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- Judgment 4769
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
- ... Eurocontrol
137th Session Judgment No. 4769
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 16 April
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 14 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 17 December 2021 and
Eurocontrol's final comments thereon of 8 March ...
- ... Eurocontrol) on 16 April
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 14 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 17 December 2021 and
Eurocontrol's final comments thereon of 8 March 2022;
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 ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
137th Session Judgment No. 4769
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 16 April
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 14 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 17 December 2021 and
Eurocontrol's final comments thereon of 8 March 2022;
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 ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
137th Session Judgment No. 4769
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 16 April
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 14 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 17 December 2021 and
Eurocontrol's final comments thereon of 8 March 2022;
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 impugns what he refers to as decisions ...
- ...
v.
Eurocontrol
137th Session Judgment No. 4769
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 16 April
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 14 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 17 December 2021 and
Eurocontrol's final comments thereon of 8 March 2022;
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 impugns what he refers to as decisions concerning
Eurocontrol Agency's reorganisation, and his transfer following that
reorganisation.
The complainant ...
- ... 8 January
2021, the complainant's further submissions of 17 December 2021 and
Eurocontrol's final comments thereon of 8 March 2022;
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 impugns what he refers to as decisions concerning
Eurocontrol Agency's reorganisation, and his transfer following that
reorganisation.
The complainant joined Eurocontrol in 1993. At the material time,
he was Head of the COM & Frequency Coordination Unit in the
Network CNS/IM Services Division of the Network Management
Directorate (DNM). Among other areas, that division dealt with
network infrastructure and was made up of five units.
Judgment No. 4769
2
By an internal memorandum of 4 July 2019, the Director ...
- ... of 8 March 2022;
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 impugns what he refers to as decisions concerning
Eurocontrol Agency's reorganisation, and his transfer following that
reorganisation.
The complainant joined Eurocontrol in 1993. At the material time,
he was Head of the COM & Frequency Coordination Unit in the
Network CNS/IM Services Division of the Network Management
Directorate (DNM). Among other areas, that division dealt with
network infrastructure and was made up of five units.
Judgment No. 4769
2
By an internal memorandum of 4 July 2019, the Director General
notified all staff of a change in the Agency's organisational structure
intended to improve organisational ...
- ... (DNM). Among other areas, that division dealt with
network infrastructure and was made up of five units.
Judgment No. 4769
2
By an internal memorandum of 4 July 2019, the Director General
notified all staff of a change in the Agency's organisational structure
intended to improve organisational efficiency and effectiveness. Among
the reasons for the Agency's structural changes, he referred to the staff
non-replacement policy approved by Eurocontrol's decision-making
bodies and to a related study and its recommendations. Those
recommendations focused on reducing the number of units in the
Agency and on grouping activities and expertise to build synergies and
avoid duplication of tasks in different directorates. The memorandum
stated that the reorganisation would come into effect on 4 July 2019,
but that it should be implemented by the end of September 2019
"through final organisational decisions at Directorate and ...
- ...
the Directorate's new structure, to assign staff within that new structure
and to identify the possible publication of competitions, all by the end
of September 2019. He also designated the managers who would be in
charge of the various DNM divisions in the meantime. Someone other than
the complainant was chosen to take charge of the new Infrastructure
Division.
On 20 September 2019 the Director General signed Decision
No. I/25a (2019) 04/07/2019 concerning Eurocontrol Agency's
organisation and Decision No. XVI/4 (2019) 04/07/2019 regarding the
organisation of the Network Management Directorate. These decisions
stipulated that they would take effect on 4 July 2019.
On 20 September 2019 the complainant lodged an internal
complaint pursuant to Article 92(2) of the Staff Regulations governing
officials of the Eurocontrol Agency against the internal memoranda of
4 and 5 July 2019. He stated the following in his internal complaint:
Judgment ...
- ...
Division.
On 20 September 2019 the Director General signed Decision
No. I/25a (2019) 04/07/2019 concerning Eurocontrol Agency's
organisation and Decision No. XVI/4 (2019) 04/07/2019 regarding the
organisation of the Network Management Directorate. These decisions
stipulated that they would take effect on 4 July 2019.
