Case T-691/20: Action brought on 18 November 2020 — Kühne v Parliament
Date: 2020-11-18
Institutions: General Court
Subjects: assistant, equal treatment, equality before the law, family, labour mobility, protection of privacy, reassignment, right to justice, staff regulations (EU)








C_2021028EN.01005702.xml










25.1.2021   


EN


Official Journal of the European Union


C 28/57






Action brought on 18 November 2020 — Kühne v Parliament
(Case T-691/20)
(2021/C 28/87)
Language of the case: German

Parties


Applicant: Verena Kühne (Berlin, Germany) (represented by: O. Schmechel, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:






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annul the defendant’s decision of 17 April 2020, supplemented on 21 April 2020, rejecting the applicant’s request of 19 December 2019 for a declaration as regards mobility;










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order the defendant to act accordingly in respect of the applicability of the applicant’s mobility;










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order the defendant to pay the costs;










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join the present case with Case T-468/20, pursuant to Article 68(1) of the Rules of Procedure.





Pleas in law and main arguments

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






1.


First plea in law: Decision rejecting the request has an adverse effect






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The decision rejecting the request adversely affects the applicant, within the meaning of the case-law deriving from the judgment in Deshormes, (1) since it contains a declaration that the applicant is subject to mobility, even if that declaration would only take effect by means of an implementing decision that, in relation to the date on which the decision rejecting the request was issued, lies in the future and that effect would thus be deferred in time.














2.


Second plea in law: Interest in the declaration






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The applicant has a continued interest in a declaration that her transfer cannot be ordered on the basis of the mobility scheme.














3.


Third plea in law: Breach of the duty to have regard for the welfare of officials






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The right to private and family life and the right of the daughter, a minor, to maintain on a regular basis a personal relationship and direct contact with both her parents would be infringed, since the applicant’s family would have to live separately, the daughter would remain in Berlin with the father and the applicant would move to Luxembourg alone.










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The right to equality before the law and non-discrimination would be infringed. The applicant, as a married EPLO (European Parliament Liaison Office) official and mother of a minor daughter, of whom she shares custody with her husband, is subject to mobility, on the basis of which she is to be transferred to Luxembourg. Separated and divorced officials of an EPLO with shared custody of a minor child remain exempt from mobility until the child has reached the age of majority, without there being any objective reason for this unequal treatment.














4.


Fourth plea in law: Disproportionate character of the transfer to another place of employment






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There was no balancing of the interests of the applicant with those of the defendant, although the defendant was obliged to do so in the context of its duty of good administration (Article 41 of the Charter of Fundamental Rights of the European Union).










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The protected interests of the applicant clearly outweigh the defendant’s interest in the transfer.










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The transfer from the EPLO in Berlin to the EPLO in Luxembourg is not in the interests of the service.














5.


Fifth plea in law: Improper use of discretion






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The defendant does not recognise its discretion and therefore has not exercised it.














6.


Sixth plea in law: Principle of the protection of legitimate expectations






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From the appointment of the applicant in 2001 until the adoption of the 2018 mobility decision of the Bureau of the European Parliament, the principle applied that AST officials, like the applicant, were not subject to mobility. This principle had been in force since the 1998 mobility decision and was reaffirmed in the 2002 and 2004 mobility decisions of the Bureau of the European Parliament.










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The applicant’s legitimate expectations in the continued exemption from mobility are protected. A change of rules therefore requires appropriate transitional arrangements and appropriate exceptions. The three-year transitional period provided for is inappropriate, since it does not remedy the separation of the applicant’s family. An exception for the applicant is missing.














7.


Seventh plea in law: Forfeiture






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The defendant forfeited the possibility of ordering the applicant’s mobility resulting in a change of place of employment since, by repeatedly exempting AST officials from mobility, it created the impression that the applicant was not to expect a change of place of employment.










(1)  Judgment of 1 February 1979, Deshormes v Commission (17/78, EU:C:1979:24).