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- Judgment 3660
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his transfer, complaining that he was ousted from his job, without notice or prior consultation, and assigned to a “fictitious job”.
- ... Eurocontrol
122nd Session Judgment No. 3660
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr E. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 October 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 28 March and Eurocontrol's surrejoinder
of 4 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
122nd Session Judgment No. 3660
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr E. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 October 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 28 March and Eurocontrol's surrejoinder
of 4 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his transfer. He complains that he ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
122nd Session Judgment No. 3660
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr E. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 October 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 28 March and Eurocontrol's surrejoinder
of 4 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his transfer. He complains that he was
ousted from his job, without ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
122nd Session Judgment No. 3660
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr E. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 October 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 28 March and Eurocontrol's surrejoinder
of 4 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his transfer. He complains that he was
ousted from his job, without notice or prior consultation, and assigned
to a "fictitious job".
At the material ...
- ... of the Directorate of Resources were informed by
an e-mail of 25 June 2013 that the complainant would henceforth
be working on the study full time and that another official would be
performing his former duties ad interim.
By a decision of the same date, the Head of the People Management
Division, to whom the Director General had delegated authority, notified
the complainant that, in accordance with
Article 7 of the Staff Regulations
governing officials of the Eurocontrol Agency — which gives the
Director General the authority to transfer an official, solely in the
interest of the service, to a post in his function group corresponding to
his grade — he had been transferred within the Directorate of Resources
and assigned with immediate effect to a generic post of Principal Expert
at the same grade and step.
On 7 August 2013 the complainant lodged an internal complaint in
which he alleged
that the "transfer and appointment procedures ...
- ... 25 June 2013, compensation for moral injury, the reimbursement
of all future medical expenses and costs.
In the complaint which he filed with the Tribunal on 21 October
2013, the complainant impugns the implied decision to reject this internal
complaint and requests his reinstatement in the job which he held before
25 June 2013 "without a break in seniority or promotion", moral damages
in the amount of 100,000 euros and 7,500 euros in costs. He also asks
that Eurocontrol be ordered to defray all "medical and assistance costs"
incurred to date or in the future as a result of the decision of 25 June
2013.
Judgment No. 3660
3
In its reply Eurocontrol submits that the complaint should be
dismissed as unfounded.
In the meantime, on 13 December 2013, the Joint Committee for
Disputes had delivered its opinion. In its view, the decision to transfer
the complainant had been decided hastily and without prior consultation, ...
- ... implied decision to reject this internal
complaint and requests his reinstatement in the job which he held before
25 June 2013 "without a break in seniority or promotion", moral damages
in the amount of 100,000 euros and 7,500 euros in costs. He also asks
that Eurocontrol be ordered to defray all "medical and assistance costs"
incurred to date or in the future as a result of the decision of 25 June
2013.
Judgment No. 3660
3
In its reply Eurocontrol submits that the complaint should be
dismissed as unfounded.
In the meantime, on 13 December 2013, the Joint Committee for
Disputes had delivered its opinion. In its view, the decision to transfer
the complainant had been decided hastily and without prior consultation,
which had placed the complainant in an "embarrassing" situation.
Moreover, Eurocontrol had not shown why this decision was necessary
or appropriate. The Committee had therefore recommended that the
complainant ...
- ... as a result of the decision of 25 June
2013.
Judgment No. 3660
3
In its reply Eurocontrol submits that the complaint should be
dismissed as unfounded.
In the meantime, on 13 December 2013, the Joint Committee for
Disputes had delivered its opinion. In its view, the decision to transfer
the complainant had been decided hastily and without prior consultation,
which had placed the complainant in an "embarrassing" situation.
Moreover, Eurocontrol had not shown why this decision was necessary
or appropriate. The Committee had therefore recommended that the
complainant should be reinstated in the job which he held before
25 June 2013, but that his other claims should be dismissed.
On 17 March 2014 the Director General informed the complainant
that he did not share the Committee's opinion and that he had decided
to dismiss his internal complaint as, in his opinion, the decision of
25 June 2013, which
was based ...
- ... he had decided
to dismiss his internal complaint as, in his opinion, the decision of
25 June 2013, which
was based
solely
on the interest of the service, was
sufficiently detailed and was consistent with the Tribunal's case law,
especially with regard to the right to be heard.
In his rejoinder, to which he appends the opinion of the Joint
Committee for Disputes and the decision of 17 March 2014, the
complainant presses his claims.
In its surrejoinder Eurocontrol maintains its position.
CONSIDERATIONS
1.
The complaint, which was initially directed against an implied
decision to dismiss the complainant's internal complaint, must be deemed
to impugn the explicit decision of 17 March 2014, taken in the course
of the proceedings, by which the Director General upheld the decision
of 25 June 2013 to transfer the complainant with immediate effect.
2.
The complainant first submits that no reasons were given
for the decision ...
- ... the opportunity of a fair hearing. (See Judgments 2226,
under 20, and 1234, under 19.)
The Tribunal finds that the plea that the complainant's right to be
heard has been breached is well founded, because although he had been
contacted about participating in the study, there is no evidence that
he was ever informed — and given an opportunity to express his views
on this matter — that his participation would entail his transfer from
a head of service post which, as Eurocontrol itself admits, suited him
perfectly, to a post with only vaguely defined duties.
5.
Furthermore, it is plain that the manner in which the decision
was conveyed to the complainant, who had been in the service of the
Organisation for nearly 20 years at the material time and whose
excellent performance had been recognised by it, was likely to hurt,
shock and upset him.
6.
The Tribunal therefore finds
that the complainant's
immediate
transfer was ...
- ... the service of the
Organisation for nearly 20 years at the material time and whose
excellent performance had been recognised by it, was likely to hurt,
shock and upset him.
6.
The Tribunal therefore finds
that the complainant's
immediate
transfer was decided in breach of his right to be heard and of the
obligation to state the grounds for a decision embodied in Article 25 of
the Staff Regulations. In addition, by acting as it did on 25 June 2013,
Eurocontrol committed a serious breach of its duty of care and undermined
the complainant's dignity.
It follows that the complaint must be allowed on these grounds
and that the decision of 17 March 2014 must be set aside, without there
being any need to examine the other pleas regarding the lawfulness of
that decision.
Judgment No. 3660
6
7.
The complainant also alleges that he was the victim of
psychological harassment.
It is unnecessary for ...
- ... that he was the victim of
psychological harassment.
It is unnecessary for the Tribunal to determine whether this plea is
well founded
having regard to Article 12(a)(3) of the Staff Regulations,
which defines psychological harassment as improper conduct that takes
place over a period and is repetitive or systematic.
However, the Tribunal
observes that the complainant entered this plea at the outset
in his internal
complaint of 7 August 2013 and that Eurocontrol gave no consideration
whatsoever to it,
arguing
that it the complainant
ought
to have
submitted
a harassment complaint in accordance with the existing provisions.
It must be recalled that the Tribunal "has consistently stressed
the serious nature of allegations of harassment in the workplace and
the need for international organisations to investigate such allegations
promptly and thoroughly. This is a function of the organisation's duty
of care ...
- ... need for international organisations to investigate such allegations
promptly and thoroughly. This is a function of the organisation's duty
of care to its staff members to uphold their dignity. […] It is in relation to
this obligation that the Tribunal […] stated that international organisations
have to ensure that an internal body that is charged with investigating
and reporting on claims of harassment is properly functioning." (See
Judgment 3337, under 11 and 12.)
Eurocontrol's duty of care required it to forward the harassment
complaint
on its own initiative
to the bodies which, it says, are competent
to entertain it, or at least to provide the complainant with guidance as
to the procedure to be followed, since the
legal possibilities it mentions
are far from clear to the servants concerned. In failing to do so, the
Organisation neglected its duties. In the circumstances of this case,
there are no grounds for referring the case back ...
- ... Tribunal cannot accept the complainant's claim for the
defrayal of all "medical and assistance expenses" incurred to date or in
the future as a result of the decision of 25 June
2013, since these expenses
are unsubstantiated and no figures are given.
11.
As he largely succeeds, the complainant is entitled to costs
which will be set at 5,000 euros.
DECISION
For the above reasons,
1.
The decision of 17 March 2014 is set aside.
2.
Eurocontrol shall pay the complainant moral damages in the
amount of 20,000 euros.
3.
Eurocontrol shall also pay him 5,000 euros in costs.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 27 April 2016, Mr Claude
Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and
Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Judgment No. 3660
8
Delivered in public in Geneva ...
- ... expenses" incurred to date or in
the future as a result of the decision of 25 June
2013, since these expenses
are unsubstantiated and no figures are given.
11.
As he largely succeeds, the complainant is entitled to costs
which will be set at 5,000 euros.
DECISION
For the above reasons,
1.
The decision of 17 March 2014 is set aside.
2.
Eurocontrol shall pay the complainant moral damages in the
amount of 20,000 euros.
3.
Eurocontrol shall also pay him 5,000 euros in costs.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 27 April 2016, Mr Claude
Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and
Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Judgment No. 3660
8
Delivered in public in Geneva on 6 July 2016.
(Signed)
C
LAUDE
R
OUILLER
P
ATRICK
F
RYDMAN
F
ATOUMATA ...
- Judgment 3659
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the fact that she was not promoted in the 2013 promotion exercise.
- ... Eurocontrol
122nd Session Judgment No. 3659
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 13 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's
surrejoinder of 17 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
D.-E. (No. 5)
v.
Eurocontrol
122nd Session Judgment No. 3659
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 13 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's
surrejoinder of 17 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
D.-E. (No. 5)
v.
Eurocontrol
122nd Session Judgment No. 3659
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 13 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's
surrejoinder of 17 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2013 promotion exercise. ...
- ... translation,
the French text alone
being
authoritative.
D.-E. (No. 5)
v.
Eurocontrol
122nd Session Judgment No. 3659
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 13 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's
surrejoinder of 17 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered
into force at Eurocontrol, ...
- ...
surrejoinder of 17 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered
into force at Eurocontrol, the details of which are to be found in
Judgment 3189. At that juncture, non-operational staff categories B
and C were replaced, for a two-year transitional period, by categories
B* and C*. On 1 July 2010, at the end of this transitional period, these
two categories were merged in the Assistant group (AST), which
comprises 11 grades (AST1 to AST11) arranged in various grade brackets.
At the material time, the complainant, an official who had previously been
Judgment ...
- ... AST5 in the AST2-AST5 bracket.
Office Notice No. 1/13 was published on 7 February 2013. In essence
it announced that a procedure for grade promotion would be organised
for 2013 and, for that purpose, the list of staff eligible for promotion
would comprise those officials and servants who in 2013 had at least
two years' seniority in their grade and were not yet in the last grade of
their respective career brackets as defined in their job descriptions.
The list of Eurocontrol staff eligible for promotion was published on
8 February 2013. As the complainant's name was not on it, she lodged
an internal complaint on 12 April. She requested the cancellation of
this list and the holding of a promotion exercise in which her merits
would undergo comparative examination.
The Joint Committee for Disputes, to which several internal
complaints — including that of the complainant — had been referred,
delivered its opinion on 13 December 2013. It unanimously ...
- ... internal complaint should
be allowed in accordance with the "principle of legitimate expectations"
and the "right to a career", whereas the other two recommended that it
should be dismissed on the grounds that the complainant had reached
the last grade in her grade bracket and was thus not eligible for
promotion under Rule of Application No. 4 concerning the procedure
for grade promotion provided for in Article 45 of the Staff Regulations
governing officials of the Eurocontrol Agency. The complainant was
informed by a memorandum of 17 March 2014, which constitutes the
impugned decision, that in accordance with the opinion of the latter
two members of the Joint Committee for Disputes, the Director General
had dismissed her internal complaint.
The complainant filed her complaint with the Tribunal on 13 June
2014. She asks it to set aside the impugned decision, the list of staff
eligible for promotion in the 2013 exercise and all the subsequent ...
- ...
The complainant filed her complaint with the Tribunal on 13 June
2014. She asks it to set aside the impugned decision, the list of staff
eligible for promotion in the 2013 exercise and all the subsequent
Judgment No. 3659
3
decisions adopted during that exercise, including the list of staff members
who were promoted. She also requests the payment of compensation
in the amount of 1,500 euros for moral injury and 5,000 euros in costs.
Eurocontrol submits that the complaint is irreceivable in that the
complainant has not exhausted internal means of redress in respect of the
claim that the list of officials promoted in 2013 should be cancelled, and
because that claim is tantamount to asking the Tribunal to order her
promotion. It considers that all the other claims are unfounded. Lastly,
Eurocontrol asks the Tribunal to join this complaint with six other cases
concerning the 2012 or 2013 promotion exercises.
CONSIDERATIONS ...
- ... requests the payment of compensation
in the amount of 1,500 euros for moral injury and 5,000 euros in costs.
Eurocontrol submits that the complaint is irreceivable in that the
complainant has not exhausted internal means of redress in respect of the
claim that the list of officials promoted in 2013 should be cancelled, and
because that claim is tantamount to asking the Tribunal to order her
promotion. It considers that all the other claims are unfounded. Lastly,
Eurocontrol asks the Tribunal to join this complaint with six other cases
concerning the 2012 or 2013 promotion exercises.
CONSIDERATIONS
1.
The complainant challenges the failure to include her name
on the list of staff eligible for promotion in the 2013 exercise, which
was published on 8 February 2013.
2.
Eurocontrol requests the joinder of this complaint with those
of three other complainants. However, as these three cases raise legal
issues that are partly different, ...
- ... that claim is tantamount to asking the Tribunal to order her
promotion. It considers that all the other claims are unfounded. Lastly,
Eurocontrol asks the Tribunal to join this complaint with six other cases
concerning the 2012 or 2013 promotion exercises.
CONSIDERATIONS
1.
The complainant challenges the failure to include her name
on the list of staff eligible for promotion in the 2013 exercise, which
was published on 8 February 2013.
2.
Eurocontrol requests the joinder of this complaint with those
of three other complainants. However, as these three cases raise legal
issues that are partly different, the Tribunal will not grant this request
(see, in particular, Judgment 3620, under 2).
3.
Eurocontrol also requests the joinder of this complaint with
an earlier complaint filed by the complainant. This request has become
moot, since the Tribunal has already ruled on that other complaint in
Judgment 3495.
4.
The ...
- ...
1.
The complainant challenges the failure to include her name
on the list of staff eligible for promotion in the 2013 exercise, which
was published on 8 February 2013.
2.
Eurocontrol requests the joinder of this complaint with those
of three other complainants. However, as these three cases raise legal
issues that are partly different, the Tribunal will not grant this request
(see, in particular, Judgment 3620, under 2).
3.
Eurocontrol also requests the joinder of this complaint with
an earlier complaint filed by the complainant. This request has become
moot, since the Tribunal has already ruled on that other complaint in
Judgment 3495.
4.
The complainant seeks the setting aside of the decision by
which the Director General dismissed her internal complaint requesting
the cancellation of the list of staff members eligible for promotion in
the 2013 exercise and the opening of a promotion exercise ...
- ... cited by the complainant
are consistent with the aims of the administrative reform carried out
in 2008, namely to end the practice of automatic promotion while not
ruling out the possibility of making exceptions in order to enable
particularly well-qualified officials to move up to the next grade in
another bracket within
their function group, in this case to AST6.
7.
In the structure introduced by the administrative reform
which entered into force at Eurocontrol on 1 July 2008, officials are
classed in hierarchical grade brackets, each of which corresponds to a
clearly defined category of functions. In the same way that an official
who has reached the pinnacle of her or his career can no longer hope
for promotion, a Eurocontrol official who has reached
the top of her or
Judgment No. 3659
5
his grade bracket does not, in principle, have any possibility of
moving into a higher grade.
8.
The ...
- ... to move up to the next grade in
another bracket within
their function group, in this case to AST6.
7.
In the structure introduced by the administrative reform
which entered into force at Eurocontrol on 1 July 2008, officials are
classed in hierarchical grade brackets, each of which corresponds to a
clearly defined category of functions. In the same way that an official
who has reached the pinnacle of her or his career can no longer hope
for promotion, a Eurocontrol official who has reached
the top of her or
Judgment No. 3659
5
his grade bracket does not, in principle, have any possibility of
moving into a higher grade.
8.
The exception to this rule allowed by Article 45 of the Staff
Regulations is a matter for the discretion of the Director General,
which he must exercise within the limits established by the Rules of
Application of the Staff Regulations (see Judgment 3666, also delivered
this ...
- Judgment 3658
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of the transitional allowance paid to him following his admission to the early termination of service scheme.
- ... Eurocontrol
122nd Session Judgment No. 3658
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. C. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
31 October 2013, Eurocontrol's reply of 7 February 2014, the
complainant's rejoinder of 20 May and Eurocontrol's surrejoinder of
22 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions ...
- ... Eurocontrol) on
31 October 2013, Eurocontrol's reply of 7 February 2014, the
complainant's rejoinder of 20 May and Eurocontrol's surrejoinder of
22 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the amount of the transitional allowance ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C.
v.
Eurocontrol
122nd Session Judgment No. 3658
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. C. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
31 October 2013, Eurocontrol's reply of 7 February 2014, the
complainant's rejoinder of 20 May and Eurocontrol's surrejoinder of
22 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the amount of the transitional allowance
paid to him following his admission ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C.
v.
Eurocontrol
122nd Session Judgment No. 3658
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. C. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
31 October 2013, Eurocontrol's reply of 7 February 2014, the
complainant's rejoinder of 20 May and Eurocontrol's surrejoinder of
22 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the amount of the transitional allowance
paid to him following his admission to the early termination of service
(ETS) scheme.
At the material time, ...
- ... the facts of the case may be summed up as follows:
The complainant challenges the amount of the transitional allowance
paid to him following his admission to the early termination of service
(ETS) scheme.
At the material time, the complainant, as a member
of the operational
staff of the Centre Flow Management Unit (CFMU), received a functional
allowance (hereinafter "the ATFCM allowance") under Article 69b(2)
of the Staff Regulations governing officials of the Eurocontrol Agency.
By Office Notice No. 22/10 of 22 June 2010, the Director General
informed Eurocontrol staff of the introduction of the ETS scheme and
the entry into force on the same date of Annex XVI to the Staff Rules,
containing temporary provisions relating to the ETS. Under Article 4 of
Judgment No. 3658
2
that annex, an official who was admitted to the ETS scheme would stop
work, would cease to enjoy rights to remuneration and would instead
be ...
- ... transitional allowance
paid to him following his admission to the early termination of service
(ETS) scheme.
At the material time, the complainant, as a member
of the operational
staff of the Centre Flow Management Unit (CFMU), received a functional
allowance (hereinafter "the ATFCM allowance") under Article 69b(2)
of the Staff Regulations governing officials of the Eurocontrol Agency.
By Office Notice No. 22/10 of 22 June 2010, the Director General
informed Eurocontrol staff of the introduction of the ETS scheme and
the entry into force on the same date of Annex XVI to the Staff Rules,
containing temporary provisions relating to the ETS. Under Article 4 of
Judgment No. 3658
2
that annex, an official who was admitted to the ETS scheme would stop
work, would cease to enjoy rights to remuneration and would instead
be paid a transitional allowance which, in accordance with Article 1(1)
of the appendix to the annex, ...
- ... State had objected to this. On 16 July 2013 the Principal
Director of Resources, acting on behalf of the Director General, notified
the complainant that he had decided to follow the recommendation
of the latter two members of the Committee and to dismiss his internal
complaint. That is the impugned decision.
The complainant asks the Tribunal to set aside the decision of
16 July 2013 and his payslips for July 2012 and the following months.
He also asks that Eurocontrol be ordered, as from 1 July 2012, to include
the ATFCM in the calculation of his transitional allowance and to pay
him the sum thus due together with interest at 8 per cent per annum.
He also claims 5,000 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
irreceivable since, by signing the internal memorandum of 14 October
2010, the complainant renounced any right of appeal against the decision
not to include the ATFCM allowance in the calculation ...
- ... the Committee and to dismiss his internal
complaint. That is the impugned decision.
The complainant asks the Tribunal to set aside the decision of
16 July 2013 and his payslips for July 2012 and the following months.
He also asks that Eurocontrol be ordered, as from 1 July 2012, to include
the ATFCM in the calculation of his transitional allowance and to pay
him the sum thus due together with interest at 8 per cent per annum.
He also claims 5,000 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
irreceivable since, by signing the internal memorandum of 14 October
2010, the complainant renounced any right of appeal against the decision
not to include the ATFCM allowance in the calculation of his transitional
allowance. Subsidiarily, it submits that the complaint is groundless. In
its surrejoinder Eurocontrol requests the joinder of this complaint and
the complaint filed on the same matter by another official.
CONSIDERATIONS ...
- ... the sum thus due together with interest at 8 per cent per annum.
He also claims 5,000 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
irreceivable since, by signing the internal memorandum of 14 October
2010, the complainant renounced any right of appeal against the decision
not to include the ATFCM allowance in the calculation of his transitional
allowance. Subsidiarily, it submits that the complaint is groundless. In
its surrejoinder Eurocontrol requests the joinder of this complaint and
the complaint filed on the same matter by another official.
CONSIDERATIONS
1.
The complainant, by signing the internal memorandum of
14 October 2010 on 18 October 2010, undertook not to bring any appeal
proceedings challenging the fact that the ATFCM allowance he was
receiving under Article 69b(2) of the Staff Regulations would not be
included in the determination of his transitional allowance in the event
that he ...
- ... complaint filed on the same matter by another official.
CONSIDERATIONS
1.
The complainant, by signing the internal memorandum of
14 October 2010 on 18 October 2010, undertook not to bring any appeal
proceedings challenging the fact that the ATFCM allowance he was
receiving under Article 69b(2) of the Staff Regulations would not be
included in the determination of his transitional allowance in the event
that he was admitted to the ETS scheme.
2.
Eurocontrol has requested the joinder of this complaint with
that filed by another complainant. As the conditions for such a joinder are
not met, the Tribunal will not accede to this request.
3.
Eurocontrol submits that the complaint is irreceivable since,
by signing the above-mentioned memorandum, the complainant waived
his right of appeal. The complainant considers that his complaint is
Judgment No. 3658
4
receivable. In particular, he contends that ...
- ... appeal
proceedings challenging the fact that the ATFCM allowance he was
receiving under Article 69b(2) of the Staff Regulations would not be
included in the determination of his transitional allowance in the event
that he was admitted to the ETS scheme.
2.
Eurocontrol has requested the joinder of this complaint with
that filed by another complainant. As the conditions for such a joinder are
not met, the Tribunal will not accede to this request.
3.
Eurocontrol submits that the complaint is irreceivable since,
by signing the above-mentioned memorandum, the complainant waived
his right of appeal. The complainant considers that his complaint is
Judgment No. 3658
4
receivable. In particular, he contends that had he not forgone the
inclusion of the ATFCM allowance in the calculation of his transitional
allowance, he would never have been admitted to the ETS scheme. Thus
he "had no other choice but to sign [this] ...
- ... scheme. Thus
he "had no other choice but to sign [this] memo[randum]" and he was
therefore "forced" to do so.
4.
In view of the serious disadvantages that the complainant
would have suffered in this case had he renounced the possibility of
admission to the ETS scheme, he cannot be deemed to have freely
consented to sign the aforementioned memorandum of 14 October 2010.
He is therefore right in saying that it was under duress that he gave
an undertaking to Eurocontrol to accept the exclusion of the ATFCM
allowance from the calculation of his 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 signed 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 ...
- ... The sums thus paid to the
complainant shall bear interest at the rate of 5 per cent per annum from
due dates until the date of payment.
10.
The Organisation will have to draw up and send to the
complainant new payslips including the ATFCM allowance.
11.
As the complainant succeeds, he is entitled to costs, which the
Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The decision of 16 July 2013 is set aside.
2.
Eurocontrol shall pay the complainant, as an addition to his
transitional allowance, the sums and interest calculated as indicated
in consideration 9, above.
3.
The Organisation shall draw up and send to the complainant new
payslips including the ATFCM allowance.
Judgment No. 3658
6
4.
The Organisation shall pay the complainant costs in the amount of
3,000 euros.
In witness of this judgment, adopted on 29 April 2016, Mr Claude
Rouiller, ...
- Judgment 3657
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the fact that he was not promoted in the 2013 promotion exercise.
- ... Eurocontrol
122nd Session Judgment No. 3657
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr B. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
14 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's surrejoinder
of 3 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written ...
- ... Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
B. (No. 6)
v.
Eurocontrol
122nd Session Judgment No. 3657
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr B. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
14 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's surrejoinder
of 3 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
B. (No. 6)
v.
Eurocontrol
122nd Session Judgment No. 3657
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr B. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
14 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's surrejoinder
of 3 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted in
the 2013 promotion exercise. ...
- ... Tribunal
Registry's translation,
the French text alone
being
authoritative.
B. (No. 6)
v.
Eurocontrol
122nd Session Judgment No. 3657
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr B. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
14 June 2014, Eurocontrol's reply of 26 September 2014, the
complainant's rejoinder of 6 January 2015 and Eurocontrol's surrejoinder
of 3 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted in
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, ...
- ... surrejoinder
of 3 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted in
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, the details of which are to be found in Judgment
3189. At that juncture, non-operational staff categories B and C were
replaced, for a two-year transitional period, by categories B* and C*.
On 1 July 2010, at the end of this transitional period, these two categories
were merged in the Assistant group (AST), which comprises 11 grades
(AST1 to AST11) arranged in various grade brackets. At the material
time, the complainant, an official who had previously been in B category, ...
- ... No. 3657
2
Office Notice No. 1/13 was published on 7 February 2013. In essence
it announced that a procedure for grade promotion would be organised
for 2013 and, for that purpose, the list of staff eligible for promotion
would comprise those officials and servants who in 2013 had at least
two years' seniority in their grade and were not yet in the last grade of
their respective career brackets as defined in their job descriptions.
The list of Eurocontrol staff eligible for promotion was published on
8 February 2013. As the complainant's name was not on it, he lodged
an internal complaint on 16 April. He requested the cancellation of
this list and the holding of a promotion exercise in which his merits
would undergo comparative examination.
The Joint Committee for Disputes, to which several internal
complaints — including that of the complainant — had been referred,
delivered its opinion on 13 December 2013. Two of its ...
- ... the internal complaint should be allowed in accordance
with the "principle of legitimate expectations" and the "right to a career",
whereas the other two recommended that it should be dismissed on the
grounds that the complainant had reached the last grade in his grade
bracket and was thus not eligible for promotion under Rule of Application
No. 4 concerning the procedure for grade promotion provided for in
Article 45 of the Staff Regulations governing officials of the Eurocontrol
Agency. The complainant was informed by a memorandum of 17 March
2014, which constitutes the impugned decision, that in accordance
with the opinion of the latter two members of the Joint Committee for
Disputes, the Director General had dismissed his internal complaint.
The complainant filed his complaint with the Tribunal on 14 June
2014. He asks it to set aside the impugned decision, the list of staff
eligible for promotion in the 2013 exercise and all the subsequent ...
- ... Director General had dismissed his internal complaint.
The complainant filed his complaint with the Tribunal on 14 June
2014. He asks it to set aside the impugned decision, the list of staff
eligible for promotion in the 2013 exercise and all the subsequent
decisions adopted during that exercise, including the list of staff members
who were promoted. He also requests the payment of compensation in
the amount of 1,500 euros for moral injury and 5,000 euros in costs.