On 20 September 2019 the complainant lodged an internal
complaint pursuant to Article 92(2) of the Staff Regulations governing
officials of the Eurocontrol Agency against the internal memoranda of
4 and 5 July 2019. He stated the following in his internal complaint:
Judgment No. 4769
3
"Since their publication, these decisions have led to major structural
changes and the creation of new posts, such as that of the Head of the
iCNS Unit for example, which was assigned by appointment in
violation of internal rules"
*
. The complainant considered that the
memoranda of 4 and 5 July 2019 adversely ...
- ...
4
for Disputes and informed him that she did not agree with the members
who considered his internal complaint well founded and that she had
decided to dismiss it as groundless.
The complainant asks the Tribunal to set aside the internal
memoranda of 4 and 5 July 2019, Decision No. I/25a (2019) 04/07/2019
and Decision No. XVI/4 (2019) 04/07/2019, as well as the decision of
27 September 2019 ordering his transfer. He also asks the Tribunal to
"order [Eurocontrol] to comply" with Articles 7 and 30 of the Staff
Regulations. He further seeks a sum of 5,000 euros in compensation for
the moral injury he considers he has suffered. Lastly, he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable and, subsidiarily, as unfounded.
CONSIDERATIONS
1.
In his complaint of 16 April 2020, the complainant impugns
before the Tribunal the implied decision to reject his internal complaint
lodged on 20 September ...
- ... asks the Tribunal to set aside the internal
memoranda of 4 and 5 July 2019, Decision No. I/25a (2019) 04/07/2019
and Decision No. XVI/4 (2019) 04/07/2019, as well as the decision of
27 September 2019 ordering his transfer. He also asks the Tribunal to
"order [Eurocontrol] to comply" with Articles 7 and 30 of the Staff
Regulations. He further seeks a sum of 5,000 euros in compensation for
the moral injury he considers he has suffered. Lastly, he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable and, subsidiarily, as unfounded.
CONSIDERATIONS
1.
In his complaint of 16 April 2020, the complainant impugns
before the Tribunal the implied decision to reject his internal complaint
lodged on 20 September 2019 pursuant to Article 92(2) of the Staff
Regulations governing officials of the Eurocontrol Agency. The internal
complaint was mainly directed against an internal memorandum issued
by the Director ...
- ... euros in compensation for
the moral injury he considers he has suffered. Lastly, he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable and, subsidiarily, as unfounded.
CONSIDERATIONS
1.
In his complaint of 16 April 2020, the complainant impugns
before the Tribunal the implied decision to reject his internal complaint
lodged on 20 September 2019 pursuant to Article 92(2) of the Staff
Regulations governing officials of the Eurocontrol Agency. The internal
complaint was mainly directed against an internal memorandum issued
by the Director General on 4 July 2019 concerning the Agency's
reorganisation and an internal memorandum issued by the Network
Management Director concerning the implementation of the new
structure of the Network Management Directorate (DNM), both of
which, according to the complainant, adversely affected him.
In his internal complaint, the complainant alleged that he had
suffered ...
- ... of division positions that had not been advertised,
leaving him "in a state of uncertainty as to [his] future in the
Organisation"
*
. While not wishing to cause injury to colleagues
*
Registry's translation.
Judgment No. 4769
5
appointed to these positions, he asked the Director General to "discuss
possible alternatives to cancelling [the] decision not to appoint [him]
and to appoint [his] colleagues"
*
.
2.
Eurocontrol contends that the complaint is irreceivable
because the complainant did not exhaust the internal means of redress
available to him as an official of the Organisation, contrary to the
requirements of Article VII, paragraph 1, of the Statute of the Tribunal.
However, the Tribunal notes that, under the last sentence of
Article 92(2) of the Staff Regulations, an implied decision rejecting the
complainant's internal complaint that could be challenged before the
Tribunal arose ...
