Case F-105/06: Action brought on 4 September 2006 — Lübking and Others v Commission
Date: 2006-09-04
Institutions: Civil Service Tribunal
Subjects: European Commission, action by staff, administrator, professional career, promotion

18.11.2006

EN

Official Journal of the European Union

C 281/45

Form of order sought

Form of order sought

The applicant claims that the Tribunal should:

— annul that part of the decision of the Appointing Authority
of 18 April 2006 which concerns:
the Appointing
Authority's implied refusal to adapt the applicant's salary in
accordance with the Staff Regulations in respect of a depen-
dent child for whom he has alternating custody, (b) the
Appointing Authority's refusal
to pay the child's travel
expenses to the applicant's place of origin, in accordance
with the Staff Regulations;

(a)

— order the retrospective payment of those sums with added

interest;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official with alternating custody
of a child whose mother is also an official of the European
Communities, requested, on his return to Brussels after a
period of secondment outside Europe, payment to him of the
allowances and advantages relating to the child. The official
dealing with the file called for the production of the original of
a declaration of agreement between the former spouses on the
readjustment of the applicant's rights in the present case. Since
that declaration was only produced by email, the authorities
did not grant the applicant's requests.

In support of his action, the applicant pleads infringement of
Article 67 of the Staff Regulations and of Articles 7 and 8 of
Annex VII to the Staff Regulations, as interpreted by case-law.
inter alia, that the authorities' discretion is not
He submits,
unlimited and they have a duty to comply with the principles
of
the
sound administration and proportionality. Also,
supporting documents required must be directly linked to the
payment requested and they must be referred to by the applic-
able provisions, or they must be absolutely necessary in order
to set the amount to be paid.

— annul the decision of the Appointing Authority of 30 May
2006 rejecting the complaint brought by the applicant;

— decide that the applicant continues to have the right to
transfer to Finland 35 % of his net salary, an amount which
is adjusted by the transfer coefficient for that country, from
16 January 2006;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was transferring to Finland, his country of origin,
a part of his salary, as multiplied by a coefficient, in accordance
with Article 17 of Annex VII to the old Staff Regulations. In
the context of a programme of exchange of officials between
the Commission and the Member States, he was transferred to
Finland during the years 2004 and 2005. During this period,
the Commission paid him all of his salary in Finland, increased
by the application of the transfer coefficient. In January 2006,
upon his return to Brussels, the applicant was refused the right
to resume the transfer to Finland of the part of his salary that
he had been transferring before his move. In that regard, the
administration pointed out that the abovementioned provision
had been amended following the entry into force of the new
Staff Regulations, and that the applicant did not satisfy the
condition laid down in Article 17(2)(a) of Annex XIII to the
Staff Regulations for the preservation of that benefit.

In his application, the applicant submits that, since he benefited
from the transfer both during the time of his posting to
Finland and before, his case falls within the circumstances envi-
saged by Article 17(2)(a) of Annex XIII to the Staff Regulations.

Action brought on 4 September 2006 — Lübking and
Others v Commission

Action brought on 24 August 2006 — Lohiniva v Commis-
sion

(Case F-98/06)

(2006/C 281/81)

Language of the case: Finnish

(Case F-105/06)

(2006/C 281/82)

Language of the case: French

Parties

Parties

Applicant: Risto Lohiniva (Brussels, Belgium) (represented by: V.
Teperi, lawyer)

Applicants:
(represented by: B. Cortese and C. Cortese, lawyers)

Johannes Lübking (Brussels, Belgium) and Others

Defendant: Commission of the European Communities

Defendant: Commission of the European Communities

C 281/46

EN

Official Journal of the European Union

18.11.2006

Form of order sought

The applicants claim that the Tribunal should:

— annul the decision of the Appointing Authority published
in Administrative Notice No 85-2005 of 23 November
2005, in so far as it provided for the applicants' promotion
to grade A*9, step 1;

— so far as necessary, annul the Appointing Authority's deci-
sion of 23 May 2006 in so far as it rejected the complaint
submitted by the applicants;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, Commission officials, challenge the Appointing
Authority's decision to promote them in the 2005 promotion
procedure to grade A*9, a new grade inserted since 1 May
2004 between grades A*8 (formerly A7) and A*10 (formerly
A6). They claim that the Appointing Authority should have
promoted them, not to grade A*9 but to grade A*10, as it did
in the 2004 promotion procedure for officials who, like the
applicants, on 30 April 2004 were classified in grade A7 and
were eligible for promotion to the higher grade A6.