Eurocontrol submits that the complaint is irreceivable in part.
In this regard, it contends that insofar as the complainant relies on the
unlawfulness of Rule of Application No. 35 — concerning job
management — the matter is res judicata, since the Tribunal has already
ruled on this issue in Judgment 3230, delivered on the complainant's
Judgment No. 3657
3
second complaint. In addition, it submits that he has not exhausted
internal means of redress with respect ...
- ... has already
ruled on this issue in Judgment 3230, delivered on the complainant's
Judgment No. 3657
3
second complaint. In addition, it submits that he has not exhausted
internal means of redress with respect to the claim that the list of
officials promoted in 2013 should be cancelled, and that this claim is
tantamount to asking the Tribunal to order the complainant's promotion.
It considers that all the other claims are unfounded. Lastly, Eurocontrol
asks the Tribunal to join this complaint with six other cases concerning
the 2012 or 2013 promotion exercises.
CONSIDERATIONS
1.
The complainant challenges the non-inclusion of his name on
the list of staff members eligible for promotion in the 2013 exercise,
which was published on 8 February 2013.
2.
Eurocontrol requests the joinder of this complaint with those
of three other complainants. However, as these three cases raise legal
issues that are ...
- ...
tantamount to asking the Tribunal to order the complainant's promotion.
It considers that all the other claims are unfounded. Lastly, Eurocontrol
asks the Tribunal to join this complaint with six other cases concerning
the 2012 or 2013 promotion exercises.
CONSIDERATIONS
1.
The complainant challenges the non-inclusion of his name on
the list of staff members eligible for promotion in the 2013 exercise,
which was published on 8 February 2013.
2.
Eurocontrol requests the joinder of this complaint with those
of three other complainants. However, as these three cases raise legal
issues that are partly different, the Tribunal will not grant this request
(see, in particular, Judgment 3620, under 2).
3.
Eurocontrol also requests the joinder of this complaint with
an earlier complaint filed by the complainant. This request has become
moot, since the Tribunal has already ruled on that other complaint in
Judgment 3404.
4.
The ...
- ...
1.
The complainant challenges the non-inclusion of his name on
the list of staff members eligible for promotion in the 2013 exercise,
which was published on 8 February 2013.
2.
Eurocontrol requests the joinder of this complaint with those
of three other complainants. However, as these three cases raise legal
issues that are partly different, the Tribunal will not grant this request
(see, in particular, Judgment 3620, under 2).
3.
Eurocontrol also requests the joinder of this complaint with
an earlier complaint filed by the complainant. This request has become
moot, since the Tribunal has already ruled on that other complaint in
Judgment 3404.
4.
The complainant seeks the setting aside of the decision by
which the Director General dismissed his internal complaint requesting
the cancellation of the list of staff members eligible for promotion in
the 2013 exercise and the opening of a promotion exercise ...
- ... texts cited by the complainant are consistent
with the aims of the administrative reform carried out in 2008, namely
to end the practice of automatic promotion while not ruling out the
possibility of making exceptions in order to enable particularly well-
qualified officials to move up to the next grade in another bracket
within their function group, in this case to AST11.
7.
In the structure introduced by the administrative reform
which entered into force at Eurocontrol on 1 July 2008, officials are
classed in hierarchical grade brackets, each of which corresponds to a
clearly defined category of functions. In the same way that an official
who has reached the pinnacle of her or his career can no longer hope
for promotion, a Eurocontrol official who has reached
the top of her or
his grade bracket does not, in principle, have any possibility of moving
into a higher grade.
8.
The exception to this rule allowed by Article 45 of ...
- ... to move up to the next grade in another bracket
within their function group, in this case to AST11.
7.
In the structure introduced by the administrative reform
which entered into force at Eurocontrol on 1 July 2008, officials are
classed in hierarchical grade brackets, each of which corresponds to a
clearly defined category of functions. In the same way that an official
who has reached the pinnacle of her or his career can no longer hope
for promotion, a Eurocontrol official who has reached
the top of her or
his grade bracket does not, in principle, have any possibility of moving
into a higher grade.
8.
The exception to this rule allowed by Article 45 of the Staff
Regulations is a matter for the discretion of the Director General,
Judgment No. 3657
5
which he must exercise within the limits established by the Rules of
Application of the Staff Regulations (see Judgment 3666, also delivered
this ...
- Judgment 3656
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application for execution of Judgment 3230.
- ... Eurocontrol
(Application for execution)
122nd Session Judgment No. 3656
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the application for execution of Judgment 3230 filed
by Mr B. B. on 1 April 2014 and corrected on 8 May, the reply of the
European Organisation for the Safety of Air Navigation (Eurocontrol) of
5 September, the complainant's rejoinder of 24 December 2014 and
Eurocontrol's surrejoinder of 9 April 2015;
Considering Article II, paragraph 5, ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
B. (No. 5)
v.
Eurocontrol
(Application for execution)
122nd Session Judgment No. 3656
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the application for execution of Judgment 3230 filed
by Mr B. B. on 1 April 2014 and corrected on 8 May, the reply of the
European Organisation for the Safety of Air Navigation (Eurocontrol) of
5 September, the complainant's rejoinder of 24 December 2014 and
Eurocontrol's surrejoinder of 9 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
On 28 April 2009, during the transitional period that followed the
entry into force on 1 July 2008 ...
- ... alone
being authoritative.
B. (No. 5)
v.
Eurocontrol
(Application for execution)
122nd Session Judgment No. 3656
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the application for execution of Judgment 3230 filed
by Mr B. B. on 1 April 2014 and corrected on 8 May, the reply of the
European Organisation for the Safety of Air Navigation (Eurocontrol) of
5 September, the complainant's rejoinder of 24 December 2014 and
Eurocontrol's surrejoinder of 9 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
On 28 April 2009, during the transitional period that followed the
entry into force on 1 July 2008 of the wide-ranging administrative reform
at Eurocontrol, details of which are to be ...
- ... 24 December 2014 and
Eurocontrol's surrejoinder of 9 April 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
On 28 April 2009, during the transitional period that followed the
entry into force on 1 July 2008 of the wide-ranging administrative reform
at Eurocontrol, details of which are to be found in Judgment 3189,
the complainant was assigned to the generic post of Senior Technical
Assistant, in job bracket B*8-B*10. On 29 June 2009 he requested
promotion to grade B*11, on the grounds that his profile matched that
of the generic post of Principal Technical Assistant in job bracket B*11.
He was advised by a memorandum of 15 January 2010 that his request
would be submitted to the Committee in charge of job management
monitoring ...
- ... notified of the decision of 12 July 2010,
he could legitimately take it to be a decision refusing his request for
promotion, because it confirmed his grade. The Tribunal set aside the
decision dismissing his internal complaint and referred the case back
to the Organisation, which was required "to submit to the competent
bodies the complainant's request for promotion to grade AST11".
In response to his queries of 10 July and 17 September regarding
the measures which Eurocontrol intended to take pursuant to Judgment
3230,
the complainant was informed by a letter dated 20 September 2013
that the Director General had decided to submit the question of his
promotion to the Committee in charge of job management monitoring
and, if appropriate, to the Promotion Board.
On 27 September 2013 the Directorate of Resources initiated the
consultation procedure with the Committee in charge of job management
monitoring and on 12 February 2014 it examined ...
- ...
of the level of his post was
to be submitted to the Committee in charge of job management monitoring.
The complainant declined the invitation to the interview, since he was
not satisfied with the answers he had received to his request for details
of the company in question.
Judgment No. 3656
3
In the meantime, on 1 April 2014, the complainant had filed this
application for execution with the Tribunal,
requesting
that Eurocontrol
be ordered to execute Judgment 3230 and to pay him 5,000 euros in
compensation for moral injury and 3,000 euros in costs.
On 5 September 2014 Eurocontrol filed its reply to the application
for execution. It raised an objection to receivability on the grounds that
internal means of redress had not been exhausted and it asked the Tribunal
to take note of the measures which it had adopted in pursuance of
Judgment 3230 and to dismiss the complainant's pecuniary claims.
The ...
- ... to the interview, since he was
not satisfied with the answers he had received to his request for details
of the company in question.
Judgment No. 3656
3
In the meantime, on 1 April 2014, the complainant had filed this
application for execution with the Tribunal,
requesting
that Eurocontrol
be ordered to execute Judgment 3230 and to pay him 5,000 euros in
compensation for moral injury and 3,000 euros in costs.
On 5 September 2014 Eurocontrol filed its reply to the application
for execution. It raised an objection to receivability on the grounds that
internal means of redress had not been exhausted and it asked the Tribunal
to take note of the measures which it had adopted in pursuance of
Judgment 3230 and to dismiss the complainant's pecuniary claims.
The external company delivered its report on 6 October 2014 and
on 24 October the Committee in charge of job management monitoring
forwarded its opinion to ...
- ... in pursuance of
Judgment 3230 and to dismiss the complainant's pecuniary claims.
The external company delivered its report on 6 October 2014 and
on 24 October the Committee in charge of job management monitoring
forwarded its opinion to the Director General, recommending that the
complainant's post should remain in job bracket AST8-AST10.
On 24 December 2014 the complainant filed his rejoinder,
maintaining all his claims.
In its surrejoinder of 9 April 2015, Eurocontrol asserts that
Judgment 3230 has been executed, as on 26 January 2015 the complainant
was informed that the Director General had decided to endorse the
opinion of the Committee in charge of job management monitoring and
therefore to maintain his post at grade AST10. It asks the Tribunal
to examine the receivability of the application and to dismiss the
complainant's claims as unfounded.
CONSIDERATIONS
1.
In Judgment 3230 the Tribunal set aside the Organisation's ...
- ... his post at grade AST10. It asks the Tribunal
to examine the receivability of the application and to dismiss the
complainant's claims as unfounded.
CONSIDERATIONS
1.
In Judgment 3230 the Tribunal set aside the Organisation's
decision dismissing an internal complaint lodged by the complainant
against the refusal to grant him the promotion to which, in his opinion,
the description of his functions entitled him after the reorganisation
of functions within Eurocontrol.
The case was referred back to the
Organisation in order that it might submit the disputed request for
promotion to the competent bodies. In his application for execution
the complainant contends that Eurocontrol has not taken the necessary
steps to submit his request to the aforementioned bodies.
Judgment No. 3656
4
By a decision of 26 January 2015, which was taken and
communicated to the complainant while his application for execution
was ...
- ... the Organisation's
decision dismissing an internal complaint lodged by the complainant
against the refusal to grant him the promotion to which, in his opinion,
the description of his functions entitled him after the reorganisation
of functions within Eurocontrol.
The case was referred back to the
Organisation in order that it might submit the disputed request for
promotion to the competent bodies. In his application for execution
the complainant contends that Eurocontrol has not taken the necessary
steps to submit his request to the aforementioned bodies.
Judgment No. 3656
4
By a decision of 26 January 2015, which was taken and
communicated to the complainant while his application for execution
was pending, the Director General dismissed his request for promotion
on the basis of the opinion
issued on 14 October 2014 of the Committee
in charge of job management monitoring, an advisory body set up under
Article ...
- ...
communicated to the complainant while his application for execution
was pending, the Director General dismissed his request for promotion
on the basis of the opinion
issued on 14 October 2014 of the Committee
in charge of job management monitoring, an advisory body set up under
Article 7 of Rule of Application No. 35 concerning job management as
from 1 July 2010 (the end of the transitional period following the entry
into force of the administrative reform at Eurocontrol).
2.
It is unnecessary to determine whether this new decision
essentially renders the application for execution moot. Nor
is it necessary
to examine the objection to receivability raised by Eurocontrol, which
submits that, before resorting to the Tribunal, the complainant ought to
have initiated internal
appeal proceedings against the "decisions" contained
in the letter of 20 September 2013 in which the Organisation announced
the measures that it was going ...
- ...
in charge of job management monitoring, an advisory body set up under
Article 7 of Rule of Application No. 35 concerning job management as
from 1 July 2010 (the end of the transitional period following the entry
into force of the administrative reform at Eurocontrol).
2.
It is unnecessary to determine whether this new decision
essentially renders the application for execution moot. Nor
is it necessary
to examine the objection to receivability raised by Eurocontrol, which
submits that, before resorting to the Tribunal, the complainant ought to
have initiated internal
appeal proceedings against the "decisions" contained
in the letter of 20 September 2013 in which the Organisation announced
the measures that it was going to take to execute Judgment 3230.
Indeed, as will be shown below, the application for execution was
completely unfounded from the outset.
3.
The Tribunal's judgments carry the authority of res judicata ...
- ... to this end.
Judgments
must be executed within a reasonable period
of time. In order to ascertain whether this is the case, all the circumstances
of the case must be taken into account, especially the nature and the
scope of the action which the organisation is required to take (see, in
particular, Judgments 2684, under 4 and 6, and 3066, under 6).
4.
Judgment 3230 was delivered on 4 July 2013. Before the end
of September, the complainant was informed by Eurocontrol that it was
embarking upon consultations with the Committee in charge of job
management monitoring. The description of the complainant's functions
was examined on 12 February 2014. This means that, when the application
for execution was filed on 1 April 2014, the procedure was following
the normal course laid down in the applicable rules and, having regard
to its specific purpose, it had not been excessively delayed.
Judgment No. 3656
5
While ...
- ... Committee in charge of job
management monitoring. The description of the complainant's functions
was examined on 12 February 2014. This means that, when the application
for execution was filed on 1 April 2014, the procedure was following
the normal course laid down in the applicable rules and, having regard
to its specific purpose, it had not been excessively delayed.
Judgment No. 3656
5
While there is no evidence in the file to show that Eurocontrol
informed the complainant of all the steps it was taking to execute
the judgment, this does not signify that it thus acted in breach of the
principle of good faith. On the contrary, it must be found that there was
nothing to prevent the complainant from inquiring as to what progress
had been made
with these deliberations before
complaining to the
Tribunal
of an alleged failure to act on the part of the Organisation.
5.
It follows from the foregoing that ...
- Judgment 3655
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the fact that she was not promoted in the 2013 promotion exercise.
- ... Eurocontrol
122nd Session Judgment No. 3655
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. C. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
14 September 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 25 April and Eurocontrol's surrejoinder of
8 August 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the ...
- ... Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
B.
v.
Eurocontrol
122nd Session Judgment No. 3655
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. C. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
14 September 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 25 April and Eurocontrol's surrejoinder of
8 August 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
B.
v.
Eurocontrol
122nd Session Judgment No. 3655
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. C. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
14 September 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 25 April and Eurocontrol's surrejoinder of
8 August 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2013 promotion ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being
authoritative.
B.
v.
Eurocontrol
122nd Session Judgment No. 3655
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. C. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
14 September 2013, Eurocontrol's reply of 24 January 2014, the
complainant's rejoinder of 25 April and Eurocontrol's surrejoinder of
8 August 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force ...
- ... of
8 August 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, details of which are to be found in Judgment 3189.
At that juncture, non-operational staff categories B and C were replaced,
for a two-year transitional period, by categories B* and C*. On 1 July
2010, at the end of this transitional period, these two categories were
merged in the Assistant group (AST), which comprises 11 grades
(AST1 to AST11) arranged in various grade brackets. At the material
Judgment No. 3655
2
time, the complainant, an official ...
- ... AST5 in the AST2-AST5 bracket.
Office Notice No. 1/13 was published on 7 February 2013. In essence
it announced that a procedure for grade promotion would be organised
for 2013 and, for that purpose, the list of staff eligible for promotion
would comprise those officials and servants who in 2013 had at least
two years' seniority in their grade and were not yet in the last grade of
their respective career brackets as defined in their job descriptions.
The list of Eurocontrol staff eligible for promotion was published on
8 February 2013. As the complainant's name was not on it, she lodged
an internal complaint on 26 April. She asked the Director General to
"confirm [her] eligibility for promotion up to grade AST7" in accordance
with the provisions of Article 9(1) of Part 2 of Annex XIII to the Staff
Regulations governing officials of the Eurocontrol Agency and to
redress the injury that she considered she had suffered during 2013.
When the ...
- ... of
their respective career brackets as defined in their job descriptions.
The list of Eurocontrol staff eligible for promotion was published on
8 February 2013. As the complainant's name was not on it, she lodged
an internal complaint on 26 April. She asked the Director General to
"confirm [her] eligibility for promotion up to grade AST7" in accordance
with the provisions of Article 9(1) of Part 2 of Annex XIII to the Staff
Regulations governing officials of the Eurocontrol Agency and to
redress the injury that she considered she had suffered during 2013.
When the complainant filed her complaint with the Tribunal on
14 September 2013, she had not yet received a reply to her internal
complaint. She impugns what she takes to be an implied decision to
reject it and she requests her "re-inclusion" in the list of staff members
eligible for promotion in the 2013 exercise. She also claims damages
for the moral and financial injury resulting, in ...
- ... be allowed in accordance with the "principle
of legitimate expectations" and the "right to a career", whereas the other
two recommended that it should be dismissed on the grounds that the
complainant had reached the last grade in her grade bracket and was
thus not eligible for promotion under Rule of Application No. 4 concerning
the procedure for grade promotion provided for in Article 45 of the
Staff Regulations.
Judgment No. 3655
3
Eurocontrol submits that the complaint is irreceivable, in that the
complainant's claim for compensation for the financial injury stemming
from her non-promotion in 2013 is tantamount to asking the Tribunal
to order it to promote her. It adds that, insofar as the complainant claims
compensation for injury due to the alleged freezing of her career, her
complaint is irreceivable as it is time-barred and because the issue of
her being classed in one of the grade brackets in the AST category ...
- ... for the financial injury stemming
from her non-promotion in 2013 is tantamount to asking the Tribunal
to order it to promote her. It adds that, insofar as the complainant claims
compensation for injury due to the alleged freezing of her career, her
complaint is irreceivable as it is time-barred and because the issue of
her being classed in one of the grade brackets in the AST category is
already the subject of another complaint pending before the Tribunal.
Eurocontrol asks the Tribunal to dismiss all the other claims as
unfounded. Lastly, it requests the joinder of this complaint with two
other cases concerning the same issue.
The complainant was informed by a memorandum of 17 March
2014 that her internal complaint had been dismissed by the Director
General.
In her rejoinder, filed the following month, she presses all her
claims and asks that her name be included in the list of staff eligible
for promotion in the 2014 exercise. ...
- ... all the other claims as
unfounded. Lastly, it requests the joinder of this complaint with two
other cases concerning the same issue.
The complainant was informed by a memorandum of 17 March
2014 that her internal complaint had been dismissed by the Director
General.
In her rejoinder, filed the following month, she presses all her
claims and asks that her name be included in the list of staff eligible
for promotion in the 2014 exercise.
In its surrejoinder Eurocontrol asks the Tribunal to dismiss the
complainant's claim regarding the 2014 promotion exercise because
internal means of redress have not been exhausted.
CONSIDERATIONS
1.
The complainant challenges the failure to include her name
on the list of staff eligible for promotion in the 2013 exercise, which
was published on 8 February 2013.
The complaint, which was originally directed against an implied
decision to reject her internal complaint, must now be deemed to ...
- ... the failure to include her name
on the list of staff eligible for promotion in the 2013 exercise, which
was published on 8 February 2013.
The complaint, which was originally directed against an implied
decision to reject her internal complaint, must now be deemed to
impugn the explicit decision of 17 March 2014, taken in the course of
the proceedings, by which the Director General confirmed the non-
inclusion of her name on the above-mentioned list.
2.
Eurocontrol requests the joinder of this complaint with two
other cases forming the subject of Judgments 3664 and 3667, also
delivered this day. However, as these three cases raise legal issues that
Judgment No. 3655
4
are partly different, the Tribunal will not grant this request (see, in
particular, Judgment 3620, under 2).
3.
The complainant first submits that Eurocontrol has not complied
with the terms of Article 45(1) and (2) of the Staff Regulations. ...
- ... the non-
inclusion of her name on the above-mentioned list.
2.
Eurocontrol requests the joinder of this complaint with two
other cases forming the subject of Judgments 3664 and 3667, also
delivered this day. However, as these three cases raise legal issues that
Judgment No. 3655
4
are partly different, the Tribunal will not grant this request (see, in
particular, Judgment 3620, under 2).
3.
The complainant first submits that Eurocontrol has not complied
with the terms of Article 45(1) and (2) of the Staff Regulations.
Moreover, she considers that Eurocontrol is tending to create
discrimination by excluding persons who are in the top grade of their
bracket from the promotion exercise and not proposing any other
means of rewarding their merits.
4.
Article 45 of the Staff Regulations establishes the principle
of exclusion which is challenged by the complainant, who has reached
the highest grade ...
- ... two
other cases forming the subject of Judgments 3664 and 3667, also
delivered this day. However, as these three cases raise legal issues that
Judgment No. 3655
4
are partly different, the Tribunal will not grant this request (see, in
particular, Judgment 3620, under 2).
3.
The complainant first submits that Eurocontrol has not complied
with the terms of Article 45(1) and (2) of the Staff Regulations.
Moreover, she considers that Eurocontrol is tending to create
discrimination by excluding persons who are in the top grade of their
bracket from the promotion exercise and not proposing any other
means of rewarding their merits.
4.
Article 45 of the Staff Regulations establishes the principle
of exclusion which is challenged by the complainant, who has reached
the highest grade in the bracket covering her current job. This principle
is consistent with the aims of the administrative reform carried out ...
- ... reached
the highest grade in the bracket covering her current job. This principle
is consistent with the aims of the administrative reform carried out in
2008, namely to end the practice of automatic promotion while not ruling
out the possibility of making exceptions in order to enable particularly
well-qualified officials to move up to a higher grade in the next bracket.
5.
In the structure introduced by the administrative reform which
entered into force at Eurocontrol on 1 July 2008, officials are classed
in hierarchical grade brackets, each of which corresponds to a clearly
defined category of functions. In the same way that an official who
has reached the pinnacle of her or his career can no longer hope for
promotion, a Eurocontrol official who has reached
the top of her or his
grade bracket does not, in principle, have any possibility of moving
into a higher grade.
6.
The exception to this rule allowed by Article 45 of ...
- ... order to enable particularly
well-qualified officials to move up to a higher grade in the next bracket.
5.
In the structure introduced by the administrative reform which
entered into force at Eurocontrol on 1 July 2008, officials are classed
in hierarchical grade brackets, each of which corresponds to a clearly
defined category of functions. In the same way that an official who
has reached the pinnacle of her or his career can no longer hope for
promotion, a Eurocontrol official who has reached
the top of her or his
grade bracket does not, in principle, have any possibility of moving
into a higher grade.
6.
The exception to this rule allowed by Article 45 of the Staff
Regulations is a matter for the discretion of the Director General,
which he must exercise within the limits established by the Rules of
Application of the Staff Regulations (see Judgment 3666, also delivered
this day). There is nothing in the file to suggest ...
- ... rejoinder.
However, as the Tribunal has consistently held, a complainant may
not, in her or his rejoinder, enter new claims not contained in her or
his original complaint (see, for example, Judgment 1768, under 5, or
Judgment 2996, under 6). This new claim must therefore be dismissed.
10.
It may be concluded from the above that the complaint must
be dismissed in its entirety, without there being any need to rule on the
objections to receivability raised by Eurocontrol.
Judgment No. 3655
6
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 6 May 2016, Mr Claude
Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and
Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered in public in Geneva on 6 July 2016.
(Signed)
C
LAUDE
R
OUILLER
P
ATRICK
F
RYDMAN
F
ATOUMATA
D
IAKITÉ
D
RAŽEN ...
- Judgment 3573
121st Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: After taking early retirement, the complainant refused to return his special identity card and the special registration plates of his vehicle.
- ... Eurocontrol
121st Session Judgment No. 3573
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr H. É. R. P. against
the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 19 April 2013 and corrected on 21 May,
Eurocontrol's reply of 23 August, the complainant's rejoinder of
4 October, Eurocontrol's surrejoinder of 13 December 2013, the
complainant's additional submissions of 20 April 2014 and Eurocontrol's
final ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P. (No. 2)
v.
Eurocontrol
121st Session Judgment No. 3573
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr H. É. R. P. against
the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 19 April 2013 and corrected on 21 May,
Eurocontrol's reply of 23 August, the complainant's rejoinder of
4 October, Eurocontrol's surrejoinder of 13 December 2013, the
complainant's additional submissions of 20 April 2014 and Eurocontrol's
final observations thereon of 12 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied; ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P. (No. 2)
v.
Eurocontrol
121st Session Judgment No. 3573
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr H. É. R. P. against
the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 19 April 2013 and corrected on 21 May,
Eurocontrol's reply of 23 August, the complainant's rejoinder of
4 October, Eurocontrol's surrejoinder of 13 December 2013, the
complainant's additional submissions of 20 April 2014 and Eurocontrol's
final observations thereon of 12 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed ...
- ... translation,
the French text alone
being authoritative.
P. (No. 2)
v.
Eurocontrol
121st Session Judgment No. 3573
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr H. É. R. P. against
the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 19 April 2013 and corrected on 21 May,
Eurocontrol's reply of 23 August, the complainant's rejoinder of
4 October, Eurocontrol's surrejoinder of 13 December 2013, the
complainant's additional submissions of 20 April 2014 and Eurocontrol's
final observations thereon of 12 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
After taking early retirement, the complainant refused to ...
- ...
Eurocontrol
121st Session Judgment No. 3573
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr H. É. R. P. against
the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 19 April 2013 and corrected on 21 May,
Eurocontrol's reply of 23 August, the complainant's rejoinder of
4 October, Eurocontrol's surrejoinder of 13 December 2013, the
complainant's additional submissions of 20 April 2014 and Eurocontrol's
final observations thereon of 12 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
After taking early retirement, the complainant refused to return
his special identity card and the special registration plates of his vehicle.
At the material time ...
- ... before leaving the organisation, he met the conditions for
retaining his special registration plates and special identity card. On the
same day he received the answer that, although they did not say so, the
"texts" to which he was referring concerned only officials admitted to
the ETS scheme who lived in Belgium, as had been explained to him
during a seminar and an individual interview. He was further informed
that the French Ministry of Foreign Affairs required Eurocontrol to
return special identity cards at the end of an official's service and that
exchanging the special registration plates, which are linked to the
identity card, for ordinary number plates was therefore obligatory.
On 18 September 2012 the complainant wrote to the Director
General claiming that he was entitled to retain his special identity card
and special registration plates and complaining that he could not avail
himself of the same rights as officials who had been ...
- ... loss of some 7,000 to 8,000 euros and he
asked that a solution be found that would not "put [him] at a financial
disadvantage". On 20 November 2012 the Director General informed
the complainant that he could not grant his request. On 7 December
2012 the complainant submitted an internal complaint. On 19 April 2013
he filed a complaint with the Tribunal, in which he impugns the implied
decision to dismiss the internal complaint and asks the Tribunal to order
Eurocontrol to apply "the rules which it issues", to redress the financial
and moral injury which he has suffered and to award him costs.
Judgment No. 3573
3
In its reply, Eurocontrol argues that the complaint should be
dismissed as groundless. It informs the Tribunal that the Joint Committee
for Disputes issued its opinion on 16 May 2013. Two of its members
considered that, having regard to the contents of the ETS Information
Guide, the complainant's internal ...