- ... the decision expressly rejecting the complainant's
internal complaint, the Tribunal considers it appropriate to treat the
complaint as if it were directed against that decision (for similar cases, see,
in particular, Judgments 4660, consideration 6, 4065, consideration 3,
and 2786, consideration 3).
4.
In his claims for relief, the complainant indicates that he asks
the Tribunal to review the lawfulness of five decisions. He also asks the
Tribunal to "order [Eurocontrol] to comply with Articles 7 and 30 of
the Staff Regulations". Lastly, he requests the Tribunal to order the
Organisation to pay him 5,000 euros in moral damages.
5.
Three of the decisions which the complainant challenges as
unlawful and seeks to have set aside are general decisions. The first,
which he describes as the Director General's "final decision" of 4 July
2019, is actually an internal memorandum informing staff of the
Agency's reorganisation. The other ...
- ... of its Statute for failure to exhaust internal remedies.
9.
It follows from the foregoing considerations that the
complainant's claims for the setting aside of the internal memoranda of
4 and 5 July 2019, of Decision No. I/25a (2019) 04/07/2019, of
Decision No. XVI/4 (2019) 04/07/2019 and of the decision of
27 September 2019 transferring him must all be dismissed as
irreceivable.
10.
The Tribunal further considers that the complainant's request
for Eurocontrol to be "ordered to comply" with Articles 7 and 30 of the
Staff Regulations cannot be granted. It is settled case law that it is not
for the Tribunal to issue such general declarations or declarations of
law, or declaratory orders (see, for example, Judgments 4637,
consideration 6, 4492, consideration 8, and 4246, consideration 11).
11.
Lastly, as regards the moral injury for which the complainant
claims moral damages of 5,000 euros, the Tribunal observes that this
claim ...
- ... explains he suffered owing to the
Judgment No. 4769
9
allegedly unlawful decisions examined above. Since, as previously
stated, the complainant's claims on this point must all be dismissed as
irreceivable, the related claim for moral damages must likewise be
dismissed.
12.
It follows from all the foregoing considerations that the
complaint must be dismissed in its entirety, without there being any
need for the Tribunal to rule on Eurocontrol's other objections to
receivability.
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 15 November 2023,
Mr Patrick Frydman, President of the Tribunal, Mr Jacques Jaumotte,
Judge, and Mr Clément Gascon, Judge, sign below, as do I, Mirka
Dreger, Registrar.
Delivered on 31 January 2024 by video recording posted on the
Tribunal's Internet page.
(Signed)
P
ATRICK
F
RYDMAN
J
ACQUES
J
AUMOTTE
C
LÉMENT ...
- Judgment 4768
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
- ... Eurocontrol
137th Session Judgment No. 4768
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr H. K. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 18 May
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 15 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 9 July 2021 and
Eurocontrol's final comments thereon of 7 October 2021; ...
- ... Eurocontrol) on 18 May
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 15 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 9 July 2021 and
Eurocontrol's final comments thereon of 7 October 2021;
Considering the Tribunal's request for further submissions of
26 June 2023, the complainant's comments of 10 July 2023, and
Eurocontrol's comments of 26 July 2023;
Considering Articles II, paragraph 5, and ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
K.
v.
Eurocontrol
137th Session Judgment No. 4768
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr H. K. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 18 May
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 15 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 9 July 2021 and
Eurocontrol's final comments thereon of 7 October 2021;
Considering the Tribunal's request for further submissions of
26 June 2023, the complainant's comments of 10 July 2023, and
Eurocontrol's comments of 26 July 2023;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
K.
v.
Eurocontrol
137th Session Judgment No. 4768
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr H. K. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 18 May
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 15 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 9 July 2021 and
Eurocontrol's final comments thereon of 7 October 2021;
Considering the Tribunal's request for further submissions of
26 June 2023, the complainant's comments of 10 July 2023, and
Eurocontrol's comments of 26 July 2023;
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, ...
- ...
v.
