Case F-97/06: Action brought on 15 August 2006 — Adelaida Lopez Teruel v Office of Harmonisation for the Internal Market
Date: 2006-09-30
Institutions: Civil Service Tribunal
Subjects: European Union Intellectual Property Office, European official, action by staff, discretionary power, equal treatment, occupational health, regulations for civil servants, rights of civil servants

C 237/24

EN

Official Journal of the European Union

30.9.2006

— appoint an expert;

— order the defendant to pay the costs.

and contests the Commission Invalidity Committee's decision
indefinitely to stay the proceedings under Article 78(5) of the
Staff Regulations, until a decision has been taken on the basis
of Article 73 of the Staff Regulations.

Pleas in law and main arguments

In support of his application, the applicant puts forward eight
pleas in law.

First, he criticises the Commission for placing him at the heart
of the ‘Berthelot’ affair and for considering him as the leading
instigator of that affair, whereas in fact all of these allegations
were false, and there was not the slightest evidence to support
any such allegations against the applicant. In doing so, the
Commission failed to fulfil its duty to have regard for the inter-
ests of officials and its duty of good administration, and
frustrated the applicant's legitimate expectations.

Second,
the applicant criticises the Commission for having
gravely compromised his right to a fair hearing through all the
failures and deficiencies in the administrative enquiries stem-
ming from the ‘Berthelot’ affair, which were not carried out
impartially.

Third, the applicant claims breach of the Commission's duty of
confidentiality in allowing journalists, during the course of the
year 2000, to enter OLAF's premises and thereby gain knowl-
edge of certain confidential documents concerning the appli-
cant, details of which were then broadcast
in a television
programme.

Eighth, the applicant finds fault with the fact that disciplinary
proceedings against him were initiated and continued, while
the evidence that formed the basis of those proceedings had
been found to be baseless by the Belgian courts, in criminal
proceedings brought against the applicant.

The applicant concludes that
the Commission's abovemen-
tioned wrongful acts are the cause of the nervous depression
which forced him prematurely to end his career as an official.
This state of affairs caused material damage and pain and
suffering to him and his family.

Action brought on 15 August 2006 — Adelaida Lopez
Teruel v Office of Harmonisation for the Internal Market

(Case F-97/06)

(2006/C 237/42)

Language of the case: French

Fourth, the Commission criticises the Commission's decision to
lift his immunity from jurisdiction.

Parties

Fifth, the applicant criticises the Commission for transferring
him to the post of Chief Adviser in the Directorate-General
Research and Technological Development, not in the interests
of the Commission's service nor by applying the institution's
mobility policy, but as a veiled disciplinary sanction.

Sixth, regarding the procedure for recognition of the occupa-
tional cause of the applicant's illness (Article 73 of the Staff
Regulations), the applicant contests the Commission's decisions
to exclude, from the outset, the possibility that his illness might
be work-related, and to transfer his file to the Investigation and
Disciplinary Office of the Commission (IDOC), so that the
latter could carry out administrative enquiries seeking to deter-
mine the cause of his illness.

Applicant: Adelaida Lopez Teruel (El Casar, Spain) (represented
by: G. Vandersanden, L. Levi and C. Ronzi, lawyers)

Defendant: Office of Harmonisation for the Internal Market

Form of order sought

— annul

the appointing authority's decision of 6 October
2005 to refuse the applicant's request to convene an Inva-
lidity Committee, in accordance with Article 78 of the Staff
Regulations;

— in so far as it is necessary, annul the appointing authority's
decision of 5 May 2006 rejecting the complaint lodged by
the applicant on 6 January 2006;

Seventh, the applicant relies on the independence of the proce-
dures governed by Articles 73 and 78 of the Staff Regulations

— order the defendant to pay the costs.

30.9.2006

EN

Official Journal of the European Union

C 237/25

Pleas in law and main arguments

The applicant, an official of OHIM, sent a request to the admin-
istration on 8 June 2005 asking that an Invalidity Committee
be convened so as to decide on the existence of an invalidity
within the meaning of Article 78 of the Staff Regulations.
OHIM refused to convene such a Committee, pointing out first,
that the appointing authority has discretion in such matters,
and, second, that the disease she referred to could not give rise
to invalidity proceedings, given that it had already given rise to
arbitration proceedings.

is made up of two parts. In the first part,

In her application, the applicant raises three pleas in law, of
which the first, alleging infringement of Article 78 of the Staff
Regulations,
it is
argued that the official
in question has the right to bring a
matter before the Invalidity Committee, irrespective of the right
to do so also given to the appointing authority, given that Arti-
cles 78 and 59 of the Staff Regulations have a different ratio
legis and govern different types of situations. In the second

the

takes

applicant

part,
issue with OHIM for having
committed a manifest error of assessment and having exceeded
the bounds of its powers, in that it substituted its assessment
for that of medical experts.

The second plea alleges infringement of the duty to have regard
for the welfare of officials and the principle of good administra-
tion. Specifically, OHIM did not weigh in the balance the inter-
ests in issue and did not at any time take into account the
applicant's extremely delicate state of health.

The third plea alleges infringement of the principles of non-
discrimination and equal treatment. According to the applicant,
all other European Community officials can invoke the right to
have their cases examined by an Invalidity Committee, unlike
those of OHIM. The interpretation by OHIM of Article 78 of
the Staff Regulations would lead to a rupture of the single
administration of the Communities, as enshrined in Article 9(3)
of the Treaty of Amsterdam.