- ... that he could not grant his request. On 7 December
2012 the complainant submitted an internal complaint. On 19 April 2013
he filed a complaint with the Tribunal, in which he impugns the implied
decision to dismiss the internal complaint and asks the Tribunal to order
Eurocontrol to apply "the rules which it issues", to redress the financial
and moral injury which he has suffered and to award him costs.
Judgment No. 3573
3
In its reply, Eurocontrol argues that the complaint should be
dismissed as groundless. It informs the Tribunal that the Joint Committee
for Disputes issued its opinion on 16 May 2013. Two of its members
considered that, having regard to the contents of the ETS Information
Guide, the complainant's internal complaint was well founded. The
other two members, however, recommended that it should be dismissed,
since the obligation to return the special identity card and special
registration plates stemmed ...
- ...
dismissed as groundless. It informs the Tribunal that the Joint Committee
for Disputes issued its opinion on 16 May 2013. Two of its members
considered that, having regard to the contents of the ETS Information
Guide, the complainant's internal complaint was well founded. The
other two members, however, recommended that it should be dismissed,
since the obligation to return the special identity card and special
registration plates stemmed from national legislation. Eurocontrol adds
that the Principal Director of Resources, acting on behalf of the Director
General, informed the complainant by a letter of 16 July 2013 that
he had decided to dismiss his internal complaint as unfounded, in
accordance with the recommendation of the latter two members of the
Committee.
In his rejoinder, the complainant reiterates his claims that he should
be granted compensation for financial and moral injury, as well as costs.
In its surrejoinder, Eurocontrol ...
- ... adds
that the Principal Director of Resources, acting on behalf of the Director
General, informed the complainant by a letter of 16 July 2013 that
he had decided to dismiss his internal complaint as unfounded, in
accordance with the recommendation of the latter two members of the
Committee.
In his rejoinder, the complainant reiterates his claims that he should
be granted compensation for financial and moral injury, as well as costs.
In its surrejoinder, Eurocontrol informs the Tribunal that on
21 August 2013 the French Ministry of Foreign Affairs asked the
Administration to send it the complainant's special identity card,
together with documentary evidence that his vehicle had been "duly
registered", at its earliest convenience.
As the complainant had accomplished the necessary formalities at
the beginning of 2014, Eurocontrol wrote to him on 28 February 2014
proposing that he withdraw his complaint since, in its opinion, it had ...
- ...
be granted compensation for financial and moral injury, as well as costs.
In its surrejoinder, Eurocontrol informs the Tribunal that on
21 August 2013 the French Ministry of Foreign Affairs asked the
Administration to send it the complainant's special identity card,
together with documentary evidence that his vehicle had been "duly
registered", at its earliest convenience.
As the complainant had accomplished the necessary formalities at
the beginning of 2014, Eurocontrol wrote to him on 28 February 2014
proposing that he withdraw his complaint since, in its opinion, it had
become moot. The complainant advised the Tribunal by an e-mail of
20 April 2014 that he wished to maintain his
complaint.
CONSIDERATIONS
1.
The complainant contends that Eurocontrol breached its own
"rules" concerning the right of officials admitted to the ETS scheme
to retain their special identity card and special registration plates. This
criticism ...
- ... that his vehicle had been "duly
registered", at its earliest convenience.
As the complainant had accomplished the necessary formalities at
the beginning of 2014, Eurocontrol wrote to him on 28 February 2014
proposing that he withdraw his complaint since, in its opinion, it had
become moot. The complainant advised the Tribunal by an e-mail of
20 April 2014 that he wished to maintain his
complaint.
CONSIDERATIONS
1.
The complainant contends that Eurocontrol breached its own
"rules" concerning the right of officials admitted to the ETS scheme
to retain their special identity card and special registration plates. This
criticism is based on the fact that the ETS Information Guide and
Annex 10 thereto stated that officials admitted to ETS could retain
their special identity card and special registration plates.
Judgment No. 3573
4
2.
While Eurocontrol acknowledges that this guide did contain
information ...
- ...
1.
The complainant contends that Eurocontrol breached its own
"rules" concerning the right of officials admitted to the ETS scheme
to retain their special identity card and special registration plates. This
criticism is based on the fact that the ETS Information Guide and
Annex 10 thereto stated that officials admitted to ETS could retain
their special identity card and special registration plates.
Judgment No. 3573
4
2.
While Eurocontrol acknowledges that this guide did contain
information to that effect, although in fact it did not apply to officials
assigned to Brétigny-sur-Orge, it emphasises that on two occasions
— during a seminar held in May 2012 and an individual interview on
8 August 2012 — it drew the complainant's attention to the fact that
"the documents which had been distributed focused on the provisions
applicable to officials working in Brussels".
3.
With regard to the rules ...
- ...
assigned to Brétigny-sur-Orge, it emphasises that on two occasions
— during a seminar held in May 2012 and an individual interview on
8 August 2012 — it drew the complainant's attention to the fact that
"the documents which had been distributed focused on the provisions
applicable to officials working in Brussels".
3.
With regard to the rules applying to special identity cards
and special registration plates, the information guide drawn up by
Eurocontrol could only reproduce the Host State's legislation, which,
in the present case, did not allow the complainant to receive the
advantages which he is claiming. While the Tribunal considers it
regrettable that Eurocontrol disseminated an information guide
containing incorrect statements regarding the rights of officials, it
notes that in this case this anomaly did not cause the complainant any
injury.
Indeed, it is plain from the evidence in the file that the complainant ...
- ... documents which had been distributed focused on the provisions
applicable to officials working in Brussels".
3.
With regard to the rules applying to special identity cards
and special registration plates, the information guide drawn up by
Eurocontrol could only reproduce the Host State's legislation, which,
in the present case, did not allow the complainant to receive the
advantages which he is claiming. While the Tribunal considers it
regrettable that Eurocontrol disseminated an information guide
containing incorrect statements regarding the rights of officials, it
notes that in this case this anomaly did not cause the complainant any
injury.
Indeed, it is plain from the evidence in the file that the complainant
had already submitted his request to be admitted to the ETS scheme
by the time this guide was issued. The incorrect information which
the Organisation gave him did not therefore influence his choice in
the matter. ...
- ... information guide
containing incorrect statements regarding the rights of officials, it
notes that in this case this anomaly did not cause the complainant any
injury.
Indeed, it is plain from the evidence in the file that the complainant
had already submitted his request to be admitted to the ETS scheme
by the time this guide was issued. The incorrect information which
the Organisation gave him did not therefore influence his choice in
the matter.
Moreover, Eurocontrol ensured that the information in question
was corrected during the above-mentioned seminar in May 2012 and
the interview on 8 August 2012.
4.
It follows from the foregoing that the complaint must be
dismissed in its entirety.
DECISION
For the above reasons,
The complaint is dismissed.
Judgment No. 3573
5
In witness of this judgment, adopted on 10 November 2015,
Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman, ...
- Judgment 3572
121st Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-inclusion in the list of staff members eligible for promotion in 2013.
- ... Eurocontrol
121st Session Judgment No. 3572
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr V. T. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 August 2013, Eurocontrol's reply of 20 December 2013, the
complainant's rejoinder of 6 February 2014 and Eurocontrol's
surrejoinder of 16 May 2014;
Considering Article II, paragraph 5, of the Statute of the
Tribunal;
Having examined the written ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
M.
v.
Eurocontrol
121st Session Judgment No. 3572
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr V. T. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 August 2013, Eurocontrol's reply of 20 December 2013, the
complainant's rejoinder of 6 February 2014 and Eurocontrol's
surrejoinder of 16 May 2014;
Considering Article II, paragraph 5, of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his non-inclusion in the ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
M.
v.
Eurocontrol
121st Session Judgment No. 3572
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr V. T. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 August 2013, Eurocontrol's reply of 20 December 2013, the
complainant's rejoinder of 6 February 2014 and Eurocontrol's
surrejoinder of 16 May 2014;
Considering Article II, paragraph 5, of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his non-inclusion in the list of staff
members eligible ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
M.
v.
Eurocontrol
121st Session Judgment No. 3572
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr V. T. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 August 2013, Eurocontrol's reply of 20 December 2013, the
complainant's rejoinder of 6 February 2014 and Eurocontrol's
surrejoinder of 16 May 2014;
Considering Article II, paragraph 5, of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his non-inclusion in the list of staff
members eligible for promotion in 2013.
The complainant joined the staff of Eurocontrol on 5 January 2009
as ...
- ... February 2014 and Eurocontrol's
surrejoinder of 16 May 2014;
Considering Article II, paragraph 5, of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his non-inclusion in the list of staff
members eligible for promotion in 2013.
The complainant joined the staff of Eurocontrol on 5 January 2009
as an official at grade B*5, step 1. At the end of the transitional period
that followed the entry into force, on 1 July 2008, of a wide-ranging
administrative reform which resulted, in particular, in a new grade
structure and which is explained in detail in Judgment 3189, the
complainant's grade was renamed AST5 with effect from 1 July 2010.
On 1 January 2011 the complainant advanced to step 2 of this grade
pursuant to Article 44 of the Staff Regulations ...
- ... period
that followed the entry into force, on 1 July 2008, of a wide-ranging
administrative reform which resulted, in particular, in a new grade
structure and which is explained in detail in Judgment 3189, the
complainant's grade was renamed AST5 with effect from 1 July 2010.
On 1 January 2011 the complainant advanced to step 2 of this grade
pursuant to Article 44 of the Staff Regulations governing officials of
Judgment No. 3572
2
the Eurocontrol Agency (Staff Regulations), according to which an
official will generally advance to the next step every two years.
After having participated successfully in a competition, the
complainant was appointed with effect from 1 May 2012 to grade AD5,
step 2, his seniority in this step being reckoned from 1 January 2011.
As he wished to ascertain whether he was eligible for promotion in
2013, he asked the Directorate of Resources for confirmation of his
seniority in his new ...
- ... to dismiss his
internal complaint arising under Article 92, paragraph 2, of the Staff
Regulations. He requested that his seniority in "grade 5" be reckoned
from 1 January 2009, that his name be added to the list of staff eligible
for promotion in 2013, that the promotion exercise be restarted "in
Judgment No. 3572
3
[his] regard" or, failing this, that he be awarded compensation for loss
of income, moral damages and costs.
In its reply, Eurocontrol asks the Tribunal to dismiss the
complainant's first three claims as without merit and, subsidarily, to
dismiss his financial claims as without merit.
On 4 February 2014, just before submitting his rejoinder in which
he maintained his claims, the complainant enquired into the progress
of his internal complaint. He was told that it had been examined by the
Joint Committee for Disputes but that the opinion issued by the latter
on 20 December 2013 had not yet been forwarded ...
- ... claims as without merit and, subsidarily, to
dismiss his financial claims as without merit.
On 4 February 2014, just before submitting his rejoinder in which
he maintained his claims, the complainant enquired into the progress
of his internal complaint. He was told that it had been examined by the
Joint Committee for Disputes but that the opinion issued by the latter
on 20 December 2013 had not yet been forwarded to the Director
General for his final decision.
Eurocontrol repeats its arguments in its surrejoinder. It states that
the complainant was informed by an internal memorandum dated
11 March 2014 that his internal complaint had been dismissed as
unfounded, the Director General having decided to follow the opinion
of a member of the Joint Committee for Disputes who had held that
the complainant was not eligible for promotion because he did not
have sufficient seniority in his grade.
CONSIDERATIONS
1.
Article 5, paragraphs ...
- ... in its surrejoinder. It states that
the complainant was informed by an internal memorandum dated
11 March 2014 that his internal complaint had been dismissed as
unfounded, the Director General having decided to follow the opinion
of a member of the Joint Committee for Disputes who had held that
the complainant was not eligible for promotion because he did not
have sufficient seniority in his grade.
CONSIDERATIONS
1.
Article 5, paragraphs 1 and 2, of Eurocontrol's Staff
Regulations as amended in consequence of the Agency's wide-ranging
reform of human resource management that entered into force on
1 July 2008, reads as follows:
"1. The posts covered by the Staff Regulations shall be classified,
according to the nature and importance of the duties to which they
relate, in a function group for managers or administrators (hereinafter
‘AD') and a function group for assistants or other specific functions
referred to in Annex I ...
- ... with the concept of "grade" as
analysed above, to which the Staff Regulations refer. Indeed, it is hardly
conceivable that a period of service in a post in the other function
group, the characteristics of which are deemed to be markedly different,
could be taken into account when calculating the seniority conferring
eligibility for promotion to the new grade in question.
4.
The complainant is therefore mistaken in his belief that,
because he was recruited by Eurocontrol in 2009 at grade B*5, which
was subsequently renamed AST5, he should have retained the benefit
of seniority acquired in a so-called "grade 5" when he was later
appointed, through a competition, to grade AD5.
5.
None of the various arguments put forward by the complainant
to invalidate this finding can be accepted.
6.
First, the fact that the Staff Regulations and some of its Rules
of Application refer to grades either by using the form "grade 5 of
function ...
- ... function group to the that which he had previously
held, albeit with the same number. The complainant is hence wrong to
cite "the reasoning behind [the above-mentioned] Article 3" in support
of his plea.
8.
Third, the complainant relies on the provisions of Article 45a
of the Staff Regulations, which deals inter alia with the appointment to a
post in function group AD of an official in function group AST who has
passed a professional examination set by Eurocontrol. As paragraph 4
of this article states that "[a]ppointment to a post in function group AD
shall not affect the grade and step occupied by the official at the moment
of appointment", the complainant argues that officials appointed to
group AD in this manner retain their previous grade and hence the
seniority that they have acquired in that grade. Although the complainant
recognises that this article is not applicable to officials who, like him,
are appointed to group AD ...
- ... a post in that group.
10.
Fifth, the complainant observes that the failure to take into
account the seniority that he acquired in the AST function group
before his appointment to the AD group has had the paradoxical effect
of penalising his success in the competition that led to this appointment,
particularly as his duties changed but his grade stayed the same. He
concludes from this that one of the main objectives of the 2008 reform
and, more generally, of Eurocontrol's human resources management,
namely to encourage performance-related promotions rather than
Judgment No. 3572
8
automatic advances, has been disregarded by Eurocontrol in his case.
However, apart from the fact that this is a line of argument based
more on expediency than on law, in advancing it, the complainant
unjustifiably ignores the fact that his appointment to the AD group
opened up distinctly more favourable career prospects than those to ...
- ... AD group has had the paradoxical effect
of penalising his success in the competition that led to this appointment,
particularly as his duties changed but his grade stayed the same. He
concludes from this that one of the main objectives of the 2008 reform
and, more generally, of Eurocontrol's human resources management,
namely to encourage performance-related promotions rather than
Judgment No. 3572
8
automatic advances, has been disregarded by Eurocontrol in his case.
However, apart from the fact that this is a line of argument based
more on expediency than on law, in advancing it, the complainant
unjustifiably ignores the fact that his appointment to the AD group
opened up distinctly more favourable career prospects than those to
which he could have aspired in the AST group. Furthermore, it should
be noted that, although the complainant was not eligible for promotion
in 2013, he became eligible the next year, which puts ...
- ... complainant
unjustifiably ignores the fact that his appointment to the AD group
opened up distinctly more favourable career prospects than those to
which he could have aspired in the AST group. Furthermore, it should
be noted that, although the complainant was not eligible for promotion
in 2013, he became eligible the next year, which puts into perspective
the alleged disadvantages entailed by the situation at issue.
11.
Lastly, the complainant complains that Eurocontrol lacked
celerity in dealing with his requests for information and his internal
complaint. However, apart from the fact that, in light of the evidence,
this criticism is only partly justified, it does not have any bearing on
the lawfulness of the impugned administrative decision.
12.
It follows from the above that the complaint must be
dismissed in its entirety, without there being any need to rule on its
receivability.
DECISION
For the above reasons,
The ...
- Judgment 3571
121st Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s refusal to convert his limited-term appointment into an appointment for an undetermined period and the reduction of the basis for calculating his contributions to the Pension Scheme to reflect his actual working time.
- ... Eurocontrol
121st Session Judgment No. 3571
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr Q. L. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 7 March
2013 and corrected on 4 April, Eurocontrol's reply of 5 July, the
complainant's rejoinder of 13 September, Eurocontrol's surrejoinder of
20 December 2013, the complainant's further submissions of 4 March
2014 and Eurocontrol's final comments thereon ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
L.
v.
Eurocontrol
121st Session Judgment No. 3571
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr Q. L. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 7 March
2013 and corrected on 4 April, Eurocontrol's reply of 5 July, the
complainant's rejoinder of 13 September, Eurocontrol's surrejoinder of
20 December 2013, the complainant's further submissions of 4 March
2014 and Eurocontrol's final comments thereon of 24 April 2014;
Considering the applications to intervene filed by Mr M. D. and
Ms K. H. on 16 May 2013 and the letter of 10 July 2013 in which
Eurocontrol stated that it had no objection to these applications; ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
L.
v.
Eurocontrol
121st Session Judgment No. 3571
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr Q. L. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 7 March
2013 and corrected on 4 April, Eurocontrol's reply of 5 July, the
complainant's rejoinder of 13 September, Eurocontrol's surrejoinder of
20 December 2013, the complainant's further submissions of 4 March
2014 and Eurocontrol's final comments thereon of 24 April 2014;
Considering the applications to intervene filed by Mr M. D. and
Ms K. H. on 16 May 2013 and the letter of 10 July 2013 in which
Eurocontrol stated that it had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
L.
v.
Eurocontrol
121st Session Judgment No. 3571
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr Q. L. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 7 March
2013 and corrected on 4 April, Eurocontrol's reply of 5 July, the
complainant's rejoinder of 13 September, Eurocontrol's surrejoinder of
20 December 2013, the complainant's further submissions of 4 March
2014 and Eurocontrol's final comments thereon of 24 April 2014;
Considering the applications to intervene filed by Mr M. D. and
Ms K. H. on 16 May 2013 and the letter of 10 July 2013 in which
Eurocontrol stated that it had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided ...
- ...
v.
Eurocontrol
121st Session Judgment No. 3571
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr Q. L. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 7 March
2013 and corrected on 4 April, Eurocontrol's reply of 5 July, the
complainant's rejoinder of 13 September, Eurocontrol's surrejoinder of
20 December 2013, the complainant's further submissions of 4 March
2014 and Eurocontrol's final comments thereon of 24 April 2014;
Considering the applications to intervene filed by Mr M. D. and
Ms K. H. on 16 May 2013 and the letter of 10 July 2013 in which
Eurocontrol stated that it had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the ...
- ...
Organisation for the Safety of Air Navigation (Eurocontrol) on 7 March
2013 and corrected on 4 April, Eurocontrol's reply of 5 July, the
complainant's rejoinder of 13 September, Eurocontrol's surrejoinder of
20 December 2013, the complainant's further submissions of 4 March
2014 and Eurocontrol's final comments thereon of 24 April 2014;
Considering the applications to intervene filed by Mr M. D. and
Ms K. H. on 16 May 2013 and the letter of 10 July 2013 in which
Eurocontrol stated that it had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert his
limited-term appointment into an appointment for an undetermined
period and the reduction ...
- ... to intervene filed by Mr M. D. and
Ms K. H. on 16 May 2013 and the letter of 10 July 2013 in which
Eurocontrol stated that it had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert his
limited-term appointment into an appointment for an undetermined
period and the reduction of the basis for calculating his contributions
to the Eurocontrol Pension Scheme to reflect his actual working time.
Judgment No. 3571
2
The complainant, who joined Eurocontrol on 1 May 2008, was
assigned to the Maastricht Upper Area Control Centre as a Junior
Simulator Pilot under a one-year limited-term appointment. This
appointment ...
- ... Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert his
limited-term appointment into an appointment for an undetermined
period and the reduction of the basis for calculating his contributions
to the Eurocontrol Pension Scheme to reflect his actual working time.
Judgment No. 3571
2
The complainant, who joined Eurocontrol on 1 May 2008, was
assigned to the Maastricht Upper Area Control Centre as a Junior
Simulator Pilot under a one-year limited-term appointment. This
appointment was renewed for three consecutive terms.
The new employment policy which had been approved by
Eurocontrol on 25 April 2002, announced by Office Notice No. 12/02
of 30 April 2002 ...
- ...
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert his
limited-term appointment into an appointment for an undetermined
period and the reduction of the basis for calculating his contributions
to the Eurocontrol Pension Scheme to reflect his actual working time.
Judgment No. 3571
2
The complainant, who joined Eurocontrol on 1 May 2008, was
assigned to the Maastricht Upper Area Control Centre as a Junior
Simulator Pilot under a one-year limited-term appointment. This
appointment was renewed for three consecutive terms.
The new employment policy which had been approved by
Eurocontrol on 25 April 2002, announced by Office Notice No. 12/02
of 30 April 2002 and incorporated into the Staff Regulations governing
officials of the Eurocontrol Agency and the General Conditions of
Employment ...
- ... the reduction of the basis for calculating his contributions
to the Eurocontrol Pension Scheme to reflect his actual working time.
Judgment No. 3571
2
The complainant, who joined Eurocontrol on 1 May 2008, was
assigned to the Maastricht Upper Area Control Centre as a Junior
Simulator Pilot under a one-year limited-term appointment. This
appointment was renewed for three consecutive terms.
The new employment policy which had been approved by
Eurocontrol on 25 April 2002, announced by Office Notice No. 12/02
of 30 April 2002 and incorporated into the Staff Regulations governing
officials of the Eurocontrol Agency and the General Conditions of
Employment of servants of the Eurocontrol Centre at Maastricht,
provided that "[w]here the tasks performed [were] of a lasting nature,
officials and servants recruited from 1 May 2002 onwards [would] be
offered appointments for an undetermined period", and that, "[w]here
the tasks ...
- ...
2
The complainant, who joined Eurocontrol on 1 May 2008, was
assigned to the Maastricht Upper Area Control Centre as a Junior
Simulator Pilot under a one-year limited-term appointment. This
appointment was renewed for three consecutive terms.
The new employment policy which had been approved by
Eurocontrol on 25 April 2002, announced by Office Notice No. 12/02
of 30 April 2002 and incorporated into the Staff Regulations governing
officials of the Eurocontrol Agency and the General Conditions of
Employment of servants of the Eurocontrol Centre at Maastricht,
provided that "[w]here the tasks performed [were] of a lasting nature,
officials and servants recruited from 1 May 2002 onwards [would] be
offered appointments for an undetermined period", and that, "[w]here
the tasks performed [were] of limited duration or [had] an uncertain
future, officials and servants recruited from 1 May 2002 onwards
[would] be offered limited-term ...
- ... to the Maastricht Upper Area Control Centre as a Junior
Simulator Pilot under a one-year limited-term appointment. This
appointment was renewed for three consecutive terms.
The new employment policy which had been approved by
Eurocontrol on 25 April 2002, announced by Office Notice No. 12/02
of 30 April 2002 and incorporated into the Staff Regulations governing
officials of the Eurocontrol Agency and the General Conditions of
Employment of servants of the Eurocontrol Centre at Maastricht,
provided that "[w]here the tasks performed [were] of a lasting nature,
officials and servants recruited from 1 May 2002 onwards [would] be
offered appointments for an undetermined period", and that, "[w]here
the tasks performed [were] of limited duration or [had] an uncertain
future, officials and servants recruited from 1 May 2002 onwards
[would] be offered limited-term appointments". Article 9 of Annex X
to the General Conditions of Employment ...
- ... to the duration of the
tasks, but may not exceed five years". The appointment in question
may be renewed, but the "total length of the appointment, including its
renewal period, may not exceed seven years". Furthermore, "[w]here
a post is of a lasting nature, the appointment may be converted into an
appointment for an undetermined period", subject to satisfactory
performance.
Although the complainant worked part time (60 per cent), he chose
to contribute to the Eurocontrol Pension Scheme as though he were
performing his duties on a full-time basis. His pension contributions
were therefore calculated by reference to the basic salary of a servant
performing those duties at 100 per cent.
By Office Notice No. 08/09 of 19 February 2009, Eurocontrol
informed its staff that several amendments would be made as of
1 March 2009 to the Staff Regulations and Staff Rules, in particular to
Article 3 of Annex IIa to the General Conditions of Employment ...
- ... may be converted into an
appointment for an undetermined period", subject to satisfactory
performance.
Although the complainant worked part time (60 per cent), he chose
to contribute to the Eurocontrol Pension Scheme as though he were
performing his duties on a full-time basis. His pension contributions
were therefore calculated by reference to the basic salary of a servant
performing those duties at 100 per cent.
By Office Notice No. 08/09 of 19 February 2009, Eurocontrol
informed its staff that several amendments would be made as of
1 March 2009 to the Staff Regulations and Staff Rules, in particular to
Article 3 of Annex IIa to the General Conditions of Employment
concerning part-time work. Pursuant to that article, the complainant's
Judgment No. 3571
3
contributions to the Pension Scheme were henceforth to be calculated
by reference to his basic salary. In other words, his contributions would
be reduced ...
- ... 3 precluded the complainant from contributing
to the Pension Scheme as if he were working full time. The complainant
was informed by a memorandum of 10 December 2012, which
constitutes the impugned decision, that his internal complaint had
been dismissed as unfounded, in accordance with the opinion of the
latter two members of the Committee.
On 7 March 2013 the complainant filed a complaint with the
Tribunal asking it to set aside the impugned decision, to order
Eurocontrol to convert his limited-term appointment into an
appointment for an undetermined period, to authorise him to continue
to contribute to the Pension Scheme on the basis of a full-time salary
until the date on which he actually retires and to award him costs in
the amount of 4,000 euros.
Judgment No. 3571
4
Eurocontrol asks the Tribunal to dismiss the complaint as
groundless.
During the proceedings, on 19 August 2013 the complainant
received ...
- ...
On 7 March 2013 the complainant filed a complaint with the
Tribunal asking it to set aside the impugned decision, to order
Eurocontrol to convert his limited-term appointment into an
appointment for an undetermined period, to authorise him to continue
to contribute to the Pension Scheme on the basis of a full-time salary
until the date on which he actually retires and to award him costs in
the amount of 4,000 euros.
Judgment No. 3571
4
Eurocontrol asks the Tribunal to dismiss the complaint as
groundless.
During the proceedings, on 19 August 2013 the complainant
received a memorandum, signed by the Principal Director of Resources,
informing him of the decision not to renew his appointment, which
was due to expire on 30 April 2014. In his further submissions, the
complainant notes that this memorandum was not signed by the
Director General and that it does not mention any delegation of
authority. He therefore ...
- ... was not signed by the
Director General and that it does not mention any delegation of
authority. He therefore asks the Tribunal to declare that decision null
and void, or at least inoperative. He further requests reinstatement
in his former post at the same grade and step, the payment of his
remuneration and of "lost benefits" from 1 May 2014 to the day on
which he is effectively reinstated and the payment of 5,000 euros in
damages.
In its final comments, Eurocontrol asks the Tribunal to dismiss
the claims related to the decision of 19 August 2013 as irreceivable,
because internal means of redress have not been exhausted.
CONSIDERATIONS
1.
This complaint seeks the setting aside of the decision of
10 December 2012 dismissing the complainant's internal complaint
concerning the conversion of his appointment and a change in the
basis for calculating his contributions to the Eurocontrol Pension
Scheme. In his further submissions ...
