Case F-106/06: Action brought on 1st September 2006 — Erbežnik v European Parliament
Date: 2006-11-18
Institutions: Civil Service Tribunal
Subjects: European Parliament, action by staff, allowances and expenses, marital status, rights of civil servants

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;

18.11.2006

EN

Official Journal of the European Union

C 281/47

— alternatively, deliver a decision whereby the European
Parliament is obliged to take into account the change in the
family status of the applicant (his marriage) in accordance
with the principle of proportionality and provide him the
full amount on installation allowance (for married officials)
for the parts of the installation allowance paid after his
marriage in August 2005;

— order the defendant to pay default interest;

Action brought on 15 September 2006 — Dittert v
Commission

(Case F-109/06)

(2006/C 281/84)

Language of the case: French

— order the defendant to pay the costs.

Parties

Pleas in law and main arguments

Defendant: Commission of the European Communities

Applicant: Daniel Dittert
sented by: B. Cortese and C. Cortese, lawyers)

(Luxembourg, Luxembourg)

(repre-

From the time of his recruitment in Slovenia by the European
Parliament in September 2003, and prior, the applicant had a
stable non-marital relationship with his girl-friend, who became
his wife in August 2005. The applicant alleges that this rela-
tionship would be legally recognised by Slovenian law.

At the beginning of his employment at the European Parlia-
ment, the applicant asked for a household allowance, which
was refused on the ground that such an allowance was reserved
for married couples and same-sex non-marital relationships in
accordance with Article 1 of Annex VII of the Staff Regulations.
In May 2005 he applied for an installation allowance, which is
equal to two months' basic salary in the case of an official who
to one
is entitled to the household allowance, and equal
month's basic salary in other cases. He was granted the first
part of the installation allowance (which is paid in three parts,
one part per year) provided for singles. After his marriage, he
applied for the part of the installation allowance that is granted
to married staff but he was denied on the grounds the change
in his family status war posterior to the end of his probationary
period.

In support of his action, the applicant relies mainly on the
following pleas in law:

— first, invalidity of Article 1 (2) (c) and 1 (2) (d) of Annex VII
of the Staff Regulations and alternatively wrong interpreta-
tion of those articles by the defendant's administration due
to infringements of basic Community concepts such as free
movements of workers, citizenship of the European Union
and free movement of persons, prohibition of discrimina-
tion and unequal
treatment, and non-respect of basic
human rights and of principle of proportionality;

— Secondly, wrong interpretation of the date of the end of the
probationary period as an absolute definitive date for the
installation allowance although the payments themselves
are being carried out in a three years period.

Form of order sought

— annul the decision of the Appointing Authority to award a
number of priority points to the applicant which was insuf-
to allow his promotion in the 2005 promotion
ficient
procedure and not
to promote him in that promotion
procedure, as confirmed by the decision of 6 June 2006,
rejecting the applicant's complaint No R/73/06

— order the defendant to pay the costs

Pleas in law and main arguments

In support of his application, the applicant puts forward a
single plea: the contested decision is tainted by serious defects
resulting from a procedural irregularity and from an infringe-
ment of the principle of good administration and of the duty to
have regard for the welfare of officials.

Following a technical problem, which remains unexplained, the
applicant's file was not taken into account by his Directorate-
General when it was allocating priority points in the 2005
promotion procedure. This failure to take the applicant into
account constitutes a procedural flaw and an infringement of
the principle of good administration and of the duty to have
regard for the welfare of officials.

Those irregularities were such as to invalidate the 2005 promo-
tion procedure in so far as it concerned the applicant, and to
harm the applicant's interests, since he was allocated fewer
priority points than his own superiors (in this case,
the
Director-General of DG Competition) wished to give him, once
the technical problem had been detected. In effect, according to
the applicant, DG Competition assured him that, absent the
technical problem, it would have allocated to him a sufficient
number of points to ensure his promotion to grade AD9,
namely 7 points; the DG also expressly asked the A* Promotion
Committee to remedy the applicant's situation by allocating
that number of points to him. Notwithstanding this, the A*
Promotion Committee proposed the allocation of only 4
‘points awarded on appeal’ to the applicant, and the Appointing
Authority followed this advice, with the result that the appli-
cant was allocated an insufficient number of points to allow his
promotion to grade AD9 in the 2005 exercise.