in the annulling judgment, it is a fortiori entitled to initiate a fresh recruitment procedure without being obliged to take up the procedure at the stage it had reached before the adoption of the unlawful act.

(see para. 37)

See:

15 April 2010, F‑104/08 Angelidis v Parliament, para. 42

2. It is not normally possible to comply immediately with a judgment annulling a measure, since it requires the adoption of a number of administrative measures, and so the institutions must have a reasonable time to comply with such a judgment.

In the case of a judgment of the Civil Service Tribunal allowing the Commission various options when choosing a legal framework for the adoption of a new decision on filling posts of head of the Commission’s representations, a period of five months is reasonable for examining the various legal solutions and then adopting a new decision on filling head of representation posts.

(see paras 40, 43)

See:

12 January 1984, 266/82 Turner v Commission, para. 5

10 July 1997, T‑81/96 Apostolidis and Others v Commission, para. 37
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

12 December 2013

Erik Simpson

v

Council of the European Union

‛Civil service — Promotion — Decision not to promote the applicant to grade AD 9 after he passed a competition for grade AD 9 — Equal treatment’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Simpson seeks, first, annulment of the decision of 9 December 2010 by which the Council of the European Union rejected his request for promotion to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council pay compensation for the harm suffered.

Held:

The decision of the Council of the European Union of 9 December 2010 is annulled. The action is dismissed as to the remainder. The Council of the European Union is to bear its own costs and is ordered to pay the costs incurred by Mr Simpson.

Summary

Officials — Decision adversely affecting an official — Obligation to state grounds — Scope — Assessment in the specific circumstances of the case (Staff Regulations, Art. 25) Officials — Decision adversely affecting an official — Obligation to state grounds at the latest when rejecting a complaint — Scope — Inadequate statement of grounds — Rectification in the course of the judicial proceedings — Limits (Staff Regulations, Arts 25 and 90(2))
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

21 January 2014

Marc Van Asbroeck

v

European Parliament

‛Civil service — Classification in grade — Applicants placed on the reserve list of a competition to change category prior to the entry into force of the 2004 Staff Regulations — Compensatory allowance — Decision to re-grade officials benefiting from that compensatory allowance’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Van Asbroeck seeks annulment of the decision of 15 November 2011 by which the European Parliament re-graded him, following his transfer from the European Commission, in grade AST 5, step 3, with his seniority in step being fixed at 1 September 2011, and, so far as is necessary, annulment of the decision of 15 June 2012 dismissing his complaint.

Held:

The action is dismissed. The European Parliament is to bear its own costs and is ordered to pay the costs incurred by Mr Van Asbroeck.

Summary

Officials — Staff Regulations — Regulation No 723/2004 amending the Staff Regulations — Transitional arrangements — Administration’s discretion — Scope — Autonomy of the institutions (Staff Regulations, Art. 110; Council Regulation No 723/2004, recital 37) Officials — Equal treatment — Limits — Advantage unlawfully granted
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

7 November 2013

Maria Luisa Cortivo

v

European Parliament

‛Civil service — Officials — Pensions — Correction coefficient — Member State of residence — Concept — Main residence — Residence shared between Member States — Documents in support — Legitimate expectations’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Cortivo seeks, in particular, annulment of the decisions by which the appointing authority of the European Parliament fixed her main place of residence in Luxembourg (Luxembourg) and withdrew the correction coefficient for France with retroactive effect from 1 January 2010.

Held:

The action is dismissed. Ms Cortivo is to bear her own costs and is ordered to pay the costs incurred by the European Parliament.

Summary

In order for the place where a retired official lives to be classified not just as his residence but also as his main residence within the meaning of Article 20 of Annex XIII to the Staff Regulations, the various elements of the concept of residence, that is to say, the actual fact of residing at the location in question, conferring on it the nature of an actual residence, the development of normal social relations and the incurring of expenditure with the intention that living in that location should be of a lasting, continuous character, must be ascribed considerable importance. The provisions of Article 20 of Annex XIII to the Staff Regulations do not allow the administration any discretion as to whether or not to grant the application of correction coefficients, but confers on it circumscribed powers, in so far as the mandatory wording of those provisions makes it clear that the administration is bound to grant the advantage in question if it finds that the conditions laid down by those provisions are satisfied. Consequently, the Courts of the Union have a full power of review when examining both the facts relied on by the administration and how the administration characterised them, for the purpose of determining whether the conditions for the grant of the application of a specific correction coefficient were fulfilled. (see paras 40-41) See: 27 September 2006, T‑416/04 Kontouli v Council, paras 74 and 75 8 April 2008, F‑134/06 Bordini v Commission, para. 89

