Case F-118/06: Action brought on 2 October 2006 — Di Bucci v Commission
Date: 2006-12-02
Institutions: Civil Service Tribunal
Subjects: European Commission, European official, action by staff, promotion, seniority, staff assessment

2.12.2006

EN

Official Journal of the European Union

C 294/67

Form of order sought

— annul

the decision of

the European Parliament of 30
January 2006, which informed the applicant of the decision
to reassign her from the Parliament's Italian Information
to the Information Directorate-
Office, based in Rome,
General, based in Brussels, and of the extension of her
temporary contract until 16 July 2006, instead of until 31
December 2009, as previously decided by the Parliament;

— order the defendant to pay, increased by default interest, all
of the monthly salaries connected to the applicant's position
of press attaché in Rome, from the date on which the
temporary contract should have been renewed, that is, from
1 January 2006, until 31 December 2009;

— order the defendant

to pay compensation for material
damage, estimated at EUR 240 414,42, and EUR 500 000
for non-material damage or such higher or lower amount
as the Court may determine;

— order the defendant to pay the costs.

— the fifth concerns infringement of the principles of propor-
tionality and of sound administration. First, the applicant
received no warning of the possibility of transfer at such
short notice. Second, the facts underlying the transfer were
not properly ascertained and the statutory provisions
relating to the behaviour for which the applicant is criti-
cised were not complied with;

— the sixth concerns infringement of the right of defence, in
particular the fact that the defendant, although having had
the opportunity to hear the applicant, did not follow up
her declarations in any way, and did not give the parties
any opportunity to set out their views on the matter;

— the seventh concerns infringement of the duty to provide
assistance set out in Article 24 of the Staff Regulations,
which requires the administration to protect officials even
where the person responsible for the matters regulated by
the provision in question is another official. Although the
facie
applicant
capable of
advanced prima
supporting her allegations,
the administration took no
adequate measures.

evidence

Action brought on 2 October 2006 — Di Bucci v Commis-
sion

Pleas in law and main arguments

(Case F-118/06)

The applicant invokes seven pleas in support of her action:

(2006/C 294/133)

— the first concerns infringement of the principle of legitimate
expectations, in that the administration gave the applicant
to believe, beyond any reasonable doubt, that her position
as press attaché with the Parliament's Rome Office would
be confirmed and that her contract would be extended until
31 December 2009;

— the second concerns infringement of essential procedural
requirements by reason of an insufficient and contradictory
statement of reasons. In particular, the arguments alleging
insufficiency of the applicant's professional capacities are
contradicted by the reports concerning her drawn up
pursuant to Article 43 of the Staff Regulations;

— the third concerns misuse of powers due to manifest error
of assessment of fundamental circumstances and inconsis-
tency. The reassignment decision is not based on profes-
sional incompetence or on the interests of the service but
on the desire for retaliation on the part of the applicant's
hierarchical superior;

— the fourth is based on breach of the duty of care in that,
the contested decision was
taking

according to the applicant,
adopted without
account of the employee's interests;

the necessary care and without

Language of the case: French

Parties

Applicant: Vittorio Di Bucci (Brussels, Belgium) (represented by:
M. van der Woude, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the merit list and the list of officials promoted to
grade A*12 in 2005, drawn up pursuant to Article 10(3)
and (4) of the General Provisions for Implementing Article
45 of the Staff Regulations and published in Administrative
Notice No 85-2005 of 23 November 2005 and,
in any
event, annul the decision not to include the applicant's
name in the list of promoted officials;

C 294/68

EN

Official Journal of the European Union

2.12.2006

— in so far as necessary, annul all of the measures which led
to the adoption of that decision and, in particular, the deci-
sions setting the number of points to be awarded to the
applicant;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official assigned to the Legal Service who has
regularly obtained one of the highest assessments, in terms of
merit points (MP), in his grade and in his department, invokes
firstly infringement of Article 45 of the Staff Regulations and
of the General Provisions for implementing that article, which
require merit to be the determining factor for the awarding of
Directorate-General
(DG) priority points and for promotion.
The non-promotion of the applicant is the result, first, of the
unlawful conduct which he has already challenged in Cases F-
98/05 (1) and T-312/04 (2); second, of the criteria for awarding
DG priority points within the Legal Service, which give priority
to the most senior officials in the grade, irrespective of their
merit; third, of certain flaws in the awarding of points, in par-
ticular by the Promotion Committee, to other officials.

The applicant further alleges that the contested measures also
infringe the principle of equal treatment and the principle that
include a
officials should have reasonable career prospects,
manifest error of assessment and constitute a misuse of powers.
Finally,
formal
they are marred by several procedural or
defects.

Finally, the applicant pleads the illegality of the abovemen-
tioned General Provisions, arguing as follows:

of MPs and DG priority points, Article 9 of and Annex I to
the General Provisions infringe Article 45 of the Staff Regu-
lations as well as the principle that officials should have
reasonable career prospects and the principle of equal treat-
ment;

— by providing for more favourable treatment for officials of
DGs or services that have fewer staff and for officials
seconded to the offices of members of the Commission,
Article 6(2) of the General Provisions infringes Article 45 of
the Staff Regulations as well as the principle that officials
should have reasonable career prospects and the principle
of equal treatment.

(1) OJ C 10 of 14.1.2006, p. 24 (case initially registered before the
Court of First Instance of the European Communities under number
T-381/05 and transferred to the Civil Service Tribunal of the Euro-
pean Communities by order of 15.12.2005).

(2) OJ C 262 of 23.10.2004, p. 45.

Action brought on 9 October 2006 — Kerstens v Commis-
sion

(Case F-119/06)

(2006/C 294/134)

Language of the case: French

— by omitting to take into account the level of responsibility
deployed and the use of different languages in the perfor-
mance of duties, the General Provisions infringe the new
version of Article 45 of the Staff Regulations;

Parties

— by providing that promotions are to be determined by the
unreasoned awarding of priority points, on the proposal of
each DG or the Promotion Committee, Articles 2, 4, 5, 6,
8, 9, 10, 12 and 13 of the General Provisions infringe in
particular Articles 25(2) and 45 of the Staff Regulations;

— by attributing to each DG a uniform quota of points per
official, Articles 4 and 6 of the General Provisions infringe
Article 45 of the Staff Regulations, the principle that offi-
cials should have reasonable career prospects, and the prin-
ciple of equal treatment;

— by providing for the award of transitional priority points
based essentially on seniority within a grade, Article 13(2)
of and Annex II to the General Provisions infringe Article
45 of the Staff Regulations;

— by providing for the awarding of priority points of the
Personnel Committee in recognition of certain supplemen-
tary tasks undertaken in the interest of
the institution
which are already taken into account during the awarding

Applicant: Petrus J. F. Kerstens (Overijse, Belgium) (represented
by: C. Mourato, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of 8 December 2005 of the Board of the
Office for Administration and Payment of Individual Entitle-
ments (PMO) amending the PMO's organisation chart;

— annul the express decision of the Appointing Authority of
6 July 2006 rejecting the applicant's complaint No R/
167/06;

— order the Commission to pay the applicant a sum assessed

on equitable principles at EUR 5 000as damages;

— order the Commission of the European Communities to

pay the costs.