Case F-6/06: Action brought on  13 January 2006  — Nicola Scafarto v Commission
Date: 2006-04-22
Institutions: Civil Service Tribunal
Subjects: European Commission, European official, action by staff, competition (EU), personnel administration, professional career, recruitment, regulations for civil servants

C 96/34

EN

Official Journal of the European Union

22.4.2006

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

Action brought on 13 December 2005 — Gesner v OHIM

or official was
summoned before that committee.

sufficiently incapacitated for him to be

(Case F-119/05)

(2006/C 96/53)

(Language of the case: Spanish)

Parties

Applicant: Charlotte Gesner
(repre-
sented by: J. Vazquez Vazquez and C. Amo Quiñones, lawyers)

(Kildedalsvej, Denmark)

Defendant: Office for Harmonisation in the Internal Market

Form of order sought

The applicant claims that the Court should:

— order that the decision adopted by the Office for Harmoni-
sation in the Internal Market (OHIM) of 2 September 2005
be annulled, to the extent that it dismisses the applicant's
complaint of 10 May 2005 against its decision of 21 April
2005 refusing to appoint an invalidity committee.

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a temporary agent of OHIM until 15 April
2005, has suffered from a slipped disc and various conditions
of her spinal column since 2003. Despite having surgery and
undergoing medical treatment and physiotherapy, the appli-
cant's acute back pain did not stop and the fact that she spent
long periods sitting caused her condition to deteriorate, with
the result that she was on sick leave for several months.

On 11 March 2005 the applicant requested OHIM to appoint
an invalidity committee in order to establish her incapacity to
perform her duties and grant her an invalidity allowance.

In her second plea, the applicant states that the reasoning of
the contested decision is incorrect. The application of the time-
limits provided for in Article 59(4) of the Staff Regulations
hinders access to an invalidity allowance by officials or agents
who have not fulfilled that criterion, but who may be incapaci-
tated as a result of accidents or illnesses which manifest them-
selves more quickly.

In her third plea the applicant claims that the provisions applic-
able to the appointment of an invalidity committee need not be
limited to Article 59 of the Staff Regulations, but include provi-
sions which fall within the legal framework governing access to
invalidity allowances, namely Articles 31 to 33 of the Condi-
tions of Employment
the European
Communities, Article 9 of the Staff Regulations, and Annex
VIII thereto.

for Other Servants of

In her final plea, the applicant argues that the contested deci-
sion infringes the principles of non-discrimination and equal
treatment. OHIM prevents its staff from convening an invalidity
committee although that possibility appears to be available to
all other Community personnel. Moreover, as regards agents of
OHIM having contracts of less than three years, it would be
difficult for them to gain access to an invalidity allowance
however incapacitated they were, because they could never
satisfy the criterion laid down in Article 59(4) of the Staff
Regulations.

Action brought on 13 January 2006 — Nicola Scafarto v
Commission

(Case F-6/06)

(2006/C 96/54)

(Language of the case: Italian)

OHIM refused her application on two grounds. First, Article 59
of the Staff Regulations should be interpreted as meaning that
the decision to convene an invalidity committee is a matter for
the appointing authority. Second, since the applicant has been
on sick leave for only 294 days in the last three years she has
not completed the period prescribed in Article 59(4) of the
Staff Regulations.

Parties

In her application, the applicant puts forward four main pleas.
First, she argues that the appointing authority cannot arrogate
to itself the power to convene an invalidity committee. If that
were the case the appointing authority could determine in a
pre-emptive, subjective and arbitrary manner whether the agent

Applicant: Nicola Scafarto (Luxembourg, Luxembourg)
sented by: A. D'Antuono and G. Somma, lawyers)

(repre-

Defendant: Commission of the European Communities

22.4.2006

EN

Official Journal of the European Union

C 96/35

Form of order sought

Action brought on 23 January 2006 — B v Commission

The applicant claims that the Court should:

(Case F-7/06)

(2006/C 96/55)

— declare inapplicable, within the meaning of Article 241 EC,

Article 12 of Annex XIII to the Staff Regulations;

(Language of the case: French)

— annul
applicant's
(AIPN)
against Decision No 000617 of 17 March 2005;

the decision by which the appointing authority
complaint

implicitly dismissed the

Parties

— annul only the part of that decision in which the AIPN
instead of

placed the applicant in Grade A*6, first step,
A*8, first step;

Applicant: B (Brussels, Belgium) (represented by: S. Rodrigues
and A. Jaume, lawyers)

Defendant: Commission of the European Communities

— order the defendant to replace the contested part of that
decision with a part placing the applicant, with retroactive
effect, in Grade A*8, first step;

Form of order sought

The applicant claims that the Court should:

— order the defendant to pay the applicant all the amounts
which he did not receive owing to the unlawfulness of the
contested decisions, including interest;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who was included on the reserve list for Compe-
tition EUR/A/155/2000 for Grades A6 and A7, was subse-
quently recruited by the Commission at Grade A*6 after the
new Staff Regulations had come into force.

By his application he claims primarily that the decision deter-
mining his grade infringes Article 31 of the Staff Regulations.

He goes on to submit that,
in any event, that decision is
unlawful, in so far as its legal basis, Article 12 of Annex XIII to
the Staff Regulations, is unlawful on the ground that it infringes
the following principles: legal certainty, the protection of legiti-
mate expectations, non-discrimination, equal treatment, reason-
ableness and proper administration. Finally and in the alterna-
tive, the applicant adds that even if the protection of legitimate
expectations is not always absolute, any exception thereto and/
or derogation therefrom must be duly justified, a condition
which was not fulfilled in this case.

— annul

the decision of

the Appointing Authority of 10
October 2005 dismissing the applicant's complaint taken in
conjunction with the decision of the Appointing Authority
of 26 April 2005 refusing to grant the applicant an expa-
triation allowance;

— order the defendant to pay the applicant an expatriation

allowance, as from the date of taking up her post;

— order the defendant to pay interest for late payment, as

from the decision to be taken;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of the Commission, challenges the
decision which definitively establishes her rights by which the
defendant refused her an expatriation allowance.

In support of her action, she pleads infringement of Article
4(1)(a) of Annex VII to the Staff Regulations. She also raises a
plea of unlawfulness to the effect
the
criterion of nationality, set out in the first indent of that provi-
sion, to officials who have both the nationality of the Member
State where they are employed and that of another Member
State, infringes the principles of non-discrimination and equal
treatment.

that application of

Next, the applicant claims that,
in any event, she fulfils the
condition of residence under the second indent of the provision
in question.

In the alternative, the applicant pleads infringement of Article
4(1)(b) of Annex VII to the Staff Regulations, in so far as the
contested decision does not take account of the fact that the
applicant satisfies both the criterion of nationality and the
criterion of residence cited in that provision.