Eurocontrol
137th Session Judgment No. 4768
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr H. K. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 18 May
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 15 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 9 July 2021 and
Eurocontrol's final comments thereon of 7 October 2021;
Considering the Tribunal's request for further submissions of
26 June 2023, the complainant's comments of 10 July 2023, and
Eurocontrol's comments of 26 July 2023;
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: ...
- ... against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 18 May
2020, Eurocontrol's reply of 14 August 2020, the complainant's
rejoinder of 15 October 2020, Eurocontrol's surrejoinder of 8 January
2021, the complainant's further submissions of 9 July 2021 and
Eurocontrol's final comments thereon of 7 October 2021;
Considering the Tribunal's request for further submissions of
26 June 2023, the complainant's comments of 10 July 2023, and
Eurocontrol's comments of 26 July 2023;
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 impugns what he refers to as decisions concerning
Eurocontrol Agency's reorganisation and his transfer following that
reorganisation.
The complainant joined ...
- ... for further submissions of
26 June 2023, the complainant's comments of 10 July 2023, and
Eurocontrol's comments of 26 July 2023;
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 impugns what he refers to as decisions concerning
Eurocontrol Agency's reorganisation and his transfer following that
reorganisation.
The complainant joined Eurocontrol in 2006. At the material time,
he was an administrator in the Central IT (CIT) Service of the Central
Route Charges Office, Finance and Central IT Directorate (CFI).
Judgment No. 4768
2
By an internal memorandum of 4 July 2019, the Director General
notified all staff of a change in the Agency's organisational structure
intended to improve ...
- ... of 26 July 2023;
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 impugns what he refers to as decisions concerning
Eurocontrol Agency's reorganisation and his transfer following that
reorganisation.
The complainant joined Eurocontrol in 2006. At the material time,
he was an administrator in the Central IT (CIT) Service of the Central
Route Charges Office, Finance and Central IT Directorate (CFI).
Judgment No. 4768
2
By an internal memorandum of 4 July 2019, the Director General
notified all staff of a change in the Agency's organisational structure
intended to improve organisational efficiency and effectiveness. Among
the reasons for the Agency's structural changes, he referred ...
- ... in the Central IT (CIT) Service of the Central
Route Charges Office, Finance and Central IT Directorate (CFI).
Judgment No. 4768
2
By an internal memorandum of 4 July 2019, the Director General
notified all staff of a change in the Agency's organisational structure
intended to improve organisational efficiency and effectiveness. Among
the reasons for the Agency's structural changes, he referred to the staff
non-replacement policy approved by Eurocontrol's decision-making
bodies and to a related study and its recommendations. Those
recommendations focused on reducing the number of units in the
Agency and on grouping activities and expertise to build synergies and
avoid duplication of tasks in different directorates. The memorandum
stated that the reorganisation would come into effect on 4 July 2019,
but that it should be implemented by the end of September 2019
"through final organisational decisions at Directorate and ...
- ... memorandum of 5 July 2019, the Network Manager
Director informed staff that he was working to implement the
Directorate's new structure, to assign staff within the new structure and
to identify the possible publication of competitions, all by the end of
September 2019. He also designated the managers who would be in
charge of the various DNM divisions in the meantime.
On 20 September 2019 the Director General signed Decision
No. I/25a (2019) 04/07/2019 concerning Eurocontrol Agency's
organisation and Decision No. XVI/4 (2019) 04/07/2019 regarding the
organisation of the Network Management Directorate. These decisions
stipulated that they would take effect on 4 July 2019.
On 27 September 2019 the Director General took a decision to
reassign a number of staff, pursuant to which the complainant was
transferred to the IT Organisation, Coordination and Business Relations
Management (NMD/TEC/OCB) Unit in the DNM's Technology
Division.
On ...
- ...
stipulated that they would take effect on 4 July 2019.
On 27 September 2019 the Director General took a decision to
reassign a number of staff, pursuant to which the complainant was
transferred to the IT Organisation, Coordination and Business Relations
Management (NMD/TEC/OCB) Unit in the DNM's Technology
Division.