The burden of proving his main place of residence lies with the retired official, and the competent institution, when assessing the evidence provided in that respect and, where necessary, carrying out checks, must avoid abuses of that provision. In order to prove his main residence, the official concerned may refer to all the factual circumstances which constitute that residence and provide any evidence he deems appropriate. (see paras 42-43) See: 4 June 2003, T‑124/01 and T‑320/01 Del Vaglio v Commission, para. 75 4 May 2010, F‑100/08 Petrilli v Commission, para. 33 and the case-law cited therein
Although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not by those means circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view. In particular, an official who has failed to contest the acts purportedly adversely affecting him by bringing an action for annulment in due time cannot repair that omission and procure for himself a new period for lodging an appeal by bringing a claim for damages.

It follows from the principle of sound administration that disciplinary authorities are under an obligation to conduct disciplinary proceedings with due diligence and to ensure that each procedural step is taken within a reasonable time following the previous step. The unreasonable duration of disciplinary proceedings may be the result both of the conduct of prior administrative investigations and of the disciplinary proceedings themselves, since the question whether the disciplinary proceedings, once commenced, have been conducted with due diligence will be influenced by the length of the period between the occurrence of the alleged disciplinary offence and the decision to institute disciplinary proceedings. Lastly, the reasonableness of the duration of the proceedings must be assessed in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

(see para. 46)

judgment in Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, para. 29

judgment in Andreasen v Commission, F‑40/05, EU:F:2007:189, para. 194; and order in CX v Commission, F‑5/14 R, EU:F:2014:21, para. 43
Only measures which give rise to binding legal effects capable of directly and immediately affecting the applicant’s interests by significantly altering his legal position constitute acts adversely affecting him. In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the administration upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure.

Consequently, since the opinion of the Committee of Inquiry of the European Investment Bank is not an act which is open to challenge as such, claims seeking its annulment must be dismissed as inadmissible.

However, the unlawfulness of the opinion of the Committee of Inquiry may be relied on in support of claims for annulment of the final decision adopted by the President of the EIB. It follows from the internal rules entitled ‘Policy on Dignity at Work’, adopted by the European Investment Bank and referred to in Article 3.6 of the EIB’s Staff Code of Conduct, that the opinion of the Committee of Inquiry is a substantive procedural requirement, and any factual or procedural irregularities committed in the drawing up of that opinion constitute a defect which renders the final decision of the President of the EIB adopted on the basis of that opinion unlawful.

(see paras 44-46)

Judgment of 11 November 2014 in De Nicola v EIB, F‑52/11, EU:F:2014:243, paras 144 and 145
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

27 October 2015

Vassilliki Labiri

v

Committee of the Regions of the European Union

‛Civil service — Officials — 2013 promotion procedure — Decision not to promote the applicant — Article 45(1) of the Staff Regulations — Comparison of merits’

Application

:

under Article 270 TFEU, by which Ms Labiri seeks annulment of the decision of the Committee of the Regions of the European Union, disclosed by a staff communication of 9 October 2013 publishing the list of officials promoted to grade AD 13 in the 2013 promotion exercise, not to promote her to grade AD 13 in that exercise.

Held

:

The action is dismissed. Ms Labiri is to bear her own costs and is ordered to pay the costs incurred by the Committee of the Regions of the European Union.

Summary

Actions brought by officials — Purpose — Directions to the administration — Statements of law — Inadmissibility

(Staff Regulations, Art. 91)

The EU judicature has no power to give directions to the institutions. In an action brought under Article 91 of the Staff Regulations, heads of claim requesting the Civil Service Tribunal to address directions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since it is not for the EU judicature to issue directions to the institutions of the Union or to make statements of law. That applies to claims requesting the Civil Service Tribunal to establish the existence of certain facts and to instruct the administration to adopt measures such as to reinstate the person concerned in their rights.

