CELEX: C2007/042/15
Language: en
Date: 2007-02-24 00:00:00
Title: Case C-495/06 P: Appeal brought on 1 December 2006 by Bart Nijs against the judgment of the Court of First Instance (Second Chamber) delivered on 3 October 2006 in Case T-171/05 Bart Nijs v Court of Auditors

24.2.2007   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 42/9
            
         Appeal brought on 1 December 2006 by Bart Nijs against the judgment of the Court of First Instance (Second Chamber) delivered on 3 October 2006 in Case T-171/05 Bart Nijs v Court of Auditors
   
   (Case C-495/06 P)
   (2007/C 42/15)
   Language of the case: French
   Parties
   
      Appellant: Bart Nijs (represented by: F. Rollinger, avocat)
   
      Other party to the proceedings: Court of Auditors of the European Communities
   Form of order sought
   The appellant claims that the Court should:
   
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               declare the appeal admissible and well-founded;
            
         
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               set aside the judgment of the Court of First Instance (Second Chamber) of 3 October 2006 in Case T-171/05 Bart Nijs v Court of Auditors;
            
         
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               annul the decisions which were the subject of the application in Case T-171/05, inter alia the decision establishing the definitive version of the appellant's staff report for the 2003 reporting period and the decision to promote Ms Y to the position of reviser in the Dutch unit of the Court of Auditor's translation service in 2004;
            
         
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               grant the application for compensation for the damage suffered, corresponding to the applicant's loss of income as against the situation in which he would have been placed had he been promoted;
            
         
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               order the Court of Auditors to pay the costs of the action, of the two sets of interim proceedings and of the present appeal.
            
         Pleas in law and main arguments
   By his appeal, the appellant essentially alleges that the Court of First Instance omitted to rule on the ninth plea in the application, concerning the Appointing Authority's failure to comply with its obligation to notify the European Anti-Fraud Office (OLAF) of the instances of intimidation and fraud adversely affecting the Community invalidity pensions scheme of which it had been informed. Had such an investigation been carried out, it would have revealed a number of breaches of procedure by the Appointing Authority and, in particular, the fact that Ms Y unlawfully temporarily carried out higher duties and the fact that the appellant's superior unlawfully carried out his/her duties. Likewise, the fact that the Appointing Authority did not inform the Appeal Committee of the personal interest which the superiors of the two officials concerned had in those officials' assessments casts doubt on the legality of the definitive version of the appellant's staff report.
   In the second place, the appellant disputes the Court of First Instance's statement that he did not provide any evidence such as to prove the accuracy of his claim that Ms Y was asked to carry out on a temporary basis the duties of a reviser or, at least, to make that claim plausible. Firstly, he was not actually aware of that temporary posting in March 2003 and that information, discovered more than two years later, therefore indeed constitutes a new fact, which means that his pleading of 16 December 2005 should be held admissible. Secondly, the 11 pleas put forward in the application, far from weakening the argument as to the unlawful temporary posting, have the completely opposite effect and actually strengthen it. However, the Court of First Instance did not comment on any of those pleas and based its reasoning on a single plea, which the appellant himself has never relied on.
   Lastly, the appellant maintains that the decisions not to promote him and to promote Ms Y must be regarded as constituting one indivisible decision which was indeed taken before the official date, namely on the application of Article 7(2) of the Staff Regulations to Ms Y's career in autumn 2003, and that the decision to promote Ms Y does constitute an act adversely affecting the appellant on the grounds that it changes his legal position and simultaneously constitutes an abuse of power, a disguised sanction and a measure which discriminates against him.