- ...
damages.
In its final comments, Eurocontrol asks the Tribunal to dismiss
the claims related to the decision of 19 August 2013 as irreceivable,
because internal means of redress have not been exhausted.
CONSIDERATIONS
1.
This complaint seeks the setting aside of the decision of
10 December 2012 dismissing the complainant's internal complaint
concerning the conversion of his appointment and a change in the
basis for calculating his contributions to the Eurocontrol Pension
Scheme. In his further submissions the complainant also requests
the setting aside of the decision of 19 August 2013 informing him of
the non-renewal of his appointment.
The receivability of the claims related
to the decision of 19 August 2013
2.
Article VII, paragraph 1, of the Statute of the Tribunal
provides that "[a] complaint shall not be receivable unless the decision
impugned is a final decision and the person concerned has exhausted
such ...
- ... to the requirement that internal means
of redress must be exhausted applies. These claims are therefore
irreceivable.
3.
As the claims related to the decision of 19 August 2013 are
irreceivable, the Tribunal will examine the merits of two claims
concerning, firstly, the conversion of a limited-term appointment into
an appointment for an undetermined period and, secondly, the
reduction of the basis for calculating the complainant's contributions
to the Eurocontrol Pension Scheme to reflect his actual working time,
that is, 60 per cent.
Conversion of the limited-term appointment into
an appointment for an undetermined period
4.
The complainant submits that he is entitled to an appointment
for an undetermined period. He bases this contention on the new
Judgment No. 3571
6
employment policy introduced in 2002 and the provisions of Annex X
to the General Conditions of Employment applicable to servants ...
- ... appointment into
an appointment for an undetermined period
4.
The complainant submits that he is entitled to an appointment
for an undetermined period. He bases this contention on the new
Judgment No. 3571
6
employment policy introduced in 2002 and the provisions of Annex X
to the General Conditions of Employment applicable to servants
appointed for an undetermined or limited period from 1 May 2002.
He also submits that Eurocontrol has breached the principle of non-
discrimination, in that servants performing the same duties do not hold
the same kind of contract, and that it has failed to honour its general
duty of care and good faith, in that the theoretical improvement in
servants' terms of employment has been accompanied by a considerable
drop in compensation in the event of termination of service, with the
result that even the situation of servants appointed for an undetermined
period has deteriorated. ...
- ... deteriorated.
5.
According to Article 4 of Annex X to the General Conditions
of Employment, "[t]he servant shall be appointed for an undetermined
period where the duties corresponding to the post for which he is
applying are of a lasting nature". This provision means that the
complainant would be entitled to the conversion of his contract if it
were established that his post was indeed of a lasting nature. It is,
however, plain from the explanations given by Eurocontrol and from
the supporting documentation which it provides that the Organisation
requires a permanent complement of nine simulator pilots and that any
additional needs, for which it sometimes has to call on other servants,
are subject to short-term fluctuations. For this reason, the duties entrusted
to servants other than the above-mentioned nine cannot be regarded as
lasting in nature. Moreover, the existence of two different kinds of
appointment for the two above-mentioned ...
- ... submission that the general duty of care and good
faith has been breached. It may be concluded from the foregoing
that the complainant had no entitlement to an appointment for an
undetermined period.
Judgment No. 3571
7
The reduction of the basis for calculating contributions
to the Pension Scheme to reflect actual working time
6.
The complainant holds that the decision to reduce the basis
for calculating his contributions to the Eurocontrol Pension Scheme
breaches the principle of equality as well as his acquired rights. In his
opinion, the principle of equality is undermined because the disputed
measure does not apply to simulator pilots appointed for an undetermined
period, and because servants who work part time because they have
chosen to do so are allowed to contribute as if they worked full time.
He adds that Eurocontrol has unilaterally breached an acquired right
by reducing the basis for calculating ...
- ... the decision to reduce the basis
for calculating his contributions to the Eurocontrol Pension Scheme
breaches the principle of equality as well as his acquired rights. In his
opinion, the principle of equality is undermined because the disputed
measure does not apply to simulator pilots appointed for an undetermined
period, and because servants who work part time because they have
chosen to do so are allowed to contribute as if they worked full time.
He adds that Eurocontrol has unilaterally breached an acquired right
by reducing the basis for calculating his contributions to the Pension
Scheme to 60 per cent. Eurocontrol takes the view that there is no rule
or principle which prevents an organisation from amending terms of
employment when it offers a renewal of appointment. It adds that the
complainant is not in the same situation as the servants to whom he
refers as examples. With regard to his claim to have an acquired right,
Eurocontrol ...
- ... his acquired rights. In his
opinion, the principle of equality is undermined because the disputed
measure does not apply to simulator pilots appointed for an undetermined
period, and because servants who work part time because they have
chosen to do so are allowed to contribute as if they worked full time.
He adds that Eurocontrol has unilaterally breached an acquired right
by reducing the basis for calculating his contributions to the Pension
Scheme to 60 per cent. Eurocontrol takes the view that there is no rule
or principle which prevents an organisation from amending terms of
employment when it offers a renewal of appointment. It adds that the
complainant is not in the same situation as the servants to whom he
refers as examples. With regard to his claim to have an acquired right,
Eurocontrol considers that no principle demands that a contract must
necessarily be renewed on the same terms as the previous contract.
7.
According to ...
- ... has unilaterally breached an acquired right
by reducing the basis for calculating his contributions to the Pension
Scheme to 60 per cent. Eurocontrol takes the view that there is no rule
or principle which prevents an organisation from amending terms of
employment when it offers a renewal of appointment. It adds that the
complainant is not in the same situation as the servants to whom he
refers as examples. With regard to his claim to have an acquired right,
Eurocontrol considers that no principle demands that a contract must
necessarily be renewed on the same terms as the previous contract.
7.
According to the Tribunal's case law as established in
Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986,
the amendment to an official's detriment of a provision governing
her/his status constitutes a breach of an acquired right only if it adversely
affects the balance of contractual obligations by altering fundamental
terms ...
- ... to decide whether there may have been a breach of an acquired
right, it is necessary to determine whether the altered terms of
employment are fundamental and essential within the meaning of
Judgment 832 (see also in this connection Judgment 2986, under 16,
and the case law cited therein).
8.
In the instant case, the Tribunal considers that, on account of
its magnitude, the alteration of the basis for calculating the complainant's
contributions to the Eurocontrol Pension Scheme breached a fundamental
Judgment No. 3571
8
and essential term of employment. It is clear from the file that this
alteration, which had a detrimental effect for the complainant, was
made without his consent, since the decision to renew his appointment
of 5 April 2012, in which the amendment in question was stipulated,
was taken in a unilateral manner by the Organisation. Moreover, the
Tribunal notes that, at the time of the previous ...
- ... with the Tribunal's case law, the interveners are not,
however, entitled to costs (see Judgments 1629, under 27, 2196, under
22, and 2315, under 36).
DECISION
For the above reasons,
1.
The Director General's decision of 10 December 2012 is set aside
insofar as it rejected the complainant's request to maintain the
basis for calculating his contributions to the Pension Scheme at
100 per cent.
Judgment No. 3571
9
2.
Eurocontrol shall take all necessary steps to restore the complainant's
rights in respect of the contributions to the Pension Scheme.
3.
It shall pay the complainant costs in the amount of 3,000 euros.
4.
All other claims are dismissed.
5.
The interveners shall enjoy the rights established by this judgment
in respect of the complainant.
In witness of this judgment, adopted on 11 November 2015,
Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman, ...
- Judgment 3570
121st Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to end his service on grounds of invalidity and requests his reinstatement.
- ... Eurocontrol
121st Session Judgment No. 3570
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 2 May
2013, Eurocontrol's reply of 20 August, the complainant's rejoinder of
13 September and Eurocontrol's surrejoinder of 13 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
H.
v.
Eurocontrol
121st Session Judgment No. 3570
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 2 May
2013, Eurocontrol's reply of 20 August, the complainant's rejoinder of
13 September and Eurocontrol's surrejoinder of 13 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to end his service ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
H.
v.
Eurocontrol
121st Session Judgment No. 3570
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 2 May
2013, Eurocontrol's reply of 20 August, the complainant's rejoinder of
13 September and Eurocontrol's surrejoinder of 13 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to end his service on
grounds of invalidity and ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
H.
v.
Eurocontrol
121st Session Judgment No. 3570
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 2 May
2013, Eurocontrol's reply of 20 August, the complainant's rejoinder of
13 September and Eurocontrol's surrejoinder of 13 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to end his service on
grounds of invalidity and requests his reinstatement.
The complainant entered the service of Eurocontrol ...
- ... surrejoinder of 13 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to end his service on
grounds of invalidity and requests his reinstatement.
The complainant entered the service of Eurocontrol on 1 April 2004
and was assigned to the Maastricht Upper Area Control Centre, in the
Netherlands, as Local Adviser for the Service for Protection and
Prevention at Work.
On 1 July 2011 the Principal Director of Resources decided, in view
of the complainant's total number of days of absence owing to sickness,
to convene the Invalidity Committee.
Judgment No. 3570
2
On 22 November 2011 Ms D., Head of Section in the Directorate
of Resources, ...
- ... 3570
2
On 22 November 2011 Ms D., Head of Section in the Directorate
of Resources, informed the complainant that, in accordance with the
Invalidity Committee's finding that he "[was] suffering from total
permanent invalidity preventing [him] from performing the duties
attaching to a post in [his] career bracket" and with the General
Conditions of Employment Governing Servants at the Maastricht Centre,
the complainant was obliged to end his service with Eurocontrol as
from 30 November 2011. She further informed him that the Invalidity
Committee had
decided that
his case would be reviewed after one
year.
On 31 May 2012 Eurocontrol published a vacancy notice for the
post previously held by the complainant. On 1 June the complainant
told Eurocontrol that he was fit to resume his service. He stated that he
would provide medical evidence
if required.
On 15 June Eurocontrol asked the complainant to provide its
Medical ...
- ... that he "[was] suffering from total
permanent invalidity preventing [him] from performing the duties
attaching to a post in [his] career bracket" and with the General
Conditions of Employment Governing Servants at the Maastricht Centre,
the complainant was obliged to end his service with Eurocontrol as
from 30 November 2011. She further informed him that the Invalidity
Committee had
decided that
his case would be reviewed after one
year.
On 31 May 2012 Eurocontrol published a vacancy notice for the
post previously held by the complainant. On 1 June the complainant
told Eurocontrol that he was fit to resume his service. He stated that he
would provide medical evidence
if required.
On 15 June Eurocontrol asked the complainant to provide its
Medical Adviser with a detailed medical report by his treating doctor
with a view to ending his invalidity status and reinstating him. That
same day, the Medical Adviser contacted the medical ...
- ... in [his] career bracket" and with the General
Conditions of Employment Governing Servants at the Maastricht Centre,
the complainant was obliged to end his service with Eurocontrol as
from 30 November 2011. She further informed him that the Invalidity
Committee had
decided that
his case would be reviewed after one
year.
On 31 May 2012 Eurocontrol published a vacancy notice for the
post previously held by the complainant. On 1 June the complainant
told Eurocontrol that he was fit to resume his service. He stated that he
would provide medical evidence
if required.
On 15 June Eurocontrol asked the complainant to provide its
Medical Adviser with a detailed medical report by his treating doctor
with a view to ending his invalidity status and reinstating him. That
same day, the Medical Adviser contacted the medical centre where the
complainant had been treated to ask its opinion on the complainant's
health and possible reinstatement. ...
- ... was obliged to end his service with Eurocontrol as
from 30 November 2011. She further informed him that the Invalidity
Committee had
decided that
his case would be reviewed after one
year.
On 31 May 2012 Eurocontrol published a vacancy notice for the
post previously held by the complainant. On 1 June the complainant
told Eurocontrol that he was fit to resume his service. He stated that he
would provide medical evidence
if required.
On 15 June Eurocontrol asked the complainant to provide its
Medical Adviser with a detailed medical report by his treating doctor
with a view to ending his invalidity status and reinstating him. That
same day, the Medical Adviser contacted the medical centre where the
complainant had been treated to ask its opinion on the complainant's
health and possible reinstatement.
On 19 July 2012 the complainant filed an internal complaint with
the Director General challenging the publication of a vacancy ...
- ... Medical Adviser
explained to the complainant's supervisor that even if the complainant's
reinstatement were possible, he could not resume the duties that he
performed before his invalidity had been recognised.
On 27 August the nurse and welfare officer at the medical centre
wrote a letter to the complainant's treating doctor informing him that
the complainant's treatment would end the next day.
By a letter of 29 August, the complainant's treating doctor informed
Eurocontrol's Medical Adviser of the following: "The [complainant]
has felt better over recent months; he does not complain any more
Judgment No. 3570
3
during consultations and is motivated to work again." On the same
day, Eurocontrol's Medical Adviser examined the complainant and
found that he was fit to resume work but that he should be assigned to
another post. He added that the complainant's return to work was
strongly recommended in the interests of ...
- ... at the medical centre
wrote a letter to the complainant's treating doctor informing him that
the complainant's treatment would end the next day.
By a letter of 29 August, the complainant's treating doctor informed
Eurocontrol's Medical Adviser of the following: "The [complainant]
has felt better over recent months; he does not complain any more
Judgment No. 3570
3
during consultations and is motivated to work again." On the same
day, Eurocontrol's Medical Adviser examined the complainant and
found that he was fit to resume work but that he should be assigned to
another post. He added that the complainant's return to work was
strongly recommended in the interests of his health.
On 5 October 2012 the Principal Director of Resources wrote
to the complainant — who did not agree with the Medical Adviser's
findings — informing him that he had decided to request an independent
examination of the complainant's fitness ...
- ... opinion.
On 6 February 2013 the Principal Director of Resources, acting
on behalf of the Director General, informed the complainant that
his internal complaint of 19 July 2012 had been dismissed. That is the
impugned decision.
On 2 May 2013 the complainant filed a complaint with the Tribunal,
asking it to quash the decision of 22 November 2011 ending his service
on grounds of invalidity, to order his reinstatement as from 1 December
2011 and to order Eurocontrol to pay his entire salary and emoluments
with interest; failing this, to quash the decision of 6 February 2013
dismissing his internal complaint, to order his reinstatement as from
1 June 2012 and to order Eurocontrol to pay his entire salary and
emoluments with interest; and, in any event, to order the correction of
his pay slips and his file as from the date of his reinstatement, and to
order Eurocontrol to pay moral damages in the amount of 10,000 euros
and costs.
Eurocontrol ...
- ...
impugned decision.
On 2 May 2013 the complainant filed a complaint with the Tribunal,
asking it to quash the decision of 22 November 2011 ending his service
on grounds of invalidity, to order his reinstatement as from 1 December
2011 and to order Eurocontrol to pay his entire salary and emoluments
with interest; failing this, to quash the decision of 6 February 2013
dismissing his internal complaint, to order his reinstatement as from
1 June 2012 and to order Eurocontrol to pay his entire salary and
emoluments with interest; and, in any event, to order the correction of
his pay slips and his file as from the date of his reinstatement, and to
order Eurocontrol to pay moral damages in the amount of 10,000 euros
and costs.
Eurocontrol submits that the complaint is irreceivable insofar as
it concerns the complainant's request for the quashing of the decision
to recognise his invalidity. It further argues that the complaint should
Judgment ...
- ... order his reinstatement as from 1 December
2011 and to order Eurocontrol to pay his entire salary and emoluments
with interest; failing this, to quash the decision of 6 February 2013
dismissing his internal complaint, to order his reinstatement as from
1 June 2012 and to order Eurocontrol to pay his entire salary and
emoluments with interest; and, in any event, to order the correction of
his pay slips and his file as from the date of his reinstatement, and to
order Eurocontrol to pay moral damages in the amount of 10,000 euros
and costs.
Eurocontrol submits that the complaint is irreceivable insofar as
it concerns the complainant's request for the quashing of the decision
to recognise his invalidity. It further argues that the complaint should
Judgment No. 3570
4
be declared unfounded in its entirety. Lastly, it requests the Tribunal,
if necessary, to order the disclosure of the complainant's medical file.
CONSIDERATIONS ...
- ... his entire salary and emoluments
with interest; failing this, to quash the decision of 6 February 2013
dismissing his internal complaint, to order his reinstatement as from
1 June 2012 and to order Eurocontrol to pay his entire salary and
emoluments with interest; and, in any event, to order the correction of
his pay slips and his file as from the date of his reinstatement, and to
order Eurocontrol to pay moral damages in the amount of 10,000 euros
and costs.
Eurocontrol submits that the complaint is irreceivable insofar as
it concerns the complainant's request for the quashing of the decision
to recognise his invalidity. It further argues that the complaint should
Judgment No. 3570
4
be declared unfounded in its entirety. Lastly, it requests the Tribunal,
if necessary, to order the disclosure of the complainant's medical file.
CONSIDERATIONS
1.
By a decision of 22 November 2011, the complainant's service ...
- Judgment 3569
121st Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests the payment of a differential allowance, since he contends that he temporarily occupied his superior’s post.
- ... Eurocontrol
121st Session Judgment No. 3569
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr F. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 30 March
2013, Eurocontrol's reply of 5 July, the complainant's rejoinder of
28 August and Eurocontrol's surrejoinder of 29 November 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F.
v.
Eurocontrol
121st Session Judgment No. 3569
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr F. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 30 March
2013, Eurocontrol's reply of 5 July, the complainant's rejoinder of
28 August and Eurocontrol's surrejoinder of 29 November 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant requests the payment of a differential allowance,
since ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F.
v.
Eurocontrol
121st Session Judgment No. 3569
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr F. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 30 March
2013, Eurocontrol's reply of 5 July, the complainant's rejoinder of
28 August and Eurocontrol's surrejoinder of 29 November 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant requests the payment of a differential allowance,
since he contends that he temporarily ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F.
v.
Eurocontrol
121st Session Judgment No. 3569
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr F. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 30 March
2013, Eurocontrol's reply of 5 July, the complainant's rejoinder of
28 August and Eurocontrol's surrejoinder of 29 November 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant requests the payment of a differential allowance,
since he contends that he temporarily occupied his superior's post.
At the material time, the complainant was employed ...
- ... at grade
AST5. On 14 August 2012 he wrote to the Director General explaining
that he had had to "take over all the duties" of his superior since the
latter — who held grade AST8 — had been placed on sick leave on
10 April 2012. He therefore asked to be granted a differential allowance
equal to the difference between his superior's remuneration and his
own, in accordance with the first paragraph of Article 8 of the Staff
Regulations governing officials of the Eurocontrol Agency.
Judgment No. 3569
2
The complainant was informed by a internal memorandum dated
27 August 2012 of various organisational measures concerning the
service to which he was assigned.
On 10 September he was advised that the provisions of the
aforementioned first paragraph of Article 8 did not apply in his case
because, in accordance with "existing policy", only vacant posts at
grade AD12 and above could be occupied temporarily. His request ...
- ... be advised
of that decision in due course.
On 30 March 2013 the complainant filed his complaint impugning
the implied decision to dismiss his internal complaint. He seeks the
quashing of that decision, payment of the sum to which he considers
he is entitled as a differential allowance for the period August 2012 to
Judgment No. 3569
3
January 2013 and the correction of his payslips accordingly. He also
claims moral damages and costs.
Eurocontrol submits that the complaint should be dismissed
as unfounded. It states that the complainant was informed by an
internal memorandum of 27 June 2013 that his internal complaint had
been dismissed, since the Principal Director of Resources, acting on
behalf of the Director General, considered that the conditions for
granting a differential allowance were not met, because the duties with
which the complainant had been entrusted as from April 2012 were
not "duties attaching" ...
- ... of the Director General, considered that the conditions for
granting a differential allowance were not met, because the duties with
which the complainant had been entrusted as from April 2012 were
not "duties attaching" to his superior's post.
CONSIDERATIONS
1.
The complainant asks the Tribunal to quash the implied
decision dismissing his internal complaint of 20 September 2012
concerning the payment of a differential allowance. He also asks
that Eurocontrol be ordered to pay 2,630 euros in respect of the
aforementioned allowance for the period August 2012 to January 2013
and to correct his payslips accordingly. Lastly, he asks that Eurocontrol
be ordered to pay 5,000 euros in compensation for the moral injury
suffered, as well as the costs of the current proceedings, which he
estimates to be 5,000 euros. It should be noted that the complaint now
before the Tribunal, which was originally directed against what the
complainant ...
- ... April 2012 were
not "duties attaching" to his superior's post.
CONSIDERATIONS
1.
The complainant asks the Tribunal to quash the implied
decision dismissing his internal complaint of 20 September 2012
concerning the payment of a differential allowance. He also asks
that Eurocontrol be ordered to pay 2,630 euros in respect of the
aforementioned allowance for the period August 2012 to January 2013
and to correct his payslips accordingly. Lastly, he asks that Eurocontrol
be ordered to pay 5,000 euros in compensation for the moral injury
suffered, as well as the costs of the current proceedings, which he
estimates to be 5,000 euros. It should be noted that the complaint now
before the Tribunal, which was originally directed against what the
complainant took to be an implied decision to dismiss his internal
complaint of 20 September 2012, must be regarded as being directed
against the explicit decision of 27 June 2013, taken in the course ...
- ... to dismiss his internal
complaint of 20 September 2012, must be regarded as being directed
against the explicit decision of 27 June 2013, taken in the course of
the proceedings, by which the Director General dismissed the internal
complaint (see Judgment 3373, under 3).
2.
The outcome of the dispute depends exclusively on whether
the complainant may rely on the provisions of the first paragraph of
Article 8 of the Staff Regulations governing officials of the Eurocontrol
Agency, which reads as follows:
Judgment No. 3569
4
"An official may be called upon to occupy temporarily a post in a grade in his
function group which is higher than his substantive grade. From the beginning
of the fourth month of such temporary posting, he shall receive a differential
allowance equal to the difference between the remuneration carried by his
substantive grade and step, and the remuneration he would receive in respect
of the ...
- Judgment 3568
121st Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Following an administrative reform at Eurocontrol, the complainants challenge the rejection of their requests for reclassification.
- ... Eurocontrol
121st Session Judgment No. 3568
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr J.-N. C. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and Eurocontrol's reply of 5 July 2013, Mr C. having
chosen not to file a rejoinder;
Considering the third complaints filed by Mr J. F. and Mr S. S. U.
against Eurocontrol on 9 March 2013, Eurocontrol's replies of
5 July, the rejoinders ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C. (No. 3), F. (No. 3) and U. (No. 3)
v.
Eurocontrol
121st Session Judgment No. 3568
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr J.-N. C. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and Eurocontrol's reply of 5 July 2013, Mr C. having
chosen not to file a rejoinder;
Considering the third complaints filed by Mr J. F. and Mr S. S. U.
against Eurocontrol on 9 March 2013, Eurocontrol's replies of
5 July, the rejoinders of Mr F. and Mr U. of 17 September and
Eurocontrol's surrejoinders of 20 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C. (No. 3), F. (No. 3) and U. (No. 3)
v.
Eurocontrol
121st Session Judgment No. 3568
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr J.-N. C. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and Eurocontrol's reply of 5 July 2013, Mr C. having
chosen not to file a rejoinder;
Considering the third complaints filed by Mr J. F. and Mr S. S. U.
against Eurocontrol on 9 March 2013, Eurocontrol's replies of
5 July, the rejoinders of Mr F. and Mr U. of 17 September and
Eurocontrol's surrejoinders of 20 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not
to
hold
oral proceedings, ...
- ... (No. 3), F. (No. 3) and U. (No. 3)
v.
Eurocontrol
121st Session Judgment No. 3568
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr J.-N. C. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and Eurocontrol's reply of 5 July 2013, Mr C. having
chosen not to file a rejoinder;
Considering the third complaints filed by Mr J. F. and Mr S. S. U.
against Eurocontrol on 9 March 2013, Eurocontrol's replies of
5 July, the rejoinders of Mr F. and Mr U. of 17 September and
Eurocontrol's surrejoinders of 20 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not
to
hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
Facts relevant to this dispute may be ...
- ... 3) and U. (No. 3)
v.
Eurocontrol
121st Session Judgment No. 3568
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr J.-N. C. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and Eurocontrol's reply of 5 July 2013, Mr C. having
chosen not to file a rejoinder;
Considering the third complaints filed by Mr J. F. and Mr S. S. U.
against Eurocontrol on 9 March 2013, Eurocontrol's replies of
5 July, the rejoinders of Mr F. and Mr U. of 17 September and
Eurocontrol's surrejoinders of 20 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not
to
hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
Facts relevant to this dispute may be found in Judgment 3275,
delivered ...
- ...
T
RIBUNAL
,
Considering the third complaint filed by Mr J.-N. C. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and Eurocontrol's reply of 5 July 2013, Mr C. having
chosen not to file a rejoinder;
Considering the third complaints filed by Mr J. F. and Mr S. S. U.
against Eurocontrol on 9 March 2013, Eurocontrol's replies of
5 July, the rejoinders of Mr F. and Mr U. of 17 September and
Eurocontrol's surrejoinders of 20 December 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not
to
hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
Facts relevant to this dispute may be found in Judgment 3275,
delivered on 5 February 2014, concerning the second complaints of
Mr C. and Mr U., amongst ...
- ...
Having examined the written submissions and decided not
to
hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
Facts relevant to this dispute may be found in Judgment 3275,
delivered on 5 February 2014, concerning the second complaints of
Mr C. and Mr U., amongst others. Suffice it to recall that on 1 July
2008, a wide-ranging administrative reform entered into force at
Eurocontrol entailing, inter alia, the introduction of a new grade
structure. The complainants were informed by decisions of 28 April
2009 of the generic post and career bracket assigned to them with effect
Judgment No. 3568
2
from 1 July 2008. Each of them submitted an internal complaint to
contest this classification, but the classification was upheld by decisions
of 5 July 2010.
In October 2010 each complainant submitted a second internal
complaint, challenging ...
- ... to
contest this classification, but the classification was upheld by decisions
of 5 July 2010.
In October 2010 each complainant submitted a second internal
complaint, challenging the decision sent to him on 5 July 2010. On
2 March 2011 Mr C. and Mr U. each filed a second complaint with the
Tribunal impugning the implied decision to reject their second internal
complaints. These complaints were dismissed by the Tribunal as
groundless in Judgment 3275. As Eurocontrol had explained, in the
surrejoinders which it had filed on those complaints, why the requests
for reclassification in a higher career bracket submitted on 11 June 2009
by the line manager of both complainants (who was also Mr F.'s line
manager) had not been processed, Mr C. and Mr U. had been
authorised to file further written submissions on this matter.
After the filing of the aforementioned surrejoinders, on 2 May,
8 May and 26 April 2012 resepctively, each of the complainants ...
- ... submissions on this matter.
After the filing of the aforementioned surrejoinders, on 2 May,
8 May and 26 April 2012 resepctively, each of the complainants
submitted a third internal complaint challenging an alleged "decision
of 2009" dismissing their reclassification requests. They asked for a
proper review of these requests in accordance with the procedure laid
down in Article 6 of Rule of Application No. 35 of the Staff Regulations
governing officials of the Eurocontrol Agency — concerning job
management — and that consideration be given to the possibility of an
ad hoc promotion under Article 8 of that Rule.
