CELEX: 62017TN0493
Language: en
Date: 2017-08-03 00:00:00
Title: Case T-493/17: Action brought on 3 August 2017 — Stancu v ERCEA

25.9.2017   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 318/21
            
         Action brought on 3 August 2017 — Stancu v ERCEA
   (Case T-493/17)
   (2017/C 318/28)
   Language of the case: Italian
   
      Parties
   
   
      Applicant: Magdalena Catalina Stancu (Bucarest, Romania) (represented by: F. Elia, lawyer)
   
      Defendant: European Research Council Executive Agency (ERCEA) (Brussels, Belgium)
   
      Form of order sought
   
   The applicant claims that the Court should:
   
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               (A) On the merits: declare void/unlawful the act adversely affecting the applicant, consisting of the dismissal communicated orally to the employee on 10 January 2017, with immediate restoration of the employment relationship, and order the defendant to pay all remuneration that has accrued in the interim;
            
         
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               (B) On the merits: annul the act adversely affecting the applicant, consisting of the decision, dated 28 October 2016, to extend the probationary period, and rule that there was no agreement on a probationary period as from 1 November 2016;
            
         
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               (C) On the merits: declare void/unlawful the measures comprising the final administrative inquiry report CMS 16/035 dated 7 November 2016 and notified on 16 November 2016, on all of the grounds set out, and order the administrative inquiry report to be deleted from the Sysper system and from any other databases in the EU institutions;
            
         
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               (D) On the merits: declare void/unlawful the act adversely affecting the applicant consisting of the dismissal dated 22 December 2016 headed ‘note to the attention of Ms catalina stancu’ which reached the applicant on 24 January 2017, on all of the grounds set out, with immediate restoration of the employment relationship and an order requiring the defendant to pay compensation consisting of remuneration that has accrued between the date of dismissal and the date of delivery of the judgment. In the alternative, in the event that the applicant cannot be reintegrated into her work post, order ERCEA to pay compensation for lost earnings up to the expiry of the contract (January 2018) in the amount of EUR 39 000;
            
         
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               (E) On the merits: in any event, order ERCEA to pay to the employee the sum of EUR 300 000, or any different amount, higher or lower, as the Court may deem appropriate, as compensation for the serious damage to the applicant’s image and to her personal and professional reputation.
            
         
      Pleas in law and main arguments
   
   In support of her action, the applicant relies on four pleas in law.
   
               1.
            
            
               The dismissal, delivered orally and without reasons being given, infringes Article 25 of the Staff Regulations, which provides that ‘any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which is based …’; written notification to the employee ensures that the latter is made aware of decisions relating to her employment relationship.
            
         
               2.
            
            
               The extension of the probationary period infringes Article 84 of the Conditions of Employment of other Servants (CEOS), paragraph 3 of which provides that the probationary period may be extended in exceptional circumstances ‘… referred to in the first paragraph …’, this being a specific reference that does not justify an extension of indeterminate and uncertain duration. Furthermore, that extension infringes Article 84(2) of those Conditions, which provides that the probationary period may be terminated at any time before its normal end, allowing eight days for submissions on the proposal of dismissal and — in any event — ‘… giving … one month’s notice …’;
            
         
               3.
            
            
               The administrative inquiry report is unlawful, given that it is based on an email sent by the employee, the contents of which — as the other party acknowledges — were altered, and because it expresses merely subjective doubts as to the authenticity of documents submitted by the employee, without ordering any technical checks to be conducted;
            
         
               4.
            
            
               The employer’s decision of 22 December 2016 is manifestly void since it seeks to terminate an employment relationship that no longer existed, that relationship having come to an end following the oral dismissal. Furthermore: (A) the dismissal of the employee for failing successfully to complete the probationary period is unlawful given that, as of 1 November 2016, there was no longer any probationary period; and (B) the unlawful nature of the assertions in the administrative inquiry report made on the basis of the assessment of the failure successfully to complete the probationary period renders the act of dismissal at issue totally and absolutely arbitrary and unlawful.