On 21 October 2019 the complainant lodged an internal complaint
pursuant to Article 92 of the Staff Regulations governing officials of
the Eurocontrol Agency against the transfer decision of 27 September
Judgment No. 4768
3
2019 insofar as it concerned him. In the internal complaint, he criticised
the "degradation" of his responsibilities and requested a "written
individual decision that specifie[d] [his] tasks and responsibilities that
[were] as a minimum in the scope of [his] previous job with a proper
assessment of the grade associated to the new position".
On 28 November 2019 the Administration ...
- ... a job description.
On 1 October 2021 the Director General informed the complainant
that he did not agree with the Committee's opinion and that he had
decided to dismiss his internal complaint as irreceivable and unfounded.
The complainant asks the Tribunal to set aside the decision of
27 September 2019 transferring him, the Director General's internal
memorandum of 4 July 2019 and the organisation charts dated 4 and
5 May 2020. He also asks the Tribunal to "order [Eurocontrol] to
comply" with Articles 7 and 30 of the Staff Regulations and to establish
and provide him with a real post and a description of his duties, tasks
and responsibilities commensurate with his grade, level and experience.
He further claims an award of 25,000 euros in compensation for the
moral injury he considers he has suffered, the amount of which he re
assesses in his rejoinder at 50,000 euros. Lastly, he seeks costs, which
he assesses at 8,000 euros in his comments ...
- ... to establish
and provide him with a real post and a description of his duties, tasks
and responsibilities commensurate with his grade, level and experience.
He further claims an award of 25,000 euros in compensation for the
moral injury he considers he has suffered, the amount of which he re
assesses in his rejoinder at 50,000 euros. Lastly, he seeks costs, which
he assesses at 8,000 euros in his comments of 10 July 2023.
Judgment No. 4768
4
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable and, subsidiarily, as unfounded.
CONSIDERATIONS
1.
In his complaint of 18 May 2020, the complainant impugns
before the Tribunal the implied decision to reject his internal complaint
lodged on 21 October 2019 pursuant to Article 92 of the Staff
Regulations governing officials of the Eurocontrol Agency. In that
internal complaint, the complainant challenged the collective transfer
decision of 27 September ...
- ...
he assesses at 8,000 euros in his comments of 10 July 2023.
Judgment No. 4768
4
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable and, subsidiarily, as unfounded.
CONSIDERATIONS
1.
In his complaint of 18 May 2020, the complainant impugns
before the Tribunal the implied decision to reject his internal complaint
lodged on 21 October 2019 pursuant to Article 92 of the Staff
Regulations governing officials of the Eurocontrol Agency. In that
internal complaint, the complainant challenged the collective transfer
decision of 27 September 2019 in so far as it transferred him to the
NMD/TEC/OCB Unit in the Technology Division of the Network
Management Directorate (DNM) following the Agency's reorganisation.
According to the complainant, that reorganisation had been carried out
without transparency and without proper consultation with him, it had
not taken into account the responsibilities to be ...
- ... owing to its lack of clarity and precision. The complainant also
asked the Director General to take an individual written decision setting
out his tasks and responsibilities, which should be at least at the level
of his previous position, with a proper assessment of the grade
associated with this new position. He stated that he would not accept a
downgrading of his role and that he expected an adequate and proper
dialogue to take place on this subject.
2.
Eurocontrol contends that the complaint is irreceivable because
the complainant did not exhaust the internal means of redress available
to him as an official of the Organisation, contrary to the requirements
of Article VII, paragraph 1, of the Statute of the Tribunal. However, the
Tribunal notes that, under the last sentence of Article 92(2) of the Staff
Regulations, an implied decision rejecting the complainant's internal
complaint that could be challenged before the Tribunal arose ...
- ... No. 4768
6
5.
