Case F-73/07: Action brought on 27 July 2007 — Doktor v Council
Date: 2007-10-06
Institutions: Civil Service Tribunal
Subjects: Council of the European Union, action by staff, dismissal, regulations for civil servants, traineeship

6.10.2007

EN

Official Journal of the European Union

C 235/29

Pleas in law and main arguments

Pleas in law and main arguments

In support of his arguments,
following three pleas in law:

the applicant

relies on the

(1) absolute failure to state grounds also by reason of a total
failure to make preliminary inquiries inasmuch as it cannot
be understood why the Community did not grant the appli-
cant 100 % reimbursement of medical expenses, but only
reimbursement in part. It is clear, moreover, that the admin-
istration failed properly to open a file relating to the appli-
cant's claim of 20 June 2005, if necessary by taking into
account all of the information provided by him;

(2) infringement of the law on the basis that the applicant's
medical condition was such as to give rise, within the
meaning and for the purposes of Article 72 of the Staff
Regulations, to a right in his part to 100 % reimbursement
of medical expenses;

(3) breach of the obligation to have due regard to the welfare of
officials and of the principle of sound administration, given
that it is apparent from the matter as a whole that the
defendant
failed to have due regard to the applicant's
interests and did several acts and related deeds which, as a
result of
their grave unlawfulness and the considerable
period of time during which they were committed, consti-
tuted a breach of that obligation and principle, the latter,
moreover, being enshrined in Article 41 of the Charter of
Fundamental Rights of the European Union.

The applicant, after having worked for the Commission from
1 May 2001 to 15 September 2006 as a member of the local
staff and member of the auxiliary staff under 14 successive sepa-
rate fixed-term contracts of employment, was recruited as a
member of the contract staff for the period from 16 September
2006 to 15 September 2009. Having established during the
medical visit prior
the applicant was
suffering from a sickness, the Appointing Authority applied the
proviso laid down in Article 100 of the CEOS and Article 1 of
Annex VIII to the Staff Regulations.

to recruitment

that

In support of her appeal, the applicant first submits that by
limiting the duration of her contract as a member of
the
contract staff, the Commission infringed the principle of stabi-
lity of the employment relationship such as it follows from the
general principles of law relating to the protection of workers.
In so far as it is necessary, she pleads that Article 88 of the
CEOS is unlawful.

In addition, the applicant claims that the proviso clause not to
grant her guaranteed benefits in respect of invalidity or death
fails to take account of the scope of Article 100 of the CEOS,
inasmuch as the administration is imposing on her a new exclu-
sion period of 5 years even though she has been in the
Commission's service since 1 May 2001. In so far as it is neces-
sary, she pleads that Article 100 of the CEOS is unlawful.

Action brought on 12 July 2007 — U v Commission

Action brought on 27 July 2007 — Doktor v Council

(Case F-69/07)

(2007/C 235/53)

Language of the case: French

(Case F-73/07)

(2007/C 235/54)

Language of the case: French

Parties

Applicant: U (Brussels, Belgium) (represented by: S. Orlandi, A.
Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the Commission's decisions fixing the conditions of
employment of the applicant as a member of the contract
staff in so far as they provide for, first, the application of the
proviso laid down in Article 100 of
the Conditions of
Employment of Other Servants (‘the CEOS’) and in Article 1
of Annex VIII to the Staff Regulations of Officials of the
European Communities
and,
(‘the
secondly, the duration of the contract to be the period from
16 September 2006 to 15 September 2009;

Staff Regulations’),

— order the defendant to pay the costs.

Parties

Applicant: František Doktor (Bratislava, Slovakia) (represented by:
S. Rodrigues, R. Albelice and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union

Form of order sought

— annul the decision to dismiss the applicant at the end of his
probationary period adopted on 24 October 2006 by the
appointing authority of the Council, taken together with the
decision adopted on 16 May 2007 by the appointing
authority dismissing the complaint brought by the applicant;

— direct the appointing authority as to the consequences of
the annulment of the contested decisions and in particular
the possibility of completing a second probationary period
in another service or the prolongation of the probationary
period with the transfer to a post without head-of-unit
responsibility at the end of which there would be a new
assessment of the applicant's qualifications;

C 235/30

EN

Official Journal of the European Union

6.10.2007

— order the defendant to compensate the applicant for the loss
suffered, both professional and financial (salary and asso-
ciated benefits which he would have
received from
re-employment
1 November 2006 to the date of his
resulting from the annulment of the contested decision) and
non-pecuniary (by reference to an indicative sum of
EUR 50 000);

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action the applicant relies on four pleas in law,
the first of which alleges (i) infringement of Article 34 of the
Staff Regulations of Officials of
the European Communities,
(ii) breach of the duty of have regard to the welfare of officials
and (iii) breach of the principle of sound administration. In par-
ticular, his probationary period took place in conditions which
were unusual and contrary to various internal procedural rules.

The second plea in law alleges breach of the obligation to state
reasons, in that the decision to dismiss did not contain explana-
tions and relied on statements which were contradictory and
less favourable than those which appeared in the first proba-
tionary report.

in that, first,

In the third plea in law, the applicant submits that the decision
to dismiss was disproportionate and vitiated by a manifest error
of assessment,
it did not take into account the
results of certain personality tests and, secondly, a negative
evaluation as head of unit, even were it to be well founded,
should have led only to transfer to a post without such respon-
sibilities.

In his fourth plea in law, the applicant relies on breach of the
rights of the defence and of the principle of equal treatment, in
that the decision to dismiss was taken on the basis of reports
adopted without his first being heard and of which the last was
finalised in breach of the applicable procedural rules.

Action brought on 29 July 2007 — Brown and Volpato v
Commission

(Case F-75/07)

(2007/C 235/55)

Language of the case: French

Form of order sought

— annul

of

the

the

decision

the
European Communities published in Administrative Notices
No 55-2006 of 17 November 2006 inasmuch as
it
promoted the applicants to grade AD9, step 1, under the
2006 promotion exercise;

Commission

of

— in so far as is necessary, annul the Commission decisions of
23 April 2007 inasmuch as they dismissed the complaints
brought by the applicants;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants, Commission officials, challenge the decision to
promote them, under the 2006 promotion exercise, to grade
AD9, a new grade inserted, since 1 May 2004 between grades
AD8 (formerly A7) and AD10 (formerly A6). They submit that
they should have been promoted not to grade AD9 but to grade
AD10, following the example of what had been done in the
2004 promotion exercise in respect of officials who,
like the
applicants, were in grade A7 on 30 April 2004 and were
eligible for promotion to the next grade, A6.

The applicants rely on very similar pleas in law to the first and
third pleas in law relied on in Case F-105/06 (1).

(1) OJ C 281, 18.11.2006, p. 45.

Action brought on 17 July 2007 — Birkhoff v Commission

(Case F-76/07)

(2007/C 235/56)

Language of the case: German

Parties

Applicant: Gerhard Birkhoff (Weitnau, Germany) (represented by:
K. Hösgen, lawyer)

Defendant: Commission of the European Communities

Parties

Applicants: Colin Brown (Brussels, Belgium) and Alberto Volpato
(represented by: B. Cortese and C. Cortese,
(Moscow, Russia)
lawyers)

Form of order sought

— annul the Appointing Authority's decision of 18 April 2007

concerning the applicant's complaint (No R/16/07);

Defendant: Commission of the European Communities

— order the defendant to pay the costs.