In the single opinion which it issued on 31 October 2012, the
Joint Committee for Disputes held that the internal complaints were
not directed against decisions causing injury and therefore unanimously
dismissed them as irreceivable. It stated that Mr F. — who, unlike the
other two complainants, had not filed a complaint with the ...
- ... before the Tribunal. Mr F. was advised that
his internal complaint had been dismissed as irreceivable because it
was "directed against an administrative decision taken in 2009" and,
subsidiarily, because it was unfounded.
On 9 March 2013 the complainants filed the present complaints in
which they reiterate the claims set out in their third internal complaints
and seek the setting aside of the impugned decision and compensation
for moral and financial injury.
Eurocontrol asks the Tribunal to join the three complaints, to dismiss
them as manifestly irreceivable owing to the lack of a decision causing
injury and, subsidiarily, as groundless. It submits that Mr F.'s
complaint is also time-barred, since his internal complaint of 8 May 2012
was submitted out of time. It adds that the complaints of Mr C. and
Mr U.
are also irreceivable because they are "obviously connected" with their
second complaints before the Tribunal, and it asks the Tribunal ...
- ... is also time-barred, since his internal complaint of 8 May 2012
was submitted out of time. It adds that the complaints of Mr C. and
Mr U.
are also irreceivable because they are "obviously connected" with their
second complaints before the Tribunal, and it asks the Tribunal to order
them to bear "the full costs of the proceedings" if they do not withdraw
their third
complaints, which it terms "frivolous
and redundant".
CONSIDERATIONS
1.
Eurocontrol requests the joinder of the three complaints. The
complainants have not expressed an opinion on this subject.
The three complaints concern essentially similar decisions and
contain identical claims. The complainants' submissions differ only in
that two of them briefly set out a subsidiary argument which is of limited
significance. The complaints will therefore be joined to form the subject
of a single judgment.
2.
In its recommendation of 31 October 2012, on which ...
- ... of the Joint Committee for Disputes was that they
were not directed against decisions causing injury
.
3.
This finding bears no criticism.
Judgment No. 3568
4
According to the wording of their internal complaints, the
complainants were challenging a "decision in 2009 adopted […] by an
unknown person at an unknown date". They maintain that they had learnt
of the existence of this decision from the surrejoinder submitted by
Eurocontrol in February 2012 in response to the complaints filed by two
of them which were dismissed by Judgment 3275. They contend that
this surrejoinder thus constituted "late notification" of the said decision.
The surrejoinder to which the complainants refer does not evidence
any decision dismissing their internal complaints which they would
have been unable to impugn at an earlier date because they were unaware
of it. In that surrejoinder, Eurocontrol merely stated the reasons why ...
- ... submitted by
Eurocontrol in February 2012 in response to the complaints filed by two
of them which were dismissed by Judgment 3275. They contend that
this surrejoinder thus constituted "late notification" of the said decision.
The surrejoinder to which the complainants refer does not evidence
any decision dismissing their internal complaints which they would
have been unable to impugn at an earlier date because they were unaware
of it. In that surrejoinder, Eurocontrol merely stated the reasons why
it had discontinued the process of reviewing the complainants'
classification and why it had not endorsed the favourable opinion which
their line manager had expressed on this matter in an e-mail. The Joint
Committee for Disputes, on whose recommendation the Director General
based his decision, was therefore right in holding that there was nothing
in the surrejoinder cited by the complainants which permitted them to
rely either on the existence ...
- ... surrejoinder cited by the complainants which permitted them to
rely either on the existence of a decision of which they had previously
been unaware or on any assurance of reclassification or promotion.
For the remainder, the complaints merely repeat in various ways,
as main or subsidiary arguments, pleas which were definitively rejected
in Judgment 3275.
4.
The complaints must therefore be dismissed as devoid of
merit, without there being any need to rule on Eurocontrol's objections
to receivability.
5.
In its replies Eurocontrol asked that two of the complainants,
namely those who were party to the dispute leading to the delivery of
Judgment 3275, be ordered to bear "the full costs of the proceedings"
if they did not withdraw their respective complaints.
The Tribunal may indeed award costs against the authors of
frivolous, vexatious and repeated complaints which absorb its resources
and those of the defendant organisations ...
- ... on the existence of a decision of which they had previously
been unaware or on any assurance of reclassification or promotion.
For the remainder, the complaints merely repeat in various ways,
as main or subsidiary arguments, pleas which were definitively rejected
in Judgment 3275.
4.
The complaints must therefore be dismissed as devoid of
merit, without there being any need to rule on Eurocontrol's objections
to receivability.
5.
In its replies Eurocontrol asked that two of the complainants,
namely those who were party to the dispute leading to the delivery of
Judgment 3275, be ordered to bear "the full costs of the proceedings"
if they did not withdraw their respective complaints.
The Tribunal may indeed award costs against the authors of
frivolous, vexatious and repeated complaints which absorb its resources
and those of the defendant organisations and hamper the Tribunal's
ability to deal expeditiously with other complaints. ...
- ... unfounded (see Judgments 1962, under 4,
and 3196, under 7).
It is true that, in the instant case, the complaints have been
maintained despite the fact that there has been no change in the
situation which led the Tribunal to dismiss the complainants' claims
in a judgment carrying res judicata authority. Although this case is
on the borderline of what is acceptable in this respect, the Tribunal
considers that, in the circumstances, it is not justified to allow
Eurocontrol's counterclaims that the two complainants in question
should be ordered to pay costs.
DECISION
For the above reasons,
The complaints are dismissed, as are Eurocontrol's couterclaims.
In witness of this judgment, adopted on 5 November 2015,
Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman,
Judge, and Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen
Petrovic, Registrar.
Delivered in public in Geneva on 3 February 2016.
(Signed)
C
LAUDE ...
- ... no change in the
situation which led the Tribunal to dismiss the complainants' claims
in a judgment carrying res judicata authority. Although this case is
on the borderline of what is acceptable in this respect, the Tribunal
considers that, in the circumstances, it is not justified to allow
Eurocontrol's counterclaims that the two complainants in question
should be ordered to pay costs.
DECISION
For the above reasons,
The complaints are dismissed, as are Eurocontrol ...
- Judgment 3497
120th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the refusal of her request that her mother’s condition be recognized as a serious illness.
- ... Eurocontrol
120th Session Judgment No. 3497
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms L. S. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 February 2013 and corrected on 17 April, Eurocontrol's reply of
9 August, the complainant's rejoinder of 17 October 2013 and
Eurocontrol's surrejoinder of 23 January 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation
,
the French text alone
being authoritative.
S.
v.
Eurocontrol
120th Session Judgment No. 3497
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms L. S. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 February 2013 and corrected on 17 April, Eurocontrol's reply of
9 August, the complainant's rejoinder of 17 October 2013 and
Eurocontrol's surrejoinder of 23 January 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contests ...
- ... Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation
,
the French text alone
being authoritative.
S.
v.
Eurocontrol
120th Session Judgment No. 3497
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms L. S. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 February 2013 and corrected on 17 April, Eurocontrol's reply of
9 August, the complainant's rejoinder of 17 October 2013 and
Eurocontrol's surrejoinder of 23 January 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contests the refusal of her request that her
mother's condition ...
- ... translation
,
the French text alone
being authoritative.
S.
v.
Eurocontrol
120th Session Judgment No. 3497
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms L. S. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 February 2013 and corrected on 17 April, Eurocontrol's reply of
9 August, the complainant's rejoinder of 17 October 2013 and
Eurocontrol's surrejoinder of 23 January 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contests the refusal of her request that her
mother's condition be recognized as a serious illness.
At the material time, the complainant was employed as ...
- ...
The complainant contests the refusal of her request that her
mother's condition be recognized as a serious illness.
At the material time, the complainant was employed as a contractor
and was based in France. On 28 October 2011, at her request, her
parents were recognized as dependents because their maintenance
involved heavy expenditure. On 15 March 2012 she requested the
Director General, pursuant to Rule of Application No. 10 of the Staff
Regulations of the Eurocontrol Agency, to allow her parents to be
covered by the Eurocontrol Sickness Insurance Scheme (hereinafter
the "Insurance Scheme"), alleging that her mother required medical
Judgment No. 3497
2
treatment that was not available in her country of origin. By a
memorandum of 23 April, she was informed that her mother was
covered by the Insurance Scheme from 5 March 2012, the date of the
"first medical expenses in France", to the end of the period during
which ...
- ...
mother's condition be recognized as a serious illness.
At the material time, the complainant was employed as a contractor
and was based in France. On 28 October 2011, at her request, her
parents were recognized as dependents because their maintenance
involved heavy expenditure. On 15 March 2012 she requested the
Director General, pursuant to Rule of Application No. 10 of the Staff
Regulations of the Eurocontrol Agency, to allow her parents to be
covered by the Eurocontrol Sickness Insurance Scheme (hereinafter
the "Insurance Scheme"), alleging that her mother required medical
Judgment No. 3497
2
treatment that was not available in her country of origin. By a
memorandum of 23 April, she was informed that her mother was
covered by the Insurance Scheme from 5 March 2012, the date of the
"first medical expenses in France", to the end of the period during
which she would be considered as a dependant.
On 4 May the ...
- ... same
grounds: the absence of a shortened life expectancy. He also stated that
there was no evidence that the file sent to the Committee was incomplete
and
he challenged the statement that the decision of 28 August 2012 was
inconsistent. That is the impugned decision.
The full costs of the complainant's mother's treatment were
advanced by the Insurance Scheme and the complainant assumed the
equivalent of 5 per cent of those costs, i.e. 2,149.10 euros, which
Eurocontrol recovered through two successive salary deductions.
The complainant requests that the impugned decision be rescinded,
that her mother's condition be recognized as a serious illness for a four-
year period as from 4 May 2012, that her past and future medical costs
be covered at 100 per cent, that she be paid interest on the medical costs
that she assumed and that she be awarded moral damages and costs.
Eurocontrol requests the Tribunal to dismiss all the complainant's
claims. ...
- ... 5 per cent of those costs, i.e. 2,149.10 euros, which
Eurocontrol recovered through two successive salary deductions.
The complainant requests that the impugned decision be rescinded,
that her mother's condition be recognized as a serious illness for a four-
year period as from 4 May 2012, that her past and future medical costs
be covered at 100 per cent, that she be paid interest on the medical costs
that she assumed and that she be awarded moral damages and costs.
Eurocontrol requests the Tribunal to dismiss all the complainant's
claims.
CONSIDERATIONS
1.
The complainant, who requests that her mother's condition be
recognized as a serious illness, first contends that Eurocontrol failed to
respect the time limits for the internal appeal procedure. She submits
Judgment No. 3497
4
that it should have referred the case to the Committee "quickly", since
the Committee was required to give its opinion within two months; ...
- ... as a serious illness for a four-
year period as from 4 May 2012, that her past and future medical costs
be covered at 100 per cent, that she be paid interest on the medical costs
that she assumed and that she be awarded moral damages and costs.
Eurocontrol requests the Tribunal to dismiss all the complainant's
claims.
CONSIDERATIONS
1.
The complainant, who requests that her mother's condition be
recognized as a serious illness, first contends that Eurocontrol failed to
respect the time limits for the internal appeal procedure. She submits
Judgment No. 3497
4
that it should have referred the case to the Committee "quickly", since
the Committee was required to give its opinion within two months; that,
having received the file late, the Committee was late in issuing its
opinion; and that, "under the Tribunal's own statutes", the Director
General should have replied to her internal complaint of 17 August ...
- ...
that it should have referred the case to the Committee "quickly", since
the Committee was required to give its opinion within two months; that,
having received the file late, the Committee was late in issuing its
opinion; and that, "under the Tribunal's own statutes", the Director
General should have replied to her internal complaint of 17 August 2012
by 15 October 2012, whereas she was not notified of the impugned
decision until 9 January 2013.
2.
Eurocontrol considers that it did not display bad faith and
maintains that it respected the prescribed time limits.
3.
Article 92 of the Staff Regulations
relevantly
states that:
"1. Any person to whom these Staff Regulations apply may submit to the
Director General a request that he takes a decision relating to him. The
Director General shall notify the person concerned of his reasoned decision
within four months from the date on which the request was made. If at the ...
- ... the majority
recommendation of the Committee, the Principal Director of Resources
informed the complainant that:
"The medical reports provided the Insurance Scheme's Medical Adviser
with all the necessary evidence concerning the diagnosis, the progress of the
condition and the outcome of the treatment followed. However, none of the
practitioners consulted made specific recommendations with a view to official
recognition of a serious illness within the meaning of Eurocontrol or national
regulations. Therefore, contrary to the Committee's opinion, you did not
Judgment No. 3497
8
provide ‘detailed information' in support of that specific request. The
Insurance Scheme's Medical Adviser drew the appropriate conclusions from
the medical records that were sent. His conclusion was consistently reasoned
and based on the absence of a shortened life expectancy. At no time was any
scientific claim to the contrary made."
He ...
- Judgment 3496
120th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of his suspension and the reprimand that he subsequently received.
- ... Eurocontrol
120th Session Judgment No. 3496
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. D.
against the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 14 December 2012 and corrected on 21 January 2013,
Eurocontrol's reply of 17 May, the complainant's rejoinder of 13 August
and Eurocontrol's surrejoinder of 15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation
,
the French text alone
being authoritative.
D.
v.
Eurocontrol
120th Session Judgment No. 3496
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. D.
against the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 14 December 2012 and corrected on 21 January 2013,
Eurocontrol's reply of 17 May, the complainant's rejoinder of 13 August
and Eurocontrol's surrejoinder of 15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation
,
the French text alone
being authoritative.
D.
v.
Eurocontrol
120th Session Judgment No. 3496
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. D.
against the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 14 December 2012 and corrected on 21 January 2013,
Eurocontrol's reply of 17 May, the complainant's rejoinder of 13 August
and Eurocontrol's surrejoinder of 15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the lawfulness of his suspension and
the reprimand that he subsequently ...
- ... translation
,
the French text alone
being authoritative.
D.
v.
Eurocontrol
120th Session Judgment No. 3496
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. D.
against the European Organisation for the Safety of Air Navigation
(Eurocontrol) on 14 December 2012 and corrected on 21 January 2013,
Eurocontrol's reply of 17 May, the complainant's rejoinder of 13 August
and Eurocontrol's surrejoinder of 15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the lawfulness of his suspension and
the reprimand that he subsequently received.
On 5 December 2011, after he was accused of having viewed ...
- ...
indecent photographs and made advances towards a colleague in his
workplace, the complainant, at that time assigned to the Operations
Division of the Maastricht Upper Area Control Centre, was issued a
reprimand.
He was at the centre of other incidents during a work-related
seminar held in a hotel in February 2012.
Judgment No. 3496
2
On 20 February, pursuant to Annex XIVa to the General Conditions
of Employment Governing Servants at the Eurocontrol Maastricht
Centre setting out disciplinary rules, and specifically Article 18
thereof dealing with suspension, the complainant was heard, in the
presence of several officials, by the Acting Director of the Centre.
A number of written witness statements were shown to those attending
the meeting, but not to the complainant himself. As the Acting Director
considered that these witness statements established that the
complainant's colleagues no longer wished to work with ...
- ... colleagues no longer wished to work with him owing
to his behaviour, it was decided to suspend the complainant from
his duties for two weeks starting from 20 February. By a letter of
21 February, the Acting Director confirmed this decision and asked
the complainant to undergo a medical examination with a view
to assessing his fitness to work in the safety critical environment of air
traffic control. The complainant, who was declared unfit for work
until 25 March by Eurocontrol's medical officer, was asked to consult
a psychiatrist. The psychiatrist submitted his report on 24 April, finding
that the complainant was fit to perform his duties. On 23 March the
complainant had been placed on sick leave by his doctor.
In the meantime, on 7 March 2012, the complainant had written
to the Director General making a request under Article 91, paragraph 1,
of the General Conditions of Employment for clarification of the facts
leading to his suspension, ...
- ... reprimand. It considered
that Article 6 of Annex XIVa had indeed been breached as the
complainant had not been heard before that measure was imposed. By
a memorandum of 6 February 2013, the Principal Director of Resources,
acting by delegation of the Director General, informed the complainant
that he endorsed the Committee's opinion and reminded him of his
obligations in terms of conduct. The reprimand was formally withdrawn
on 21 March 2013.
In its reply, Eurocontrol contends that the claim that the suspension
be quashed is irreceivable since the complainant did not challenge it
within the applicable time limit, and that following the withdrawal of
the reprimand of 5 June 2012, the complainant no longer has a cause
of action. The Organisation asks on a subsidiary basis that the complaint
be dismissed as unfounded.
In his rejoinder, in view of the adoption of the final decision of
6 February 2013 and the decision of 21 March 2013, ...
- ...
withdraws his claims for the quashing of the implicit rejection of his
internal complaint and the reprimand dated 5 June 2012 respectively.
He makes a new claim for material damages, namely the payment
with interest of his entire salary for the period from 21 February 2012
to 31 August 2013 — the date on which he ceased work on the grounds
of permanent total disability — less the amounts that he has already
received as remuneration.
In its surrejoinder, Eurocontrol submits that the claims for moral
and material damages are irreceivable for failure to exhaust internal
remedies.
Judgment No. 3496
4
CONSIDERATIONS
1.
The internal complaint dated 29 August 2012 was primarily
directed against the suspension imposed on the complainant by the
Acting Director of the Maastricht Centre on 20 February 2012.
2.
The suspension, which was limited to two weeks, was
motivated by concern for safety and ...
- ... against the suspension imposed on the complainant by the
Acting Director of the Maastricht Centre on 20 February 2012.
2.
The suspension, which was limited to two weeks, was
motivated by concern for safety and the smooth functioning of the
Operations Division to which the complainant was assigned.
This was not one of the disciplinary measures exhaustively listed
in Article 4 of Annex XIVa to the General Conditions of Employment
Governing Servants at the Eurocontrol Maastricht Centre; rather, this
was an interim measure taken on the basis of Article 18 of that Annex.
Since this precautionary measure imposes a constraint on the staff
member, it must be legally founded, justified by the requirements of
the organisation and in accordance with the principle of proportionality.
A measure of suspension will not be ordered except in cases of serious
misconduct. This decision is a matter of discretion and is subject
therefore to only ...
- Judgment 3495
120th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the fact that she was not promoted in the 2012 promotion exercise.
- ... Eurocontrol
120th Session Judgment No. 3495
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 November 2012, Eurocontrol's reply of 1 March 2013, the
complainant's rejoinder of 6 June and Eurocontrol's surrejoinder of 6
September 2013;
Considering the applications to intervene filed by Mr K. E. and
Mr Y. P. on 9 November 2012 and the ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
D.-E. (No. 4)
v.
Eurocontrol
120th Session Judgment No. 3495
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 November 2012, Eurocontrol's reply of 1 March 2013, the
complainant's rejoinder of 6 June and Eurocontrol's surrejoinder of 6
September 2013;
Considering the applications to intervene filed by Mr K. E. and
Mr Y. P. on 9 November 2012 and the letter of 1 March 2013 in
which Eurocontrol stated that it had no objection to these applications;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
D.-E. (No. 4)
v.
Eurocontrol
120th Session Judgment No. 3495
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 November 2012, Eurocontrol's reply of 1 March 2013, the
complainant's rejoinder of 6 June and Eurocontrol's surrejoinder of 6
September 2013;
Considering the applications to intervene filed by Mr K. E. and
Mr Y. P. on 9 November 2012 and the letter of 1 March 2013 in
which Eurocontrol stated that it had no objection to these applications;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for ...
- ... Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
D.-E. (No. 4)
v.
Eurocontrol
120th Session Judgment No. 3495
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 November 2012, Eurocontrol's reply of 1 March 2013, the
complainant's rejoinder of 6 June and Eurocontrol's surrejoinder of 6
September 2013;
Considering the applications to intervene filed by Mr K. E. and
Mr Y. P. on 9 November 2012 and the letter of 1 March 2013 in
which Eurocontrol stated that it had no objection to these applications;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be ...
- ...
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 November 2012, Eurocontrol's reply of 1 March 2013, the
complainant's rejoinder of 6 June and Eurocontrol's surrejoinder of 6
September 2013;
Considering the applications to intervene filed by Mr K. E. and
Mr Y. P. on 9 November 2012 and the letter of 1 March 2013 in
which Eurocontrol stated that it had no objection to these applications;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2012 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force ...
- ... it had no objection to these applications;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that she was not promoted in
the 2012 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, the details of which are set out in Judgment
3189. At that juncture, the non-operational B and C staff categories
were replaced for a two-year transitional period with the categories B*
and C*. On 1 July 2010, at the end of that transitional period, these
two categories were merged in the Assistant function group (AST),
Judgment No. 3495
2
which has 11 grades (AST1 to AST11) grouped in several grade brackets.
At the material time, the complainant ...
- ... on 8 March 2012. In
substance it announced that "a procedure for grade promotion [was]
being organised for 2012" and that, for that purpose, "the list of staff
eligible for promotion [would] comprise those officials and servants
who [had] at least two years' seniority in their grade in 2012 and
[were] not yet in the last grade of their respective career bracket as
determined in the most recent decision concerning their administrative
status".
The list of Eurocontrol staff members eligible for promotion was
published on 21 March 2012. As the complainant's name was not on
the list, she lodged an internal complaint on 12 June. She requested
the cancellation of the list and the holding of a promotion exercise in
which her merits would undergo comparative examination.
When the complainant filed her complaint with the Tribunal on
9 November 2012 she had not yet received any response to her internal
complaint. She therefore impugned what ...
- ... that
Judgment No. 3495
3
the internal complaint be allowed in accordance with the "principle of
legitimate expectations" and the "right to a career", whereas the other
two members recommended that it be dismissed, since they held that
the complainant was not eligible for promotion under Rule of Application
No. 4 concerning the procedure for grade promotion provided for in
Article 45 of the Staff Regulations governing officials of the Eurocontrol
Agency, as confirmed by Office Notice No. 10/12. The complainant
was informed by a memorandum of 10 December 2012 that, in
accordance with the opinion of the latter two members of the Joint
Committee for Disputes, her internal complaint had been dismissed by
the Director General. In her rejoinder, the complainant requests that
that decision be quashed.
Eurocontrol asks the Tribunal to join this complaint with another
case concerning the same issue. It submits that ...
- ... for grade promotion provided for in
Article 45 of the Staff Regulations governing officials of the Eurocontrol
Agency, as confirmed by Office Notice No. 10/12. The complainant
was informed by a memorandum of 10 December 2012 that, in
accordance with the opinion of the latter two members of the Joint
Committee for Disputes, her internal complaint had been dismissed by
the Director General. In her rejoinder, the complainant requests that
that decision be quashed.
Eurocontrol asks the Tribunal to join this complaint with another
case concerning the same issue. It submits that the complaint is
irreceivable in part, because the claim that the list of officials
promoted in 2012 should be cancelled is in effect a request that the
Tribunal order it to promote the complainant. It asks the Tribunal to
dismiss the complaint as irreceivable insofar as the complainant
alleges that Rule of Application No. 35 is unlawful. It considers all her
other claims ...
- ...
case concerning the same issue. It submits that the complaint is
irreceivable in part, because the claim that the list of officials
promoted in 2012 should be cancelled is in effect a request that the
Tribunal order it to promote the complainant. It asks the Tribunal to
dismiss the complaint as irreceivable insofar as the complainant
alleges that Rule of Application No. 35 is unlawful. It considers all her
other claims to be groundless.
In its surrejoinder, Eurocontrol submits that insofar as the
complaint seeks the cancellation of all the decisions taken after the
publication of the list of staff eligible for promotion and in the context
of the 2012 exercise, including the list of promoted officials, it is not
receivable, since the complainant must impugn specific acts causing
her injury.
CONSIDERATIONS
1.
In this complaint, filed with the Registry of the Tribunal on
9 November 2012, the complainant impugns the implied decision ...
- ... in her rejoinder, the complaint may be regarded as being
directed against that decision.
3.
Two applications to intervene have been filed.
The Organisation does not object to these applications because, in
its opinion, the interveners are in situations in fact and in law similar
to that of the complainant.
4.
The details of the complainant's career may be found in
Judgment 3494 also delivered on this day.
5.
The promotion procedure in Eurocontrol is governed mainly
by Article 45 of the Staff Regulations, which states in its first
subparagraph that "[p]romotion shall be by decision of the Director
General subject to availability of budgetary funds. It shall be effective
by appointment of the official to the next higher grade in the function
group to which he belongs. The next higher grade should, as a rule, be
within the grade bracket as defined in the job description."
Article 6 of Rule of Application No. 4 concerning ...
- ... "[o]nly officials entered on the promotion
lists previously published in the Agency may be promoted".
6.
Amongst other things, the complainant asks the Tribunal to
cancel the list of staff eligible for promotion in the 2012 exercise,
which was published on 21 March 2012 following Office Notice
No. 10/12 of 8 March 2012, since her name was not included in it, to
quash the decision dismissing the internal complaint which she lodged
on 12 June 2012 and to order Eurocontrol to pay 1,500 euros in
compensation for moral injury, and to bear the full costs of proceedings,
which she estimates at 5,000 euros.
Judgment No. 3495
5
7.
Eurocontrol requests the joinder of this complaint with another
case. This request has, however, become moot since the Tribunal has
already ruled on that other case in Judgment 3404, delivered on
11 February 2015.
8.
The complainant contends, first, that for several years she ...
- ... for promotion in the 2012 exercise,
which was published on 21 March 2012 following Office Notice
No. 10/12 of 8 March 2012, since her name was not included in it, to
quash the decision dismissing the internal complaint which she lodged
on 12 June 2012 and to order Eurocontrol to pay 1,500 euros in
compensation for moral injury, and to bear the full costs of proceedings,
which she estimates at 5,000 euros.
Judgment No. 3495
5
7.
Eurocontrol requests the joinder of this complaint with another
case. This request has, however, become moot since the Tribunal has
already ruled on that other case in Judgment 3404, delivered on
11 February 2015.
8.
The complainant contends, first, that for several years she
has met the minimum conditions of seniority in her grade, as laid
down in Article 45 of the Staff Regulations, for receiving promotion;
that as she holds grade AST5, she has not yet attained the highest ...
- ... of her complaint, she enters several pleas, namely
that her right to career advancement was breached, that Article 45 of
the Staff Regulations was violated, that Rule of Application No. 35 is
unlawful and that the principle of equal treatment and the duty of care
have been breached.
10.
In her first plea, the complainant submits that by refusing to
include her name on the "list of promotable officials" and to consider
her candidature for a possible promotion, Eurocontrol breached her
right to career advancement.
11.
As the Tribunal has already held in a similar case involving
Eurocontrol and another official, while every official should have some
prospect of advancement within an organisation and may therefore
legitimately hope to move up to a higher position one day, there is no
automatic right to promotion. This right is limited, on the one hand, by
the official's seniority, qualifications, skills and performance and, on the ...
- ... Regulations was violated, that Rule of Application No. 35 is
unlawful and that the principle of equal treatment and the duty of care
have been breached.
10.
In her first plea, the complainant submits that by refusing to
include her name on the "list of promotable officials" and to consider
her candidature for a possible promotion, Eurocontrol breached her
right to career advancement.