(see paras 19, 20)

See:

Order of 29 June 2010 in Palou Martínez v Commission, F‑11/10, EU:F:2010:69, paragraphs 29 to 31, and judgment of 5 July 2011 in V v Parliament, F‑46/09, EU:F:2011:101, paragraph 63 and the case-law cited therein
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

7 July 2015

Case F‑53/14

WR

v

European Commission

(Civil service — Remuneration — Family allowances — Dependent child allowance — Article 2(4) of Annex VII to the Staff Regulations — Person treated as a dependent child — Person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure — Conditions for granting — Withdrawal of entitlement to the allowance — Recovery of overpayments under Article 85 of the Staff Regulations)

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which WR seeks annulment of the three decisions of the European Commission of 20 August 2013 withdrawing her entitlement to a dependent person allowance for the maintenance of her mother for the period from 1 March 2010 to 28 February 2013, of the Commission decision of 25 September 2013 withdrawing her mother’s entitlement to cover under the Joint Sickness Insurance Scheme and of the Commission decision of 23 October 2013 claiming recovery from the applicant of the overpaid sums.

Held:

The action is dismissed. WR is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials—Remuneration—Family allowances—Dependent child allowance—Person treated as a dependent child—Conditions—Maintenance involving heavy expenditure—Criteria (Staff Regulations, Art. 72 and Annex VII, Art. 2(4)) Officials—Principles—Protection of legitimate expectations—Withdrawal of entitlement to an allowance—Infringement—None (Staff Regulations, Art. 85) Officials—Recovery of overpayments—Conditions—Patent overpayment—Concept (Staff Regulations, Art. 85)
91

In the present case, the contested appraisal report is sufficiently reasoned. Indeed, it indicates the number of points obtained and refers to the objective that had been set; it specifies the percentage of decisions made out of time; it refers to the work carried out in the context of the review of the internal manual; it gives details of the competencies of the applicant, both in terms of her analytical capacities and as regards communication, management and leadership, quality of results as well as self-management and organisation at work and conduct in the service; the general assessment is followed by a summary that weighs the strengths and weaknesses of the applicant; furthermore, the reasoning of the report was supplemented by the note of 23 May 2013 that the reporting officer drew up for the attention of the JEPC and that was copied to the applicant, which states the reasons why, in particular, the quality of the applicant’s decisions did not compensate for her shortcomings regarding meeting the set objectives and deadlines. In those circumstances, the applicant was able to understand exactly what was being alleged against her, without her needing an explanation of the method of calculation used in determining the averages for the department. Moreover, as already stated in paragraph 66 of the present judgment, it is not apparent from the reasoning of the contested appraisal report, or from the note of 23 May 2013, which is not even referred to in that report, that the reporting officer relied on a comparison of the results obtained by the applicant with those obtained by the other examiners of her department in order to find that the general assessment of her performance deserved only level 6.
The words ‘any further renewal’ in the third sentence of the first paragraph of Article 8 of the Conditions of Employment of Other Servants must be interpreted as referring to any process that leads to a temporary staff member under Article 2(a) of the Conditions of Employment of Other Servants, at the end of his engagement for a fixed period, continuing, in that capacity, his employment relationship with his employer, even if such renewal is accompanied by grade progression or a change in the duties performed. The situation could be otherwise only if the new contract were to mark an interruption of the career path, as shown, for instance, by a material change in the nature of the duties performed by the staff member concerned.

Although Article 8 of the Conditions of Employment of Other Servants provides for the possibility of renewing a temporary staff member’s contract, this is not a right of the person concerned, but merely a possibility which is left to the discretion of the competent authority. The institutions of the European Union enjoy a broad discretion in the organisation of their departments on the basis of the tasks entrusted to them and in assigning the staff available to them having regard to such tasks, on condition, however, that staff are assigned in the interests of the service.

In view of the broad discretion which the institutions have with regard to the renewal of a contract, the Tribunal must, when it has before it an action for annulment directed against an act adopted in the exercise of that discretion, restrict itself to ascertaining whether, regard being had to the factors and reasons which 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 as a result, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the 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 62-64)

Judgment of 10 October 2014 in EMA v BU, T‑444/13 P, EU:T:2014:865, para. 28

Judgments of 27 November 2008 in Klug v EMEA, F‑35/07, EU:F:2008:150, paras 65 and 66; 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, para. 91, and 8 October 2015 in FT v ESMA, F‑39/14, EU:F:2015:117, paras 73 and 74 and the case-law cited therein
32

Since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the EU judicature has held that the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8). That may, in particular, be the case where the EU judicature finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgment in Adjemian and Others v Commission, EU:T:2011:506, paragraph 33).