Judgment No. 3661
1. The decision of 16 July 2013 is set aside.
2. Eurocontrol shall pay the complainant, as an addition to her transitional allowance, the sums and interest calculated as indicated in consideration 8, above.
3. The Organisation shall draw up and send to the complainant new payslips including the ATFCM allowance.
4. The Organisation shall pay the complainant costs in the amount of 3,000 euros.
The complainant challenges the amount of the transitional allowance paid to her following her admission to the early termination of service scheme.
complaint allowed; decision quashed; duress
In view of the serious disadvantages that the complainant would have suffered in this case had she renounced the possibility of admission to the ETS scheme, she cannot be deemed to have freely consented to sign the aforementioned memorandum of 13 October 2010. She is therefore right in saying that it was under duress that she gave an undertaking to Eurocontrol to accept the exclusion of the ATFCM allowance from the calculation of her transitional allowance and not to impugn this measure before the Tribunal.
The Tribunal will therefore ignore this undertaking, which must be considered null and void, without there being any need to examine whether the request that the complainant sign it was lawful, having regard to the Organisation’s duty to abide by the regulatory texts which it has itself laid down, in accordance with the principle tu patere legem quam ipse fecisti.
patere legem; duress
The fact that one Member State had notified the Organisation that it objected to these provisions does not prevent their application. Indeed, since this objection had not led to their amendment, the Organisation could not draw any legal consequences from it.