11.
As the Tribunal has already held in a similar case involving
Eurocontrol and another official, while every official should have some
prospect of advancement within an organisation and may therefore
legitimately hope to move up to a higher position one day, there is no
automatic right to promotion. This right is limited, on the one hand, by
the official's seniority, qualifications, skills and performance and, on the
other, by the Organisation's administrative structure and budgetary
resources (see Judgment 3404, under 8, and the case law cited ...
- ... third plea is therefore irrelevant.
16.
The complainant's last plea is that the principle of equal
treatment and the duty of care have been breached because, in her
view, all officials with at least two years' seniority in their grade and
who have not reached the last grade in their function group are, as a
matter of principle, eligible for promotion.
She considers that, by refusing to examine her merits and thus
denying her the possibility of a promotion, Eurocontrol discriminated
against her in comparison with those of her colleagues whose merits
were examined.
17.
According to the Tribunal's case law, the principle of equal
treatment applies to officials in a similar situation in law and in fact.
Judgment No. 3495
8
That is not the case here, since the complainant has not identified any
official in the same situation as her who was included in the list of
officials eligible for promotion in 2012. ...
- ...
18.
The Tribunal considers that, in the present case, the
complainant may not rely on breach of the duty of care, since she
could not lawfully be included in the list of officials eligible for
promotion in 2012 (see, in particular, Judgment 3404, under 18).
19.
As none of the pleas may be accepted, the complaint must be
dismissed, as must the applications to intervene, without there being any
need to rule on the objections to receivability raised by Eurocontrol.
DECISION
For the above reasons,
The complaint is dismissed, as are the applications to intervene.
In witness of this judgment, adopted on 30 April 2015, Mr Claude
Rouiller, Vice-President of the Tribunal, Mr Seydou Ba, Judge, and
Mr Patrick Frydman, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered in public in Geneva on 30 June 2015.
(Signed)
C
LAUDE
R
OUILLER
S
EYDOU
B
A
P
ATRICK
F
RYDMAN
D
RAŽEN ...
- Judgment 3494
120th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her candidature for a position in Eurocontrol.
- ... Eurocontrol
120th Session Judgment No. 3494
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 October 2012, Eurocontrol's reply of 17 January 2013, the
complainant's rejoinder of 8 March and Eurocontrol's surrejoinder of
14 June 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-E. (No. 3)
v.
Eurocontrol
120th Session Judgment No. 3494
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 October 2012, Eurocontrol's reply of 17 January 2013, the
complainant's rejoinder of 8 March and Eurocontrol's surrejoinder of
14 June 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the rejection of her candidature ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-E. (No. 3)
v.
Eurocontrol
120th Session Judgment No. 3494
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 October 2012, Eurocontrol's reply of 17 January 2013, the
complainant's rejoinder of 8 March and Eurocontrol's surrejoinder of
14 June 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the rejection of her candidature for a
position in Eurocontrol. ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-E. (No. 3)
v.
Eurocontrol
120th Session Judgment No. 3494
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms N. D.-E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 October 2012, Eurocontrol's reply of 17 January 2013, the
complainant's rejoinder of 8 March and Eurocontrol's surrejoinder of
14 June 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the rejection of her candidature for a
position in Eurocontrol.
The complainant joined Eurocontrol on 1 April 1999 as a Typist
2
nd
class, ...
- ... reply of 17 January 2013, the
complainant's rejoinder of 8 March and Eurocontrol's surrejoinder of
14 June 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the rejection of her candidature for a
position in Eurocontrol.
The complainant joined Eurocontrol on 1 April 1999 as a Typist
2
nd
class, at grade C5.
Between January 2011 and February 2012 she held a post of
Advanced Secretary in grade AST5 (former grade C2) in the grade
bracket AST2-AST5 in the Network Management Directorate (DNM).
As from 1 March 2012 she held the post of staff union secretary,
still at grade AST5.
Judgment No. 3494
2
In pursuance of the "iMOVE" mobility policy which had been ...
- ... rejoinder of 8 March and Eurocontrol's surrejoinder of
14 June 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the rejection of her candidature for a
position in Eurocontrol.
The complainant joined Eurocontrol on 1 April 1999 as a Typist
2
nd
class, at grade C5.
Between January 2011 and February 2012 she held a post of
Advanced Secretary in grade AST5 (former grade C2) in the grade
bracket AST2-AST5 in the Network Management Directorate (DNM).
As from 1 March 2012 she held the post of staff union secretary,
still at grade AST5.
Judgment No. 3494
2
In pursuance of the "iMOVE" mobility policy which had been
introduced by Information Note to ...
- ... who applied for this post, was informed the
following day (27 March 2012) that her candidature had been rejected
because her grade bracket, AST2-AST5, did not match that of the post
advertised.
On 25 June 2012 the complainant lodged an internal complaint
against the decision of 27 March 2012 to reject her candidature. She
requested that this decision be cancelled and that a procedure in
accordance with the Staff Regulations governing officials of the
Eurocontrol Agency and the Rules of Application thereof be organised
with the publication of a vacancy notice. She also requested that
the "iMOVE" procedure should not be applied.
Having received no response to her internal complaint, on
10 October 2012 the complainant filed a complaint with the Tribunal
under Article VII, paragraph 3, of its Statute, in which she requested
the quashing of what she regarded as the implied dismissal of her
internal complaint, the quashing of the decision ...
- ... a complaint with the Tribunal
under Article VII, paragraph 3, of its Statute, in which she requested
the quashing of what she regarded as the implied dismissal of her
internal complaint, the quashing of the decision of 27 March 2012
rejecting her application for the post of Technical Contracts Assistant
(Administrative Assistant), and the cancellation of the "iMOVE
procedure" and of any decision concerning her which had been
taken pursuant to it. She asked that Eurocontrol be ordered to pay
"20,000 euros in compensation for the injury [suffered by her through]
loss of an opportunity for career advancement […] on account of that
fact that she had been deprived of the possibility of moving up to a
higher grade bracket", and "5,000 euros in compensation for the moral
injury [suffered]" and costs in the amount of 5,000 euros.
Eurocontrol asks the Tribunal to find the complaint irreceivable
and, subsidiarily, it requests the dismissal of all ...
- ...
procedure" and of any decision concerning her which had been
taken pursuant to it. She asked that Eurocontrol be ordered to pay
"20,000 euros in compensation for the injury [suffered by her through]
loss of an opportunity for career advancement […] on account of that
fact that she had been deprived of the possibility of moving up to a
higher grade bracket", and "5,000 euros in compensation for the moral
injury [suffered]" and costs in the amount of 5,000 euros.
Eurocontrol asks the Tribunal to find the complaint irreceivable
and, subsidiarily, it requests the dismissal of all the complainant's
claims as unfounded.
Judgment No. 3494
3
CONSIDERATIONS
1.
The complainant challenges the decision to reject her
candidature for a job vacancy announced under the new iMOVE mobility
policy, because her grade bracket did not match that of the post
advertised.
Receivability
2.
Eurocontrol challenges ...
- ...
Eurocontrol asks the Tribunal to find the complaint irreceivable
and, subsidiarily, it requests the dismissal of all the complainant's
claims as unfounded.
Judgment No. 3494
3
CONSIDERATIONS
1.
The complainant challenges the decision to reject her
candidature for a job vacancy announced under the new iMOVE mobility
policy, because her grade bracket did not match that of the post
advertised.
Receivability
2.
Eurocontrol challenges the receivability of the complaint on
the basis that the complainant did not seek the cancellation of the
"iMOVE procedure" in her internal complaint, that the present
complaint is without object and that she does not have a "sufficiently
real personal cause of action".
3.
It submits, firstly, that in her internal complaint of 25 June 2012
the complainant did not request "the cancellation of the iMOVE
procedure" in general, as introduced by Note No. ...
- ... applied, the complainant intended to challenge the lawfulness of
that procedure.
She cannot therefore be considered to have entered a new claim.
In fact, she remains within the bounds of the claims in her internal
complaint when, as an incidental claim, she asks the Tribunal to
cancel Note No. I.09/05.
Judgment No. 3494
4
6.
With reference to the claim that the "iMOVE opportunity
2012-004" competition procedure should be cancelled, Eurocontrol
states that this procedure proved unsuccessful and was closed because
the suitable candidates withdrew, and that a new "iMOVE opportunity
2012-044" was published, for which the complainant could have
applied, as it was in her grade bracket, but she did not do so. It submits
that, when the complaint was filed, it concerned a post that no longer
existed. Referring to the precedent established by the Tribunal in
Judgment 1357, under 11, it asserts that Eurocontrol was "free ...
- ... Eurocontrol
states that this procedure proved unsuccessful and was closed because
the suitable candidates withdrew, and that a new "iMOVE opportunity
2012-044" was published, for which the complainant could have
applied, as it was in her grade bracket, but she did not do so. It submits
that, when the complaint was filed, it concerned a post that no longer
existed. Referring to the precedent established by the Tribunal in
Judgment 1357, under 11, it asserts that Eurocontrol was "free to
withdraw a notice of vacancy at any time". In its view, the complaint
is therefore without object
and must be dismissed as irreceivable.
7.
The Tribunal considers that, even if Eurocontrol did in fact
withdraw the vacancy notice, given that it did so after the complainant
had been excluded from the competition procedure and after she had
lodged her internal complaint, that complaint did have substance at the
time it was filed and the decision to ...
- ...
applied, as it was in her grade bracket, but she did not do so. It submits
that, when the complaint was filed, it concerned a post that no longer
existed. Referring to the precedent established by the Tribunal in
Judgment 1357, under 11, it asserts that Eurocontrol was "free to
withdraw a notice of vacancy at any time". In its view, the complaint
is therefore without object
and must be dismissed as irreceivable.
7.
The Tribunal considers that, even if Eurocontrol did in fact
withdraw the vacancy notice, given that it did so after the complainant
had been excluded from the competition procedure and after she had
lodged her internal complaint, that complaint did have substance at the
time it was filed and the decision to dismiss it produced effects open
to review by the Tribunal.
8.
Eurocontrol contends that the complainant has no real cause
of action to challenge either the selection procedure that was followed
or the ...
- ...
is therefore without object
and must be dismissed as irreceivable.
7.
The Tribunal considers that, even if Eurocontrol did in fact
withdraw the vacancy notice, given that it did so after the complainant
had been excluded from the competition procedure and after she had
lodged her internal complaint, that complaint did have substance at the
time it was filed and the decision to dismiss it produced effects open
to review by the Tribunal.
8.
Eurocontrol contends that the complainant has no real cause
of action to challenge either the selection procedure that was followed
or the lawfulness of the "iMOVE procedure".
9.
However, as the Tribunal has consistently held, anyone who
applies for a post to be filled by some process of selection is entitled
to have her or his application considered in good faith and in keeping
with the basic rules of fair and open competition. That is a right that
every applicant must enjoy, ...
- ... open competition. That is a right that
every applicant must enjoy, whatever her or his hopes of success may
be (see Judgments 1549, under 9, 2163, under 1, or 3209, under 11).
In the instant case, the complainant does indeed have a cause of
action in challenging the lawfulness of the procedure followed which,
she contends, led to the rejection of her candidature.
10.
It may be concluded from the foregoing that none of the
objections to receivability raised by Eurocontrol may be accepted.
Judgment No. 3494
5
The merits
11.
The complainant challenges the lawfulness of the procedure
used to fill the post for which she applied, firstly, because the
Principal Director of Resources had no authority to adopt general
decisions for giving effect to the Staff Regulations and, secondly,
because the procedures applying to a change of duties within
Eurocontrol were not respected.
12.
She contends that ...
- ... of the
objections to receivability raised by Eurocontrol may be accepted.
Judgment No. 3494
5
The merits
11.
The complainant challenges the lawfulness of the procedure
used to fill the post for which she applied, firstly, because the
Principal Director of Resources had no authority to adopt general
decisions for giving effect to the Staff Regulations and, secondly,
because the procedures applying to a change of duties within
Eurocontrol were not respected.
12.
She contends that Note No. I.09/05, on which the
Administration based the organisation of the recruitment procedure
and its rejection of her candidature, "was adopted unilaterally, with no
consultation whatsoever and completely unlawfully by the Principal
Director of Resources, even though it referred to the Staff Regulations
governing officials of the Eurocontrol Agency". She emphasises that
the Director in fact had no authority to adopt ...
- ...
because the procedures applying to a change of duties within
Eurocontrol were not respected.
12.
She contends that Note No. I.09/05, on which the
Administration based the organisation of the recruitment procedure
and its rejection of her candidature, "was adopted unilaterally, with no
consultation whatsoever and completely unlawfully by the Principal
Director of Resources, even though it referred to the Staff Regulations
governing officials of the Eurocontrol Agency". She emphasises that
the Director in fact had no authority to adopt general provisions for
giving effect to the Staff Regulations, since they may be determined
only by the Rules of Application, in accordance with the procedure
set forth in Article 100 of the Staff Regulations, which reads:
"The general provisions for giving effect to these Staff Regulations shall be
determined by Rules of Application, implementing rules and office notices of
the Director General, ...
- ... Principal Director of Resources and that it contains general
provisions for giving effect to the Staff Regulations which, according
to Article 100 of the Staff Regulations, must be determined by Rules
of Application, implementing rules and office notices of the Director
Judgment No. 3494
6
General. It is clear from the provisions of Article 100 cited above that
only individual implementing decisions may be delegated.
14.
On this plea, Eurocontrol replies that in 2009 the internal
structure of Eurocontrol was reorganised and that, in accordance with
a decision of the Director General which was then in force, the
Principal Director of Resources was fully authorised to adopt measures
regarding internal staff mobility.
15.
The Tribunal finds, however, that the document to which
Eurocontrol refers describes the post and duties of the Principal
Director of Resources and may under no circumstances be regarded ...
- ...
provisions for giving effect to the Staff Regulations which, according
to Article 100 of the Staff Regulations, must be determined by Rules
of Application, implementing rules and office notices of the Director
Judgment No. 3494
6
General. It is clear from the provisions of Article 100 cited above that
only individual implementing decisions may be delegated.
14.
On this plea, Eurocontrol replies that in 2009 the internal
structure of Eurocontrol was reorganised and that, in accordance with
a decision of the Director General which was then in force, the
Principal Director of Resources was fully authorised to adopt measures
regarding internal staff mobility.
15.
The Tribunal finds, however, that the document to which
Eurocontrol refers describes the post and duties of the Principal
Director of Resources and may under no circumstances be regarded
as a valid delegation of power authorising the holder of ...
- ... of Article 100 cited above that
only individual implementing decisions may be delegated.
14.
On this plea, Eurocontrol replies that in 2009 the internal
structure of Eurocontrol was reorganised and that, in accordance with
a decision of the Director General which was then in force, the
Principal Director of Resources was fully authorised to adopt measures
regarding internal staff mobility.
15.
The Tribunal finds, however, that the document to which
Eurocontrol refers describes the post and duties of the Principal
Director of Resources and may under no circumstances be regarded
as a valid delegation of power authorising the holder of that post to
take general decisions. Moreover, as stated above, Article 100 of the
Staff Regulations permits delegation only in respect of individual
implementing decisions.
16.
In accordance with the Tribunal's case law, in order to be
valid, a delegation of authority must have some ...
- ... post to
take general decisions. Moreover, as stated above, Article 100 of the
Staff Regulations permits delegation only in respect of individual
implementing decisions.
16.
In accordance with the Tribunal's case law, in order to be
valid, a delegation of authority must have some basis in the rules.
Failing that, any action will be ultra vires (see, for example, Judgment
1696, under 5, and the case
law cited therein).
17.
In the present case Eurocontrol has not established that
the Principal Director of Resources had received a valid delegation
of authority to adopt general provisions such as those contained
in Note No. I.09/05. It follows that by issuing that note, which is not
an individual decision but a regulatory text defining the procedures
applying to a change of duties within Eurocontrol, the Principal
Director of Resources acted ultra vires. For this reason, Note
No. I.09/05 is unlawful.
The decision ...
- ... vires (see, for example, Judgment
1696, under 5, and the case
law cited therein).
17.
In the present case Eurocontrol has not established that
the Principal Director of Resources had received a valid delegation
of authority to adopt general provisions such as those contained
in Note No. I.09/05. It follows that by issuing that note, which is not
an individual decision but a regulatory text defining the procedures
applying to a change of duties within Eurocontrol, the Principal
Director of Resources acted ultra vires. For this reason, Note
No. I.09/05 is unlawful.
The decision of 27 March 2012 rejecting the complainant's
candidature for the post of Technical Contracts Assistant (Administrative
Assistant) and the implied decision dismissing her internal complaint,
which were taken on the basis of that note, must therefore be quashed,
without there being any need to rule on the complainant's second plea.
Judgment No. ...
- ... I.09/05 is unlawful.
The decision of 27 March 2012 rejecting the complainant's
candidature for the post of Technical Contracts Assistant (Administrative
Assistant) and the implied decision dismissing her internal complaint,
which were taken on the basis of that note, must therefore be quashed,
without there being any need to rule on the complainant's second plea.
Judgment No. 3494
7
18.
The complainant asks the Tribunal to order Eurocontrol to
pay the sum of 20,000 euros in compensation for the injury suffered
owing to the loss of an opportunity for career development, in that she
was denied access to a higher grade bracket, in violation of her right to
career advancement.
19.
The Tribunal will not award the complainant the compensation
she claims for loss of opportunity because, under the provisions of the
Staff Regulations in force, Eurocontrol officials may not in principle
be promoted to a ...
- ... complainant asks the Tribunal to order Eurocontrol to
pay the sum of 20,000 euros in compensation for the injury suffered
owing to the loss of an opportunity for career development, in that she
was denied access to a higher grade bracket, in violation of her right to
career advancement.
19.
The Tribunal will not award the complainant the compensation
she claims for loss of opportunity because, under the provisions of the
Staff Regulations in force, Eurocontrol officials may not in principle
be promoted to a higher grade bracket except through a competition
(see Judgment 3404, under 8). However, the Tribunal considers that
the unlawful situation noted under 17 above caused the complainant
moral injury, for which compensation shall be granted in the amount
of 5,000 euros.
20.
As the complainant succeeds in part, she is entitled to costs
which the Tribunal also sets at 5,000 euros.
DECISION
For the above reasons, ...
- ... under 17 above caused the complainant
moral injury, for which compensation shall be granted in the amount
of 5,000 euros.
20.
As the complainant succeeds in part, she is entitled to costs
which the Tribunal also sets at 5,000 euros.
DECISION
For the above reasons,
1.
The decision of 27 March 2012 rejecting the complainant's
candidature and the implied decision dismissing her internal
complaint against that decision are quashed.
2.
Eurocontrol shall pay the complainant 5,000 euros in compensation
for moral injury.
3.
It shall likewise pay her costs in the amount of 5,000 euros.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 7 May 2015, Mr Claude
Rouiller, Vice-President of the Tribunal, Mr Seydou Ba, Judge, and
Mr Patrick Frydman, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Judgment No. 3494
8
Delivered in public in Geneva ...
- Judgment 3493
120th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant takes issue with the fact that his remuneration is lower than that received by a colleague in a lower grade.
- ... Eurocontrol
120th Session Judgment No. 3493
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. V. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 24 December 2012, Eurocontrol's reply of 3 May 2013, the
complainant's rejoinder of 7 August and Eurocontrol's surrejoinder of
15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
Z. (No. 2)
v.
Eurocontrol
120th Session Judgment No. 3493
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. V. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 24 December 2012, Eurocontrol's reply of 3 May 2013, the
complainant's rejoinder of 7 August and Eurocontrol's surrejoinder of
15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant takes issue with the fact that his ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
Z. (No. 2)
v.
Eurocontrol
120th Session Judgment No. 3493
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. V. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 24 December 2012, Eurocontrol's reply of 3 May 2013, the
complainant's rejoinder of 7 August and Eurocontrol's surrejoinder of
15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant takes issue with the fact that his remuneration is
lower than that received ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
Z. (No. 2)
v.
Eurocontrol
120th Session Judgment No. 3493
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. V. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 24 December 2012, Eurocontrol's reply of 3 May 2013, the
complainant's rejoinder of 7 August and Eurocontrol's surrejoinder of
15 November 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant takes issue with the fact that his remuneration is
lower than that received by a colleague in a lower grade.
The members of the operational staff of ...
- ... may be summed up as follows:
The complainant takes issue with the fact that his remuneration is
lower than that received by a colleague in a lower grade.
The members of the operational staff of the Central Flow
Management Unit (CFMU) are divided into two groups: E1 comprising
staff ensuring the continuous operation of the CFMU and E2 comprising
operational support staff. As of 1 July 2008, following the entry into
force of a wide-ranging administrative reform at Eurocontrol, the
details of which are to be found in Judgment 3189, a multiplication
factor equal to the ratio between the basic salary paid on 30 June 2008
and that shown in the new salary scale resulting from the reform was
Judgment No. 3493
2
applied to their remuneration. In most cases this factor was less than 1.
Progress towards a multiplication factor of 1 was to be achieved through
promotion and seniority progression, and officials were integrated in ...
- ... his internal complaint in accordance with the opinion of the
latter two members of the Joint Committee for Disputes. The complainant
states that he received this memorandum on 25 September.
Judgment No. 3493
3
On 24 December 2012 the complainant filed a complaint with the
Tribunal in which he asks it to set aside the impugned decision and all
his payslips as from October 2011, and to award him costs in the
amount of 5,000 euros.
Eurocontrol asks the Tribunal to examine the receivability of the
complaint on the basis that it may be time-barred, and to dismiss all of
the complainant's claims as unfounded.
CONSIDERATIONS
1.
The purpose of the new grade and step structure and new
salary scale which entered into force at Eurocontrol on 1 July 2008 was
to modernise human resources management and, in particular, to place
greater emphasis on staff members' performance. That being the aim
of the reform, ...
- ...
Tribunal in which he asks it to set aside the impugned decision and all
his payslips as from October 2011, and to award him costs in the
amount of 5,000 euros.
Eurocontrol asks the Tribunal to examine the receivability of the
complaint on the basis that it may be time-barred, and to dismiss all of
the complainant's claims as unfounded.
CONSIDERATIONS
1.
The purpose of the new grade and step structure and new
salary scale which entered into force at Eurocontrol on 1 July 2008 was
to modernise human resources management and, in particular, to place
greater emphasis on staff members' performance. That being the aim
of the reform, the latter was not intended to have an adverse impact on
the situation of either operational or non-operational staff. In other
words, the new classification of functions was to give all officails who
had joined Eurocontrol before 1 July 2008 a grade offering remuneration
and scope for increases equivalent ...
- ... grade and step structure and new
salary scale which entered into force at Eurocontrol on 1 July 2008 was
to modernise human resources management and, in particular, to place
greater emphasis on staff members' performance. That being the aim
of the reform, the latter was not intended to have an adverse impact on
the situation of either operational or non-operational staff. In other
words, the new classification of functions was to give all officails who
had joined Eurocontrol before 1 July 2008 a grade offering remuneration
and scope for increases equivalent to those offered by the grade which
they had held under the previous classification.
2.
That result was to be achieved by means of a multiplication
factor equal to the ratio between the basic salary paid before that date
and that shown in the new salary scale.
As the multiplication factor is generally lower than 1, progress
towards this figure is now made through promotion and seniority ...
- ... that this colleague accessed the FCO8-FCO10
career bracket only because he passed a competitive examination after
the entry into force of the reform, whereas he himself had passed a
similar competitive examination 16 years earlier which already enabled
him to be entrusted with functions in an equivalent grade bracket in
the old structure.
From this the complainant infers that Article 7 of Part 2 of Annex
XIII to the Staff Regulations governing officials of the Eurocontrol
Agency, which sets out the method of calculating this multiplication
factor, is unlawful in that it has given rise to discrimination against
him. He also alleges a breach of Article 66 of the Staff Regulations
and of Annex III to these Staff Regulations, which establishes the
salary scale applicable to all Eurocontrol officials, although he does
not state any particular reasons for this.
Judgment No. 3493
5
6.
Eurocontrol submits several ...
- ... in
the old structure.
From this the complainant infers that Article 7 of Part 2 of Annex
XIII to the Staff Regulations governing officials of the Eurocontrol
Agency, which sets out the method of calculating this multiplication
factor, is unlawful in that it has given rise to discrimination against
him. He also alleges a breach of Article 66 of the Staff Regulations
and of Annex III to these Staff Regulations, which establishes the
salary scale applicable to all Eurocontrol officials, although he does
not state any particular reasons for this.
Judgment No. 3493
5
6.
Eurocontrol submits several documents in order to explain
why the salary status of the two persons in question is not the same
and comments that administrative errors committed by its services might
have given rise to some confusion in that connection
.
When the reform entered into force, the complainant had reached
the last grade in his ...
- ... of the Eurocontrol
Agency, which sets out the method of calculating this multiplication
factor, is unlawful in that it has given rise to discrimination against
him. He also alleges a breach of Article 66 of the Staff Regulations
and of Annex III to these Staff Regulations, which establishes the
salary scale applicable to all Eurocontrol officials, although he does
not state any particular reasons for this.
Judgment No. 3493
5
6.
Eurocontrol submits several documents in order to explain
why the salary status of the two persons in question is not the same
and comments that administrative errors committed by its services might
have given rise to some confusion in that connection
.
When the reform entered into force, the complainant had reached
the last grade in his career bracket. This was not the case of his colleague,
who could therefore be automatically promoted to the higher grade,
which increased the ...
- ... When this colleague passed
a competitive examination after 1 July 2008, he took up duties different
to those of the complainant, though they were still classed in the same
career bracket; had he not passed the competitive examination his
remuneration would have remained lower than that of the complainant
for several years. It then overtook it only temporarily as a result not of
any change in the multiplication factor, but of an increase in basic salary.
In Eurocontrol's opinion, the disparity in remuneration to which the
complainant objects is not due to any malfunctioning of the new system
for classifying functions. It is lawfully part of this system, one of the
consequences of which was that those who were at the top of their
career bracket prior to the reform would, for a while, not have the
same prospects of promotion as those whose career was less advanced.
This consequence, which was known from the outset, will be gradually
corrected ...
- ... that
provided for in the "passport" which he received when the reform
entered into force and from which he will benefit until the end of
his career with the Organisation. As from I June 2020 he should also
Judgment No. 3493
6
benefit from the application of the "bonus" for which provision is
made in Appendix II, paragraph 3, of the Staff Regulations.
7.
None of the arguments put forward by the complainant is
sufficient to disprove Eurocontrol's observations and explanations, or
to invalidate the legal conclusions which must be drawn from them
.
The Tribunal finds that the initial position of the two persons
concerned when the reform entered into force explains the temporary
disparity in their remuneration; this disparity does not stem either from
the alleged unlawfulness of the method for applying the multiplication
factor laid down in Article 7 of Part 2 of Annex XIII to the Staff
Regulations, or from ...
- ... the Organisation, rather
than objecting to Article 7 of Part 2 of Annex XIII to the Staff Regulations
and the manner in which it was applied to him. They certainly do not
demonstrate that the multiplication factor provided for in the Staff
Regulations has had a discriminatory effect on his
remuneration.
9.