However, the Tribunal observes that, in his internal complaint
of 21 October 2019, in addition to challenging his transfer on
27 September, the complainant - as he himself states in his rejoinder -
in effect requested a position complying with the applicable rules and
the corresponding job description. In Judgment 4694, consideration 7,
in the case of such a request, the Tribunal pointed out that Article 92(1)
of Eurocontrol's Staff Regulations, on which the complainant relies,
provides that, if that request is rejected, whether implicitly or explicitly,
an internal complaint as referred to in Article 92(2) must be lodged
against that rejection before the matter is brought before the Tribunal.
In Judgment 4694, consideration 8, the Tribunal further stated:
"However, the submissions show that no internal complaint challenging
this implied or express decision to refuse [his request] was ever made ...
- ... of the Tribunal."
It follows that the challenge to the decision rejecting the request for
"a written individual decision that specifie[d] [the complainant's] tasks
and responsibilities that [were] as a minimum in the scope of [his]
previous job with a proper assessment of the grade associated to the
new position" is irreceivable because the complainant failed to exhaust
internal remedies. The same applies to the complainant's claim requesting
the Tribunal to order Eurocontrol to establish and provide him with a
"real position and a description of the duties, tasks and responsibilities
[...] commensurate with his grade, level and experience".
6.
The complainant submits that the organisational charts of
4 May 2020 and 5 May 2020 - which, incidentally, were merely
documents appearing on slides used during an internal presentation by
the DNM's Technology Division - are unlawful or invalid. However,
these documents post-date the complainant's ...
- ... is the case of
the memorandum at issue - cannot be impugned, save in exceptional
cases, and its lawfulness may only be challenged in the context of a
challenge to the individual decisions that are taken on its basis (see, for
example, Judgments 4734, consideration 4, 4572, consideration 3, 4278,
consideration 2, 3736, consideration 3, and 3628, consideration 4).
8.
In respect of the complainant's submission in paragraph 81 of
his rejoinder that compliance by Eurocontrol with its obligations
"should take the form of the assignment of the post of Head of SQI
*
,
currently filled by an acting post holder, which should be announced
vacant and possibly filled by means of a transfer pursuant to
Article 7"
**
, it must be noted that this request is not one of the claims
formally set out by the complainant in his submissions. Moreover, even
if this submission were to be construed as a claim, it would in any event
be irreceivable ...
- ... that this request is not one of the claims
formally set out by the complainant in his submissions. Moreover, even
if this submission were to be construed as a claim, it would in any event
be irreceivable as it was not raised by the complainant at any point in
his internal complaint of 21 October 2019. The complainant has thus
not exhausted the internal means of redress in this respect either.
9.
Lastly, the Tribunal considers that the complainant's claim for
Eurocontrol to be "ordered to comply" with Articles 7 and 30 of the
Staff Regulations cannot be granted. It is settled case law that it is not for
the Tribunal to issue such general declarations or declarations of law, or
declaratory orders (see, for example, Judgments 4637, consideration 6,
4492, consideration 8, and 4246, consideration 11).
10.
It follows from these various considerations that the
complaint is receivable only in that it is directed against the collective
transfer ...
- ... the
complainant.
*
IT Security and Quality.
**
Registry's translation.
Judgment No. 4768
8
11.
The complainant's arguments against that decision focus on,
firstly, its lack of reasoning; secondly, its failure to respect the
principles of legal certainty, transparency and sound administration in
the implementation of the Agency's reorganisation, in breach of
competitive recruitment procedures and Articles 7 and 30 of
Eurocontrol's Staff Regulations; and, thirdly, the frustration of his
legitimate expectations concerning the assignment of his post and his
job description, and a breach of his right to be heard on this matter.
12.
In respect of staff transfers, the Tribunal stated the following
in Judgment 4687, consideration 5, which refers to Judgments 4595,
consideration 2, and 4427, consideration 2:
"Consistent precedent has it that an executive head of an international
organization has ...
- ... is
collective in scope (see, for example, Judgments 4593, consideration 7,
and 4283, consideration 6), in the present case, even if the impugned
decision was collective in scope, it was obviously not impersonal. The
Tribunal considers that a decision which, as in this case, notifies
specifically identified staff members of their new individual postings
with effect from 4 July 2019 cannot be considered an impersonal
decision.