In support of their action, the applicants raise three pleas, the
first of which alleges infringement of the principles of equal
treatment and reasonable career prospects. The applicants
in accordance with those principles, the officials
claim that,
who on 30 April 2004 were classified in grade A7 (renamed
grade A*8 from 1 May 2004) and were eligible for promotion
to the higher grade should all be subject to identical conditions
as regards career progress. However, the officials who were
promoted in November 2004 in the 2004 procedure — thus
after the entry into force of the new Staff Regulations — were
appointed after promotion to grade A*10, while those — such
as the applicants — promoted in the 2005 procedure were
only appointed to a lower grade, namely the intermediate grade
A*9, even though the two groups of persons referred to above
were in a position which was comparable in all respects.

In connection with this plea, the applicants also raise a plea of
illegality for the purpose of Article 241 EC of the General
Implementing Provisions ('GIP') of Article 45 of the Staff Regu-
lations applicable to the 2005 promotion procedure or, more
fundamentally, of Article 45 of Annex XIII to the Staff Regula-
tions, in that those provisions did not lay down transitional
measures intended to ensure the observance of the principles of
equal treatment and reasonable career prospects between offi-
cials who were of grade A7 on 30 April 2004 and eligible for
promotion on that date to the higher grade A6.

By their second plea, the applicants allege there was an infrin-
gement of the principle of the protection of legitimate expecta-
tions. They claim, inter alia, that Article 10(5) of the GIP of
Article 45 of the Staff Regulations applicable to the 2004
promotion procedure guarantees to A7 officials eligible for
promotion on 30 April 2004 (and reclassified as A*8 on 1 May
2004) career progress conditions comparable to those which

they would have had under the career structure applicable until
that date, by providing for, by means of a legal fiction (retro-
active promotion) their promotion from grade A*8 directly to
grade A*10. The applicants maintain that the adoption of that
transitional measure created the legitimate expectation on their
part that a measure having the same effect would also be
adopted in subsequent promotion procedures.

The third plea alleges that no reasons were stated for the
contested decision. The applicants claim in that regard that,
even if, by its nature, the promotion decision does not need to
contain specific reasons for the Appointing Authority's choice,
the authorities are nevertheless required to give reasons for
their choice in the reply to the complaint brought against that
decision. However,
the Appointing
Authority only answered the complaints set out by the appli-
cants very superficially and, in particular, did not answer the
fundamental question raised by the complaint, which is
connected with the inequality of treatment between A7 officials
(reclassified as A*8) promoted in the 2005 promotion proce-
dure and their counterparts promoted in the 2004 promotion
procedure.

in the present case,

Action brought on 1st September 2006 — Erbežnik v
European Parliament

(Case F-106/06)

(2006/C 281/83)

Language of the case: Slovenian

Parties

Applicant: Anže Erbežnik (Luxembourg, Luxembourg)
sented by: P. Peče, Lawyer)

(repre-

Defendant: European Parliament

Form of order sought

— annul the decision of the Secretary General of the European

Parliament No 110029 of 1st June 2006;

— deliver a ruling in which the applicant is identified as a
person who had a lawful non-marital relationship recog-
nised by the primary and secondary rules of EU legislation
with Miss H. (now Mrs Erbežnik) from the start of his work
as a Lawyer Linguist for the European Parliament and there-
fore has right to a full payment by the European Parliament
of his installation allowance as it is provided for married
officials and is being calculated on the basis of the house-
hold allowance;