The Tribunal, bearing in mind the wage neutrality inherent in
the wide-ranging reform of grade structures approved by the Permanent
Commission of Eurocontrol in 2006 and implemented in 2008, considers
that this reform should not, for any reason whatsoever, lead to the
award of any financial advantages to any official or category of officials
(see Judgment 3189, in particular under 10). It would manifestly upset
the balance of this reform, the immediate effects of which are purely
formal, if a compensatory allowance were to be granted to officials
whose function is classed at the top of a career bracket, on the grounds
that ...
- ... 3189, in particular under 10). It would manifestly upset
the balance of this reform, the immediate effects of which are purely
formal, if a compensatory allowance were to be granted to officials
whose function is classed at the top of a career bracket, on the grounds
that their short-term prospects for advancement are more limited
than those of officials whose function is classed at a lower step. Such
disparities do not breach the principle of equal treatment, since
Eurocontrol has introduced corrective mechanisms, in the form of a
"passport" and a "bonus", the effect of which may, in the eyes of the
Judgment No. 3493
7
persons concerned, seem too far-removed in time, but which must be
deemed satisfactory in this respect.
10.
It may be concluded from the foregoing that none of the
complainant's pleas is well-founded. The complaint must therefore be
dismissed without there being any need to rule on Eurocontrol's ...
- ... has introduced corrective mechanisms, in the form of a
"passport" and a "bonus", the effect of which may, in the eyes of the
Judgment No. 3493
7
persons concerned, seem too far-removed in time, but which must be
deemed satisfactory in this respect.
10.
It may be concluded from the foregoing that none of the
complainant's pleas is well-founded. The complaint must therefore be
dismissed without there being any need to rule on Eurocontrol's objection
to receivability.
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 30 April 2015, Mr Claude
Rouiller, Vice-President of the Tribunal, Mr Seydou Ba, Judge, and
Mr Patrick Frydman, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered in public in Geneva on 30 June 2015.
(Signed)
C
LAUDE
R
OUILLER
S
EYDOU
B
A
P
ATRICK
F
RYDMAN
D
RAŽEN ...
- Judgment 3492
120th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant takes issue with the fact that her remuneration is lower than that received by a colleague in a lower grade.
- ... Eurocontrol
120th Session Judgment No. 3492
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms A. D. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
3 September 2012, Eurocontrol's reply of 14 December 2012, the
complainant's rejoinder of 26 March 2013 and Eurocontrol's surrejoinder
of 28 June 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
B. (No. 3)
v.
Eurocontrol
120th Session Judgment No. 3492
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms A. D. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
3 September 2012, Eurocontrol's reply of 14 December 2012, the
complainant's rejoinder of 26 March 2013 and Eurocontrol's surrejoinder
of 28 June 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant takes issue with the fact that her remuneration ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
B. (No. 3)
v.
Eurocontrol
120th Session Judgment No. 3492
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms A. D. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
3 September 2012, Eurocontrol's reply of 14 December 2012, the
complainant's rejoinder of 26 March 2013 and Eurocontrol's surrejoinder
of 28 June 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant takes issue with the fact that her remuneration is
lower than that received ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
B. (No. 3)
v.
Eurocontrol
120th Session Judgment No. 3492
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms A. D. B. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
3 September 2012, Eurocontrol's reply of 14 December 2012, the
complainant's rejoinder of 26 March 2013 and Eurocontrol's surrejoinder
of 28 June 2013;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant takes issue with the fact that her remuneration is
lower than that received by a colleague in a lower grade.
The members of the operational staff of the Central Flow ...
- ... may be summed up as follows:
The complainant takes issue with the fact that her remuneration is
lower than that received by a colleague in a lower grade.
The members of the operational staff of the Central Flow
Management Unit (CFMU) are divided into two groups: E1 comprising
staff ensuring the continuous operation of the CFMU and E2 comprising
operational support staff. As of 1 July 2008, following the entry into
force of a wide-ranging administrative reform at Eurocontrol, the details
of which are to be found in Judgment 3189, a multiplication factor equal
to the ratio between the basic salary paid on 30 June 2008 and that
shown in the new salary scale resulting from the reform was applied to
their remuneration. In most cases this factor was less than 1. Progress
Judgment No. 3492
2
towards a multiplication factor of 1 was to be achieved through
promotion and seniority progression, and officials were integrated in ...
- ... constitutes the impugned decision, that the Director General had
dismissed her internal complaint in accordance with the opinion of the
latter two members of the Joint Committee for Disputes.
On 3 September 2012 the complainant filed a complaint with the
Tribunal in which she asks it to set aside the impugned decision and
all her payslips as from August 2011, and to award her costs in the
amount of 5,000 euros.
Judgment No. 3492
3
Eurocontrol asks the Tribunal to dismiss all of the complainant's
claims as unfounded.
CONSIDERATIONS
1.
The purpose of the new grade and step structure and new
salary scale which entered into force at Eurocontrol on 1 July 2008 was
to modernise human resources management and, in particular, to place
greater emphasis on staff members' performance. That being the aim
of the reform, the latter was not intended to have an adverse impact on
the situation of either operational ...
- ... 2012 the complainant filed a complaint with the
Tribunal in which she asks it to set aside the impugned decision and
all her payslips as from August 2011, and to award her costs in the
amount of 5,000 euros.
Judgment No. 3492
3
Eurocontrol asks the Tribunal to dismiss all of the complainant's
claims as unfounded.
CONSIDERATIONS
1.
The purpose of the new grade and step structure and new
salary scale which entered into force at Eurocontrol on 1 July 2008 was
to modernise human resources management and, in particular, to place
greater emphasis on staff members' performance. That being the aim
of the reform, the latter was not intended to have an adverse impact on
the situation of either operational or non-operational staff. In other
words, the new classification of functions was to give all officials who
had joined Eurocontrol before 1 July 2008 a grade offering remuneration
and scope for increases equivalent ...
- ... grade and step structure and new
salary scale which entered into force at Eurocontrol on 1 July 2008 was
to modernise human resources management and, in particular, to place
greater emphasis on staff members' performance. That being the aim
of the reform, the latter was not intended to have an adverse impact on
the situation of either operational or non-operational staff. In other
words, the new classification of functions was to give all officials who
had joined Eurocontrol before 1 July 2008 a grade offering remuneration
and scope for increases equivalent to those offered by the grade which
they had held under the previous classification.
2.
That result was to be achieved by means of a multiplication
factor equal to the ratio between the basic salary paid before that date
and that shown in the new salary scale.
As the multiplication factor is generally lower than 1, progress
towards this figure is now made through promotion and seniority ...
- ... of her function in the new grade structure in due time.
However, she submits that the multiplication factor applied to her
basic salary after the conversion of her grade has led to an unjustified
inequality of treatment, since a colleague who, like her, is in the E1 group
and in the same professional situation as she, receives a salary higher
than hers. From this she infers that Article 7 of Part 2 of Annex XIII to
the Staff Regulations governing officials of the Eurocontrol Agency,
which sets out the method for calculating this factor, is unlawful in
that it has given rise to discrimination against her. The complainant
also alleges a breach of Article 66 of the Staff Regulations and of
Annex III to these Staff Regulations, which establishes the salary scale
applicable to all Eurocontrol officials, although she does not state any
particular reasons for this.
6.
Eurocontrol submits several documents in support of its
argument that, ...
- ... receives a salary higher
than hers. From this she infers that Article 7 of Part 2 of Annex XIII to
the Staff Regulations governing officials of the Eurocontrol Agency,
which sets out the method for calculating this factor, is unlawful in
that it has given rise to discrimination against her. The complainant
also alleges a breach of Article 66 of the Staff Regulations and of
Annex III to these Staff Regulations, which establishes the salary scale
applicable to all Eurocontrol officials, although she does not state any
particular reasons for this.
6.
Eurocontrol submits several documents in support of its
argument that, when the reform entered into force, the complainant's
salary was already less than that of her colleague, notwithstanding his
lower grade. According to Eurocontrol, this disparity stemmed from
each person's seniority in grade and their respective career paths. The
reform in no way altered the previous relationship existing ...
- ... to
the Staff Regulations governing officials of the Eurocontrol Agency,
which sets out the method for calculating this factor, is unlawful in
that it has given rise to discrimination against her. The complainant
also alleges a breach of Article 66 of the Staff Regulations and of
Annex III to these Staff Regulations, which establishes the salary scale
applicable to all Eurocontrol officials, although she does not state any
particular reasons for this.
6.
Eurocontrol submits several documents in support of its
argument that, when the reform entered into force, the complainant's
salary was already less than that of her colleague, notwithstanding his
lower grade. According to Eurocontrol, this disparity stemmed from
each person's seniority in grade and their respective career paths. The
reform in no way altered the previous relationship existing between
the complainant's salary and that of her colleague. As for their
expectations, they ...
- ... alleges a breach of Article 66 of the Staff Regulations and of
Annex III to these Staff Regulations, which establishes the salary scale
applicable to all Eurocontrol officials, although she does not state any
particular reasons for this.
6.
Eurocontrol submits several documents in support of its
argument that, when the reform entered into force, the complainant's
salary was already less than that of her colleague, notwithstanding his
lower grade. According to Eurocontrol, this disparity stemmed from
each person's seniority in grade and their respective career paths. The
reform in no way altered the previous relationship existing between
the complainant's salary and that of her colleague. As for their
expectations, they are now consistent with the system of promotion
introduced by the reform.
Judgment No. 3492
5
7.
The complainant argues that the discrimination of which she
complains is no less real ...
- ... promotion
introduced by the reform.
Judgment No. 3492
5
7.
The complainant argues that the discrimination of which she
complains is no less real on account of these factors. She too obtained
a "competition bonus" similar to that which influenced her colleague's
salary. Although she joined the Organisation later, she is more senior
in her grade and her career path is at least equivalent to that of her
colleague. The effect of what Eurocontrol alleges will be more rapid
promotion is only relative when seen in the context of the time it will
take until she reaches a multiplication factor of 1, i.e. on 1 June 2020,
whereas her colleague has benefited from it since 1 July 2010.
8.
The Tribunal finds that these submissions are more akin to
a challenge of the complainant's salary status in relation to her position
in the Organisation than a criticism of Article 7 of Part 2 of Annex
XIII to the Staff Regulations ...
- Judgment 3407
119th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the implied decision to reject his claim against the new calculation of his pension rights.
- ...
Organisation internationale du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
119th Session Judgment No. 3407
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr G. D. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 7 December 2012, Eurocontrol's reply of 15 March 2013, the
complainant's rejoinder of 19 June and Eurocontrol's surrejoinder of
20 September 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
On 1 January 1991 ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
119th Session Judgment No. 3407
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr G. D. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 7 December 2012, Eurocontrol's reply of 15 March 2013, the
complainant's rejoinder of 19 June and Eurocontrol's surrejoinder of
20 September 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
On 1 January 1991 new provisions concerning the transfer ...
- ...
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
119th Session Judgment No. 3407
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr G. D. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 7 December 2012, Eurocontrol's reply of 15 March 2013, the
complainant's rejoinder of 19 June and Eurocontrol's surrejoinder of
20 September 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
On 1 January 1991 new provisions concerning the transfer of
pension rights acquired under a national scheme to the Organisation's
pension ...
- ...
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
On 1 January 1991 new provisions concerning the transfer of
pension rights acquired under a national scheme to the Organisation's
pension scheme entered into force at Eurocontrol. Office Notice
No. 11/91 of 27 June 1991, which published these provisions,
specified that if the regulations or the contract to which officials had
been subject in their previous post did not allow them to make such a
transfer at that juncture — which was the position of those who had
acquired pension rights in Belgium — they could either wait until
transfer became possible, or submit an application as a safeguard. At
that point in time, where a transfer was possible, ...
- ... the number of
pensionable years to be credited was calculated by reference to the
person's basic salary at the date when he or she became established.
Judgment No. 3407
2
As from 2005, however, the operative date was that of the transfer
application. The complainant submitted a transfer application as a
safeguard on 31 May 2007.
The royal decree authorising the transfer of pension rights
acquired with a Belgian pension scheme to the Eurocontrol pension
scheme entered into force on 1 June 2007. It stipulated inter alia that
officials who had become established before that date — which was the
complainant's situation — should send their transfer application to the
Office national des pensions "no later than the last day of the sixth
month following that of the aforementioned date". On 4 June,
Eurocontrol staff were informed that applications submitted before
1 June 2007 would be regarded as premature. The complainant ...
- ... royal decree authorising the transfer of pension rights
acquired with a Belgian pension scheme to the Eurocontrol pension
scheme entered into force on 1 June 2007. It stipulated inter alia that
officials who had become established before that date — which was the
complainant's situation — should send their transfer application to the
Office national des pensions "no later than the last day of the sixth
month following that of the aforementioned date". On 4 June,
Eurocontrol staff were informed that applications submitted before
1 June 2007 would be regarded as premature. The complainant
submitted a new transfer application on 20 June 2007.
An amount corresponding to the actuarial equivalent of the
retirement pension acquired by the complainant in Belgium was
transferred to Eurocontrol on 22 January 2008, and on 6 February he
was advised that, as a result of the transfer, he had been credited with
an additional ten years, seven months and ...
- ... application to the
Office national des pensions "no later than the last day of the sixth
month following that of the aforementioned date". On 4 June,
Eurocontrol staff were informed that applications submitted before
1 June 2007 would be regarded as premature. The complainant
submitted a new transfer application on 20 June 2007.
An amount corresponding to the actuarial equivalent of the
retirement pension acquired by the complainant in Belgium was
transferred to Eurocontrol on 22 January 2008, and on 6 February he
was advised that, as a result of the transfer, he had been credited with
an additional ten years, seven months and eight days of reckonable
service, determined on the basis of the new method of calculating
pensionable years. On 30 April 2008 the complainant lodged an
internal complaint. Like many of his colleagues, he challenged the
dismissal of his internal complaint before the Tribunal. Although
in Judgment 3034, which was ...
- ... lodged an
internal complaint. Like many of his colleagues, he challenged the
dismissal of his internal complaint before the Tribunal. Although
in Judgment 3034, which was delivered on 6 July 2011 on these
challenges, the Tribunal found that the pensionable years credited to
the complainants had been correctly determined by reference to their
basic salary at the date of the transfer application, it set aside the
impugned decisions and referred the cases back to Eurocontrol,
because it considered that it was their initial application which should
have been taken into account. On 20 July 2011 the Director General
published Office Notice No. 20/11 informing the staff that it would no
longer be possible to submit applications as a safeguard, but that those
submitted between 27 June 1991 and the day after the publication of
the said notice and duly sent to the relevant Eurocontrol services
would nonetheless be considered admissible.
Judgment ...
- ... aside the
impugned decisions and referred the cases back to Eurocontrol,
because it considered that it was their initial application which should
have been taken into account. On 20 July 2011 the Director General
published Office Notice No. 20/11 informing the staff that it would no
longer be possible to submit applications as a safeguard, but that those
submitted between 27 June 1991 and the day after the publication of
the said notice and duly sent to the relevant Eurocontrol services
would nonetheless be considered admissible.
Judgment No. 3407
3
On 2 August 2011, in pursuance of Judgment 3034, the
Administration sent the complainant a new calculation of the additional
years of reckonable service credited to him, which was based on his
transfer application of 31 May 2007. This calculation proved to be less
favourable that the original computation. On 10 October 2011 the
complainant sent the Director General a ...
- ... 13 March 1995 and countersigned by his
supervisor at that time — a copy of which he had filed with the Pension
Service on 6 October. Having received no reply, he lodged an internal
complaint on 10 May 2012. On 7 December 2012, as he considered
that his internal complaint had been rejected by an implied decision,
he filed a complaint with the Tribunal.
B.
The complainant submits that by ignoring his request of 13 March
1995 — of which he produces a copy — Eurocontrol not only failed to
execute Judgment 3034 correctly, but also breached the provisions of
Office Notice No. 20/11 and those of Article 12 of Annex IV to the
Staff Regulations governing officials of the Eurocontrol Agency,
which enables an official to have paid to the Organisation the updated
capital value of pension rights acquired by virtue of activities
exercised before recruitment to Eurocontrol. He also taxes the
Organisation with not treating him in the same manner ...
- ... On 7 December 2012, as he considered
that his internal complaint had been rejected by an implied decision,
he filed a complaint with the Tribunal.
B.
The complainant submits that by ignoring his request of 13 March
1995 — of which he produces a copy — Eurocontrol not only failed to
execute Judgment 3034 correctly, but also breached the provisions of
Office Notice No. 20/11 and those of Article 12 of Annex IV to the
Staff Regulations governing officials of the Eurocontrol Agency,
which enables an official to have paid to the Organisation the updated
capital value of pension rights acquired by virtue of activities
exercised before recruitment to Eurocontrol. He also taxes the
Organisation with not treating him in the same manner as other
officials whose files it had to review in pursuance of Judgment 3034
and with breaching its duty to provide reasons, because it has not
replied to either his request of 10 October 2011 or his internal
complaint. ...
- ... ignoring his request of 13 March
1995 — of which he produces a copy — Eurocontrol not only failed to
execute Judgment 3034 correctly, but also breached the provisions of
Office Notice No. 20/11 and those of Article 12 of Annex IV to the
Staff Regulations governing officials of the Eurocontrol Agency,
which enables an official to have paid to the Organisation the updated
capital value of pension rights acquired by virtue of activities
exercised before recruitment to Eurocontrol. He also taxes the
Organisation with not treating him in the same manner as other
officials whose files it had to review in pursuance of Judgment 3034
and with breaching its duty to provide reasons, because it has not
replied to either his request of 10 October 2011 or his internal
complaint.
The complainant asks the Tribunal to set aside the implied
decisions rejecting his request of 10 October 2011 and his internal
complaint, to find that the years of pensionable ...
- ... because it has not
replied to either his request of 10 October 2011 or his internal
complaint.
The complainant asks the Tribunal to set aside the implied
decisions rejecting his request of 10 October 2011 and his internal
complaint, to find that the years of pensionable service to be credited
to him must be calculated by reference, inter alia, to his basic salary
on 13 March 1995 and to award him costs in the amount of 5,000
euros.
C.
In its reply Eurocontrol indicates that it never received the
transfer application of 13 March 1995. It asserts that the application
Judgment No. 3407
4
should not have been submitted via the complainant's supervisor and
that the complainant perhaps retrieved it after submitting it to him. It
emphasises that during the proceedings which led to Judgment 3034,
to which the complainant was a party, he never mentioned that
application, but another sent by e-mail on 24 September ...
- ... judgment that only one intervener was allowed to provide
evidence at a later date that he had indeed submitted a transfer
application as a safeguard. In its view, the complainant is seeking to
have his file reopened by circumventing the res judicata authority of
the above-mentioned judgment. As the complainant has not proved
that he did in fact submit an application as a safeguard in 1995, there
has been no breach of Article 12 of Annex IV to the Staff Regulations.
Eurocontrol adds that, since Office Notice No. 20/11 states that
applications for the transfer of pension rights submitted as a safeguard
would be carried out "when the transfer becomes possible", it does not
apply to the complainant.
Lastly, the Organisation maintains that it did not treat the
complainant in a different manner to the other complainants in the
cases leading to Judgment 3034 and it emphasises that, after the
Committee for Disputes had issued its opinion, it sent him ...
- ...
Lastly, the Organisation maintains that it did not treat the
complainant in a different manner to the other complainants in the
cases leading to Judgment 3034 and it emphasises that, after the
Committee for Disputes had issued its opinion, it sent him a reasoned
response to his internal complaint in a letter of 20 December 2012.
D.
In his rejoinder the complainant submits that, since his
application of 13 March 1995 had been countersigned by his superior,
Eurocontrol may not assert that it did not receive it. In his opinion,
it is "very probable" that the application was mislaid when the
Organisation moved its Headquarters around that time. There was
nothing to prevent him from submitting his application via his
supervisor, and according to the case law, if the Organisation thought
that he had turned to the wrong body, it should have forwarded the
application to the competent body. He contends that in the
proceedings which led to ...
- ... not have to mention
Judgment No. 3407
5
all the applications which he had submitted as a safeguard, because at
that juncture he was asking to have the pensionable years to be credited
to him calculated by reference to his basic salary on the date when he
became established.
The complainant asks the Tribunal to set aside the decision of
20 December 2012 dismissing his internal complaint, if appropriate.
E.
In its surrejoinder Eurocontrol submits that the case law on which
the complainant relies applies to internal appeals. It adds that in
consideration 42 of Judgment 3034 the Tribunal found that in instances
where the complainants had failed to substantiate their allegation that
they had applied for the transfer of pension rights, the existence of those
applications could not be regarded as established.
CONSIDERATIONS
1.
Under Article 12 of Annex IV to the Staff Regulations, an
official who ...
- ... on which
the complainant relies applies to internal appeals. It adds that in
consideration 42 of Judgment 3034 the Tribunal found that in instances
where the complainants had failed to substantiate their allegation that
they had applied for the transfer of pension rights, the existence of those
applications could not be regarded as established.
CONSIDERATIONS
1.
Under Article 12 of Annex IV to the Staff Regulations, an
official who enters the service of Eurocontrol is entitled to have paid
to the Organisation the updated capital value of the pension rights
acquired by him by virtue of his previous activities "if the regulations
or the contract to which he was subject in his previous post so allow".
Rule of Application No. 28 sets out the arrangements for
implementing this article and, in particular, the rules for determining
the number of pensionable years to be credited in the Eurocontrol
scheme in respect of the pension rights ...
- ... an
official who enters the service of Eurocontrol is entitled to have paid
to the Organisation the updated capital value of the pension rights
acquired by him by virtue of his previous activities "if the regulations
or the contract to which he was subject in his previous post so allow".
Rule of Application No. 28 sets out the arrangements for
implementing this article and, in particular, the rules for determining
the number of pensionable years to be credited in the Eurocontrol
scheme in respect of the pension rights transferred from another scheme.
2.
The original version of these texts stipulated that pension
rights had to be transferred when the official became established.
Thus, an official could exercise his or her right to make such a transfer
only within six months of the date of establishment, and the
pensionable years credited to him or her were calculated by reference
to his/her basic salary at that date.
3.
According ...
- ... six months of the date of establishment, and the
pensionable years credited to him or her were calculated by reference
to his/her basic salary at that date.
3.
According to the above-mentioned terms of Article 12 of
Annex IV to the Staff Regulations, the possibility of effecting such a
Judgment No. 3407
6
transfer from a national pension scheme was subject to the existence
of provisions authorising this transfer in the national law of Eurocontrol
Member States. However, the adoption of laws and regulations to this
effect has taken place so gradually that, to date, some States have still
not passed such legislation.
4.
In Belgium, the host country of Eurocontrol's Headquarters,
the negotiations preceding the adoption of national legislation permitting
the transfer of pension rights proved to be long and arduous. In the end
it was not until 1 June 2007 that such transfers became possible by
virtue of ...
- ... IV to the Staff Regulations, the possibility of effecting such a
Judgment No. 3407
6
transfer from a national pension scheme was subject to the existence
of provisions authorising this transfer in the national law of Eurocontrol
Member States. However, the adoption of laws and regulations to this
effect has taken place so gradually that, to date, some States have still
not passed such legislation.
4.
In Belgium, the host country of Eurocontrol's Headquarters,
the negotiations preceding the adoption of national legislation permitting
the transfer of pension rights proved to be long and arduous. In the end
it was not until 1 June 2007 that such transfers became possible by
virtue of the entry into force of a royal decree of 25 April 2007 which,
as from 1 June 2007, brought Eurocontrol within the scope of a
Belgian law of 10 February 2003 which had already authorised this
kind of transfer for officials of the ...
- ... so gradually that, to date, some States have still
not passed such legislation.
4.
In Belgium, the host country of Eurocontrol's Headquarters,
the negotiations preceding the adoption of national legislation permitting
the transfer of pension rights proved to be long and arduous. In the end
it was not until 1 June 2007 that such transfers became possible by
virtue of the entry into force of a royal decree of 25 April 2007 which,
as from 1 June 2007, brought Eurocontrol within the scope of a
Belgian law of 10 February 2003 which had already authorised this
kind of transfer for officials of the European Communities.
5.
However, during the above-mentioned negotiations, two
series of events of particular relevance to this dispute had taken place,
which are worth recalling.
(a)
On 17 June 1991 the Permanent Commission of Eurocontrol,
acting out of consideration for officials who had not submitted their
application for the ...
- ... entry into force of a royal decree of 25 April 2007 which,
as from 1 June 2007, brought Eurocontrol within the scope of a
Belgian law of 10 February 2003 which had already authorised this
kind of transfer for officials of the European Communities.
5.
However, during the above-mentioned negotiations, two
series of events of particular relevance to this dispute had taken place,
which are worth recalling.
(a)
On 17 June 1991 the Permanent Commission of Eurocontrol,
acting out of consideration for officials who had not submitted their
application for the transfer of pension rights within six months of
becoming established or, above all, who had been unable to do so
because such transfers had not yet been authorised by the legislation
of their country of origin, adopted "[e]xceptional temporary provisions
having the force of service regulations" to exempt the persons concerned
from the time bar. These provisions, which were subsequently ...
- ... possibility of submitting such an
application as a safeguard was likely to be of particular interest to
officials who had acquired rights under Belgian pension schemes.
Pursuant to the above-mentioned office notice, a number of these
officials therefore submitted an initial transfer application in the years
following the publication of this notice.
(b)
As stated above, on 1 June 2007 before that transfer actually
became possible, the Permanent Commission of Eurocontrol had,
however, adopted a radical reform of the Organisation's pension
scheme that became effective as of 1 July 2005. The numerous
measures forming part of this reform, which was aimed at restoring
the scheme's financial viability, included an amendment of the above-
mentioned Article 12 of Annex IV to the Staff Regulations.
Under the new version of this Article 12, the number of
pensionable years credited to an official who transferred his pension
rights acquired with ...
- ... that the pensionable years in dispute had been correctly
determined by reference to the basic salary received by the persons
concerned at the date of their transfer applications and not at the date
at which they became established. However, the Tribunal also decided
that, in the case of officials who had initially submitted transfer
applications as a safeguard pursuant to the above-mentioned office
notice of 27 June 1991, it was that initial application and not, as
Eurocontrol had thought, the application which they had lodged after
1 June 2007, which should be taken into account for that purpose.
The decisions in question were therefore set aside for that reason and
the cases of the officials concerned were referred back to Eurocontrol
in order that it should determine the pensionable years to which they
were entitled on that different basis.
9.
On 2 August 2011, in the wake of the delivery of that
judgment, which embodied the same ...
- ...
that, in the case of officials who had initially submitted transfer
applications as a safeguard pursuant to the above-mentioned office
notice of 27 June 1991, it was that initial application and not, as
Eurocontrol had thought, the application which they had lodged after
1 June 2007, which should be taken into account for that purpose.
The decisions in question were therefore set aside for that reason and
the cases of the officials concerned were referred back to Eurocontrol
in order that it should determine the pensionable years to which they
were entitled on that different basis.
9.
On 2 August 2011, in the wake of the delivery of that
judgment, which embodied the same approach as that already taken
by the Tribunal in Judgments 2985 and 2986, the Organisation sent
the complainant a new calculation of the pensionable years credited to
him, based this time on his application of 31 May 2007.
Judgment No. 3407
9 ...
- ... days from the notification of the claim to it". When an
organisation forwards a claim before the expiry of the prescribed
period of sixty days to the competent advisory appeal body, this step
itself constitutes "a decision upon [the] claim" within the meaning of
these provisions, which forestalls an implied rejection which could
be referred to the Tribunal (see, on these points, Judgments 532, 762,
786, 2681 or 3034). As it is not disputed in the instant case that
Eurocontrol had forwarded the complainant's internal complaint to the
Joint Committee for Disputes within that period, there had been no
implied decision rejecting that internal complaint.
However, as the complainant took care in his rejoinder to impugn,
"if appropriate", the aforementioned express decision of 20 December
2012 which had been taken in the meantime, the complaint must be
deemed to be directed against that decision (see, for a similar precedent,
Judgment 3356, under ...
- ... internal complaint to the
Joint Committee for Disputes within that period, there had been no
implied decision rejecting that internal complaint.
However, as the complainant took care in his rejoinder to impugn,
"if appropriate", the aforementioned express decision of 20 December
2012 which had been taken in the meantime, the complaint must be
deemed to be directed against that decision (see, for a similar precedent,
Judgment 3356, under 15 and 16).
13.
Eurocontrol first seeks to show that the Director General's
rejection of the complainant's internal complaint was justified, by
arguing that the res judicata authority of Judgment 3034 prevents the
complainant from relying on an application which he had not
mentioned in the proceedings culminating in that judgment.
The Organisation is mistaken as to the exact scope of that judgment.
Under point 2 of the decision in Judgment 3034 and consideration 41,
to which point 2 referred indirectly, ...
- ... as a safeguard, in pursuance of that
office notice, were referred back to the Organisation in order that the
pensionable years to be credited to them should be determined
in accordance with the conditions pertaining to that application.
Consideration 41 also made it clear that if several applications had
been submitted by the same official before 1 June 2007, the operative
date was, of course, that of the first application.
It was therefore incumbent upon Eurocontrol to recalculate the
disputed pensionable years by taking into consideration the earliest
Judgment No. 3407
11
application submitted by each of the complainants, and the fact that
this application might not have been specifically mentioned in the
proceedings leading to Judgment 3034 did not prevent the official in
question relying on it when his or her situation was reviewed.
14.
Eurocontrol points out that, in consideration 42 of that
judgment, ...
- ...
It was therefore incumbent upon Eurocontrol to recalculate the
disputed pensionable years by taking into consideration the earliest
Judgment No. 3407
11
application submitted by each of the complainants, and the fact that
this application might not have been specifically mentioned in the
proceedings leading to Judgment 3034 did not prevent the official in
question relying on it when his or her situation was reviewed.
14.
Eurocontrol points out that, in consideration 42 of that
judgment, the Tribunal ruled on the issue of whether various applications
on which some of the complainants relied had actually been made and
held that the existence of those applications had not been established.
However, not only did the Tribunal take care to state that this finding
was based on the "available evidence", which did not prevent the
persons in question from subsequently producing new evidence to
prove the existence ...
- ... infer from the statement in
consideration 44 of the aforementioned judgment that it must check
whether the applications on which one of the interveners relied had
really been filed, that it did not need to carry out such checks in the
cases of other officials — quite on the contrary.
More generally, the fact that in Judgment 3034 the Tribunal had
occasion to rule on submissions disputing the existence of applications
filed as a safeguard was certainly no reason for Eurocontrol to refuse
to consider such an application solely on the grounds that it had not
been mentioned during the initial proceedings. Indeed, the Tribunal
cannot be deemed to have ruled in advance on matters which, by
definition, had
not
been
submitted for its consideration.
15.
Eurocontrol develops a second, completely different, line of
argument in which it vigorously disputes the actual filing of the
application dated 13 March 1995, thus calling into question ...
- ... fact that in Judgment 3034 the Tribunal had
occasion to rule on submissions disputing the existence of applications
filed as a safeguard was certainly no reason for Eurocontrol to refuse
to consider such an application solely on the grounds that it had not
been mentioned during the initial proceedings. Indeed, the Tribunal
cannot be deemed to have ruled in advance on matters which, by
definition, had
not
been
submitted for its consideration.
15.
Eurocontrol develops a second, completely different, line of
argument in which it vigorously disputes the actual filing of the
application dated 13 March 1995, thus calling into question the very
truth of the statement on which the complainant bases his claims.
As is well established in the case law, bad faith cannot be
presumed and must therefore be proven by the submissions (see, for
example, Judgments 2282, under 6, 2293, under 11, or 2800, under 21).
Judgment No. 3407 ...
- ... could find
no trace of the application in question in its services, the Organisation
in no way proves the substance of the inference which it seeks to
draw, especially as the complainant does offer some prima facie
evidence in support of his submissions, in that he produces a copy of
the application of 13 March 1995, countersigned by a supervisor,
which tends to corroborate not only the existence of this document but
also the fact that it was
actually filed with Eurocontrol.
16.
It is disconcerting that, as the defendant observes, the
complainant made no mention of this application in his submissions
during the proceedings leading to Judgment 3034, whereas he mentioned
not only that of 31 May 2007 but also an e-mail of 24 September 2002
in response to an enquiry from the Directorate of Human Resources,
which the Tribunal refused to regard as a valid transfer application.
However, the complainant aptly replies to that argument by pointing ...
- ...
which made it unnecessary to list all his previous applications.
17.
If the Organisation wished to dispute the authenticity of the
document produced by the complainant, as recommended by the
member of the Joint Committee for Disputes who expressed the
minority opinion referred to earlier, it should have investigated
the matter more thoroughly, or obtained an expert opinion, which as
the file shows, it failed to do.
18.
The Tribunal finds that Eurocontrol's supposition that the
complainant might have retrieved his application after having it
countersigned by his supervisor and might ultimately have forgotten
Judgment No. 3407
13
to file it, seems highly improbable. At all events, it is equally
conceivable that Eurocontrol's services might have mislaid this
application, especially since, as the complainant points out, this
document was submitted around the time of a move. Moreover, the
Tribunal ...
- ... it should have investigated
the matter more thoroughly, or obtained an expert opinion, which as
the file shows, it failed to do.
18.
The Tribunal finds that Eurocontrol's supposition that the
complainant might have retrieved his application after having it
countersigned by his supervisor and might ultimately have forgotten
Judgment No. 3407
13
to file it, seems highly improbable. At all events, it is equally
conceivable that Eurocontrol's services might have mislaid this
application, especially since, as the complainant points out, this
document was submitted around the time of a move. Moreover, the
Tribunal is somewhat surprised by the statement in the defendant's
surrejoinder that such an incident would "not be possible".
19.
Lastly, the Organisation submits that, in any case, it was not
obliged to take account of the application in question because in its
opinion
the complainant mistakenly ...
- ... 1 of the notice unfortunately omitted
the reference to the division in question and that the complainant's
application of 31 May 2007 had also been forwarded via his supervisor
without the Organisation raising any objection to this.
Judgment No. 3407
14
20.
The Tribunal must therefore find that, by refusing, without
any valid reason, to take account of the application of 13 March 1995,
on which the complainant relies, in the instant case Eurocontrol
incorrectly applied Article 12 of Annex IV to the Staff Regulations
and breached the duties
imposed on it by Judgment 3034.
21.
It follows from the foregoing, without there being any need
to consider the complainant's other pleas, that the Director General's
decision of 20 December 2012 and the earlier decision rejecting
the request for a review of the pensionable years disputed by the
complainant must be set aside.
22.
The case shall again be referred ...
- ... applied Article 12 of Annex IV to the Staff Regulations
and breached the duties
imposed on it by Judgment 3034.
21.
It follows from the foregoing, without there being any need
to consider the complainant's other pleas, that the Director General's
decision of 20 December 2012 and the earlier decision rejecting
the request for a review of the pensionable years disputed by the
complainant must be set aside.
22.
The case shall again be referred back to Eurocontrol in order
that, as the complainant rightly requests, the pensionable years to be
credited to him may be determined by reference to his basic salary, his
age and the exchange rate in force on the date of his initial application
to have his pension rights transferred, i.e. 13 March 1995.
23.
The complainant, who succeeds in full, is entitled to costs,
the amount of which the Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The implied ...
- ... requests, the pensionable years to be
credited to him may be determined by reference to his basic salary, his
age and the exchange rate in force on the date of his initial application
to have his pension rights transferred, i.e. 13 March 1995.
23.
The complainant, who succeeds in full, is entitled to costs,
the amount of which the Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The implied decision of the Director General of Eurocontrol
rejecting the request for a review of the pensionable years
credited to the complainant and disputed by him, and the decision
of 20 December 2012 rejecting his internal complaint, are set
aside.
2.
The case is remitted to Eurocontrol in order that the pensionable
years in question be determined as indicated in consideration 22,
above.
3.
Eurocontrol shall pay the complainant costs in the amount of
3,000 euros.
Judgment No. 3407
15 ...
- ...
23.
The complainant, who succeeds in full, is entitled to costs,
the amount of which the Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The implied decision of the Director General of Eurocontrol
rejecting the request for a review of the pensionable years
credited to the complainant and disputed by him, and the decision
of 20 December 2012 rejecting his internal complaint, are set
aside.
2.
The case is remitted to Eurocontrol in order that the pensionable
years in question be determined as indicated in consideration 22,
above.
3.
Eurocontrol shall pay the complainant costs in the amount of
3,000 euros.
Judgment No. 3407
15
In witness of this judgment, adopted on 6 November 2014,
Mr Claude Rouiller, Vice-President of the Tribunal, Mr Seydou Ba,
Judge, and Mr Patrick Frydman, Judge, sign below, as do I, Dražen
Petrovic, Registrar.
Delivered in public ...
- ...
For the above reasons,
1.
The implied decision of the Director General of Eurocontrol
rejecting the request for a review of the pensionable years
credited to the complainant and disputed by him, and the decision
of 20 December 2012 rejecting his internal complaint, are set
aside.
2.
The case is remitted to Eurocontrol in order that the pensionable
years in question be determined as indicated in consideration 22,
above.
3.
Eurocontrol shall pay the complainant costs in the amount of
3,000 euros.
Judgment No. 3407
15
In witness of this judgment, adopted on 6 November 2014,
Mr Claude Rouiller, Vice-President of the Tribunal, Mr Seydou Ba,
Judge, and Mr Patrick Frydman, Judge, sign below, as do I, Dražen
Petrovic, Registrar.
Delivered in public in Geneva on 11 February 2015.
(Signed)
C
LAUDE
R
OUILLER
S
EYDOU
B
A
P
ATRICK
F
RYDMAN
D
RAŽEN ...
- Judgment 3406
119th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal dismissed the complaint (relating to dependant child allowance) for failure to exhaust internal means of redress.
- ... Eurocontrol) on 19
October 2012, Eurocontrol's reply of 25 January 2013, the
complainant's rejoinder of 2 May 2013 and Eurocontrol's surrejoinder
of 9 August 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
The complainant ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
119th Session Judgment No. 3406
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms H. C. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 19
October 2012, Eurocontrol's reply of 25 January 2013, the
complainant's rejoinder of 2 May 2013 and Eurocontrol's surrejoinder
of 9 August 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
The complainant entered the service of Eurocontrol on ...
- ...
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
119th Session Judgment No. 3406
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms H. C. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 19
October 2012, Eurocontrol's reply of 25 January 2013, the
complainant's rejoinder of 2 May 2013 and Eurocontrol's surrejoinder
of 9 August 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
The complainant entered the service of Eurocontrol on 1 September
2005. She is married and has three children. Her husband, who works
for ...
- ... Eurocontrol's reply of 25 January 2013, the
complainant's rejoinder of 2 May 2013 and Eurocontrol's surrejoinder
of 9 August 2013;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A.
The complainant entered the service of Eurocontrol on 1 September
2005. She is married and has three children. Her husband, who works
for the European Commission, receives from the latter the dependent
child allowance for which provision is made in the Staff Regulations
of Officials of the European Communities.
The complainant was reminded by an internal memorandum of
15 December 2011 that when a spouse of a Eurocontrol official works
for another international organisation, "the organisation employing the
official ...
- ... the pleadings may be
summed up as follows:
A.
The complainant entered the service of Eurocontrol on 1 September
2005. She is married and has three children. Her husband, who works
for the European Commission, receives from the latter the dependent
child allowance for which provision is made in the Staff Regulations
of Officials of the European Communities.
The complainant was reminded by an internal memorandum of
15 December 2011 that when a spouse of a Eurocontrol official works
for another international organisation, "the organisation employing the
official who holds the higher grade pays the allowances" for dependent
children, but that the corresponding "tax deduction" applies to both
officials. She was advised that, following an analysis of her file, her
situation had to be amended with regard to that "tax deduction" and
Judgment No. 3406
2
that her new situation would be reflected in her payslip as from ...
- ... to be amended with regard to that "tax deduction" and
Judgment No. 3406
2
that her new situation would be reflected in her payslip as from
1 January 2012.
On 5 January 2012 the complainant, believing that an
"administrative error" had led to her dependent children not being
taken into consideration when the internal tax to which she was
subject had been calculated, asked to have that error corrected as from
the date on which she had joined Eurocontrol. On 27 February 2012,
the Head of the Regulations and Rules Unit replied that her request
could not be granted. He explained that the decision to grant "tax
relief in respect of their dependent child(ren)" to all officials who had
one or more dependent children and who did not receive family
allowances from Eurocontrol because their spouse who was working
for another international organisation was receiving such allowances,
was a "social security measure" and did not ...
- ... when the internal tax to which she was
subject had been calculated, asked to have that error corrected as from
the date on which she had joined Eurocontrol. On 27 February 2012,
the Head of the Regulations and Rules Unit replied that her request
could not be granted. He explained that the decision to grant "tax
relief in respect of their dependent child(ren)" to all officials who had
one or more dependent children and who did not receive family
allowances from Eurocontrol because their spouse who was working
for another international organisation was receiving such allowances,
was a "social security measure" and did not "reflect any legal
obligation stemming from provisions of the Staff Regulations/GCE or
Rules of Application in force at Eurocontrol".
On 23 May the complainant lodged an internal complaint against
the decision of 27 February 2012. On 19 October she filed a complaint
with the Tribunal, impugning the implied decision to reject ...
- ... that the decision to grant "tax
relief in respect of their dependent child(ren)" to all officials who had
one or more dependent children and who did not receive family
allowances from Eurocontrol because their spouse who was working
for another international organisation was receiving such allowances,
was a "social security measure" and did not "reflect any legal
obligation stemming from provisions of the Staff Regulations/GCE or
Rules of Application in force at Eurocontrol".
On 23 May the complainant lodged an internal complaint against
the decision of 27 February 2012. On 19 October she filed a complaint
with the Tribunal, impugning the implied decision to reject her
internal complaint.
On 22 November the Joint Committee for Disputes issued its
opinion. A majority of its members recommended that the internal
complaint should be allowed, but one member recommended that it
should be dismissed as irreceivable and unfounded. The complainant ...
- ... as irreceivable and unfounded. The complainant
was informed by an internal memorandum dated 18 December 2012
that her internal complaint had been dismissed. She was, however,
advised that "in order to put [her] on an equal footing" with other
officials who had previously lodged an internal complaint similar to
hers, the "correction" which she had requested would be made as of
1 December 2011 and not as of 1 January 2012.
B.
The complainant submits that Eurocontrol disregarded her family
situation, specifically her three dependent children, when it calculated
the internal tax to which she is subject, thereby breaching Articles 62
and 62a of the Staff Regulations governing officials of the Eurocontrol
Judgment No. 3406
3
Agency and Articles 2(2) a) and 3 of Rule of Application No. 27
concerning the method for calculating remuneration and internal tax.
In addition, she contends that as the family allowances ...
- ... other
officials who had previously lodged an internal complaint similar to
hers, the "correction" which she had requested would be made as of
1 December 2011 and not as of 1 January 2012.
B.
The complainant submits that Eurocontrol disregarded her family
situation, specifically her three dependent children, when it calculated
the internal tax to which she is subject, thereby breaching Articles 62
and 62a of the Staff Regulations governing officials of the Eurocontrol
Judgment No. 3406
3
Agency and Articles 2(2) a) and 3 of Rule of Application No. 27
concerning the method for calculating remuneration and internal tax.
In addition, she contends that as the family allowances received by her
husband did not appear on her own payslips, they could not be
deducted from the family allowances to which she was entitled, which,
in her view, is contrary to Article 67(2) of the Staff Regulations. She
endeavours to ...
- ... No. 3406
3
Agency and Articles 2(2) a) and 3 of Rule of Application No. 27
concerning the method for calculating remuneration and internal tax.
In addition, she contends that as the family allowances received by her
husband did not appear on her own payslips, they could not be
deducted from the family allowances to which she was entitled, which,
in her view, is contrary to Article 67(2) of the Staff Regulations. She
endeavours to show that Eurocontrol failed to respect "the equivalence
of the taxation of Agency officials and European officials" and thus
breached Articles 1 and 2(2) c) and d) of Rule of Application No. 27.
Moreover, she asserts that Eurocontrol breached the principle of equal
treatment since, according to her, all Eurocontrol officials in receipt
of family allowances were granted tax relief for dependent children
before 15 December 2011.
The complainant requests the setting aside of the implied decision ...
- ... allowances received by her
husband did not appear on her own payslips, they could not be
deducted from the family allowances to which she was entitled, which,
in her view, is contrary to Article 67(2) of the Staff Regulations. She
endeavours to show that Eurocontrol failed to respect "the equivalence
of the taxation of Agency officials and European officials" and thus
breached Articles 1 and 2(2) c) and d) of Rule of Application No. 27.
Moreover, she asserts that Eurocontrol breached the principle of equal
treatment since, according to her, all Eurocontrol officials in receipt
of family allowances were granted tax relief for dependent children
before 15 December 2011.
The complainant requests the setting aside of the implied decision
to reject her internal complaint of 23 May 2012 and of the express
decision of 27 February 2012.
She asks the Tribunal to order Eurocontrol
to correct her payslips as from 1 September 2005 and to order it ...
- ... not be
deducted from the family allowances to which she was entitled, which,
in her view, is contrary to Article 67(2) of the Staff Regulations. She
endeavours to show that Eurocontrol failed to respect "the equivalence
of the taxation of Agency officials and European officials" and thus
breached Articles 1 and 2(2) c) and d) of Rule of Application No. 27.
Moreover, she asserts that Eurocontrol breached the principle of equal
treatment since, according to her, all Eurocontrol officials in receipt
of family allowances were granted tax relief for dependent children
before 15 December 2011.
The complainant requests the setting aside of the implied decision
to reject her internal complaint of 23 May 2012 and of the express
decision of 27 February 2012.
She asks the Tribunal to order Eurocontrol
to correct her payslips as from 1 September 2005 and to order it to pay
her "the additional remuneration" — plus interest at 8 per cent per
annum ...
- ... d) of Rule of Application No. 27.
Moreover, she asserts that Eurocontrol breached the principle of equal
treatment since, according to her, all Eurocontrol officials in receipt
of family allowances were granted tax relief for dependent children
before 15 December 2011.
The complainant requests the setting aside of the implied decision
to reject her internal complaint of 23 May 2012 and of the express
decision of 27 February 2012.
She asks the Tribunal to order Eurocontrol
to correct her payslips as from 1 September 2005 and to order it to pay
her "the additional remuneration" — plus interest at 8 per cent per
annum — which she would have received if she had been granted tax
relief for dependent children as from that date. She claims costs in the
amount of 5,000 euros.
C.
In its reply Eurocontrol submits that the complaint is irreceivable.
It points out that, following her internal complaint of 23 May 2012,
the complainant was ...
- ... reject her internal complaint of 23 May 2012 and of the express
decision of 27 February 2012.
She asks the Tribunal to order Eurocontrol
to correct her payslips as from 1 September 2005 and to order it to pay
her "the additional remuneration" — plus interest at 8 per cent per
annum — which she would have received if she had been granted tax
relief for dependent children as from that date. She claims costs in the
amount of 5,000 euros.
C.
In its reply Eurocontrol submits that the complaint is irreceivable.
It points out that, following her internal complaint of 23 May 2012,
the complainant was granted tax relief for dependent children as from
1 December 2011, and it contends the fact that she did not receive
such tax relief before 1 December 2011 had "an effect which was
reflected" in each of the payslips which she received up until that date.
As the complainant did not challenge those payslips — which, according
to Judgment 1408, ...
- ... 2011 had "an effect which was
reflected" in each of the payslips which she received up until that date.
As the complainant did not challenge those payslips — which, according
to Judgment 1408, are decisions subject to appeal — within the three-
month time limit established by Article 92(2) of the Staff Regulations,
the Organisation submits that the complaint is time-barred and hence
irreceivable in respect of the period prior to 1 December 2011.
On the merits Eurocontrol states that, in accordance with Article 3(2)
of Annex V to the Staff Regulations, dependent child allowances are not
Judgment No. 3406
4
taken into account when calculating internal tax, and it explains that the
amounts taken into account in determining an official's remuneration are
not shown on payslips. The complainant's plea that Article 67(2) of
the Staff Regulations was breached is therefore incorrect. Furthermore
Eurocontrol endeavours to ...
- ... the merits Eurocontrol states that, in accordance with Article 3(2)
of Annex V to the Staff Regulations, dependent child allowances are not
Judgment No. 3406
4
taken into account when calculating internal tax, and it explains that the
amounts taken into account in determining an official's remuneration are
not shown on payslips. The complainant's plea that Article 67(2) of
the Staff Regulations was breached is therefore incorrect. Furthermore
Eurocontrol endeavours to show that the "principle of equality between
Eurocontrol and the European Communities as regards net pay" defined
in Rule of Application No. 27 was fully respected. Lastly, it denies that
it treated the complainant "unequally or in contradiction with its own
rules".
D.
In her rejoinder the complainant submits that her complaint is
receivable. She explains that it was only on receiving the internal
memorandum of 15 December 2011 that she learnt that ...
- ... Annex V to the Staff Regulations, dependent child allowances are not
Judgment No. 3406
4
taken into account when calculating internal tax, and it explains that the
amounts taken into account in determining an official's remuneration are
not shown on payslips. The complainant's plea that Article 67(2) of
the Staff Regulations was breached is therefore incorrect. Furthermore
Eurocontrol endeavours to show that the "principle of equality between
Eurocontrol and the European Communities as regards net pay" defined
in Rule of Application No. 27 was fully respected. Lastly, it denies that
it treated the complainant "unequally or in contradiction with its own
rules".
D.
In her rejoinder the complainant submits that her complaint is
receivable. She explains that it was only on receiving the internal
memorandum of 15 December 2011 that she learnt that she had not
previously been granted tax relief for dependent children. ...
- ... the internal
memorandum of 15 December 2011 that she learnt that she had not
previously been granted tax relief for dependent children. She says
that it was on the basis of this "new fact" that she lodged her internal
complaint of 23 May 2012 which was directed not against her payslips
for the period prior to 1 January 2012, but against the rejection decision
of 27 February 2012. She enlarges on her submissions regarding the
merits.
E.
In its surrejoinder Eurocontrol maintains its position. On the
merits, it states that the complainant was granted tax relief for
dependent children as a gesture of goodwill and that she may not ask
the Tribunal "to evaluate" this "discretionary choice". It also explains
that the complainant was not in the same situation in fact and in law as
certain colleagues who were receiving tax relief for dependent children
because, unlike the complainant, they received the dependent child
allowance.
CONSIDERATIONS ...
- ... granted tax relief for
dependent children as a gesture of goodwill and that she may not ask
the Tribunal "to evaluate" this "discretionary choice". It also explains
that the complainant was not in the same situation in fact and in law as
certain colleagues who were receiving tax relief for dependent children
because, unlike the complainant, they received the dependent child
allowance.
CONSIDERATIONS
1.
The tax relief for dependent children to which a Eurocontrol
official whose spouse is an official of another international organisation
may be entitled is discussed in Judgment 3405, also delivered this day.
Judgment No. 3406
5
2.
In the instant case the complainant, who entered the service
of Eurocontrol on 1 September 2005, is married to an official of the
European Union with whom she has three children. Her husband,
whose grade is higher than hers, therefore received the dependent child
allowance ...
- ... for dependent children
because, unlike the complainant, they received the dependent child
allowance.
CONSIDERATIONS
1.
The tax relief for dependent children to which a Eurocontrol
official whose spouse is an official of another international organisation
may be entitled is discussed in Judgment 3405, also delivered this day.
Judgment No. 3406
5
2.
In the instant case the complainant, who entered the service
of Eurocontrol on 1 September 2005, is married to an official of the
European Union with whom she has three children. Her husband,
whose grade is higher than hers, therefore received the dependent child
allowance from his employer, while in accordance with the applicable
Staff Regulations the complainant did not receive this allowance or
tax relief for dependent children.
3.
By an internal memorandum of 15 December 2011, the Head
of the People Management Division informed the ...
- ... her file had been updated accordingly and
that her new situation would be reflected in her payslip as from
1 January 2012.
4.
The complainant's payslip for January 2012 showed an
increase of some 300 euros due to the fact that her three dependent
children had been taken into consideration when calculating tax.
5.
On 5 January 2012 she requested the retroactive application
of tax relief for dependent children as from the date on which she had
joined Eurocontrol.
As this request was denied by a decision of 27 February 2012, on
23 May 2012 she lodged an internal complaint.
6.
The lack of any response to the internal complaint by 22 July
prompted the complainant to file a complaint under Article VII,
paragraph 3, of the Statute of the Tribunal on 19 October 2012 against
what she considered to be an implied rejection of her internal complaint.
7.
The complainant enters four pleas in support of her claims,
namely: ...
- ... an internal complaint.
6.
The lack of any response to the internal complaint by 22 July
prompted the complainant to file a complaint under Article VII,
paragraph 3, of the Statute of the Tribunal on 19 October 2012 against
what she considered to be an implied rejection of her internal complaint.
7.
The complainant enters four pleas in support of her claims,
namely:
— breach of Articles 62 and 62a of the Staff Regulations governing
officials of the Eurocontrol Agency and of Articles 2(2) a) and 3
of Rule of Application No. 27;
Judgment No. 3406
6
— breach of Article 67 of the Staff Regulations;
— breach of Articles 1 and 2(2) c) and d) of Rule of Application
No. 27, and
— breach of the principle of equal treatment.
8.
In the meantime, on 3 October 2012, the complainant's internal
complaint had been submitted to the Joint Committee for Disputes. On
22 November 2012 the Board issued an opinion ...
- ... who had lodged an internal complaint before [her]" and
who, as a result, had been granted tax relief for dependent children as
from 1 December 2011 as a gesture of goodwill.
In view of the fact that this express rejection has occurred in the
course of the proceedings and has thus replaced the implicit decision
originally impugned before the Tribunal, the complaint is to be
regarded as being directed against this new decision.
10.
Relying on Judgment 1408, Eurocontrol objects to the
receivability of the complaint in respect of the period before
1 December 2011. It argues that since the tax relief was reflected in
payslips, the complainant should have complied with the time limits
for challenging them. As she failed to do so for the period prior to
1 December 2011, her complaint must be declared irreceivable.
11.
This objection is well-founded, as under Article 92(2) of the
Staff Regulations, a complaint must be lodged within ...
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