The Tribunal is not persuaded by Eurocontrol's argument that it
would not be "conceivable or even possible" for an organisation to
consult individually each staff member before a collective transfer on
the scale of that at issue in the present case, which affected over
600 staff members. The Organisation cannot refer to the scale of the
collective transfer in support of its argument that it was not required to
allow every staff member to comment before transferring her or him,
even if this was done in a manner that ...
- ... as the complainant argues in his
submissions, the delay of 23 months in reaching a decision on his
internal complaint was clearly excessive and it was particularly
unreasonable that the Director General did not take a decision until
more than 10 months after the Joint Committee for Disputes had issued
its opinion. As the complainant has not submitted any claim for
damages under this head, no specific order will be made. However, the
Tribunal wishes to point out to Eurocontrol that such a delay, which it
does not convincingly justify in its submissions, is unacceptable.
17.
As the complainant succeeds, he is entitled to the sum of
8,000 euros that he claims in costs.
Judgment No. 4768
11
DECISION
For the above reasons,
1.
The Director General's collective transfer decision of 27 September
2019 is set aside insofar as it concerns the complainant.
2.
Eurocontrol shall pay the complainant moral ...
- ... wishes to point out to Eurocontrol that such a delay, which it
does not convincingly justify in its submissions, is unacceptable.
17.
As the complainant succeeds, he is entitled to the sum of
8,000 euros that he claims in costs.
Judgment No. 4768
11
DECISION
For the above reasons,
1.
The Director General's collective transfer decision of 27 September
2019 is set aside insofar as it concerns the complainant.
2.
Eurocontrol shall pay the complainant moral damages in the amount
of 10,000 euros.
3.
It shall also pay him costs in the amount of 8,000 euros.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 15 November 2023,
Mr Patrick Frydman, President of the Tribunal, Mr Jacques Jaumotte,
Judge, and Mr Clément Gascon, Judge, sign below, as do I, Mirka
Dreger, Registrar.
Delivered on 31 January 2024 by video recording posted on the
Tribunal's Internet ...
- Judgment 4767
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests a compensatory allowance to offset financial losses resulting from a restructuring.
- ... Eurocontrol
137th Session Judgment No. 4767
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms B. V. A. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 23 October 2021, Eurocontrol's reply of 6 May 2022, the
complainant's rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of
31 August 2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol)
on 23 October 2021, Eurocontrol's reply of 6 May 2022, the
complainant's rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of
31 August 2022;
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 requests a compensatory allowance ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
V. A. (No. 4)
v.
Eurocontrol
137th Session Judgment No. 4767
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms B. V. A. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 23 October 2021, Eurocontrol's reply of 6 May 2022, the
complainant's rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of
31 August 2022;
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 requests a compensatory allowance to offset
financial losses resulting ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
V. A. (No. 4)
v.
Eurocontrol
137th Session Judgment No. 4767
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Ms B. V. A. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 23 October 2021, Eurocontrol's reply of 6 May 2022, the
complainant's rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of
31 August 2022;
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 requests a compensatory allowance to offset
financial losses resulting from a restructuring.
Until 30 November 2020 the integrated manual flight plan ...
- ... ensuring CFMU's continuous operation) who
belonged to the FCO function group (for jobs involving traffic flow and
capacity management operations), and group E2 (comprising operational
Judgment No. 4767
2
support staff) who also belonged to the FCO function group. The two
units were merged as from 1 December 2020 owing to a restructuring
and all initial flight plan processing operations were transferred to
Brussels.
The complainant joined Eurocontrol, at Brétigny-sur-Orge, on
16 January 1994 as an official at grade C5, step 2, assigned to IFPU2
under a limited-term appointment of five years. With effect from 1 May
2002, her appointment was converted into an appointment for an
unlimited period, then as of 1 September 2005 she was awarded the title
of Assistant Air Traffic Flow and Capacity Manager (ATFCM) while
remaining employed in IFPU2. Until the restructuring came into effect,
she received an ATFCM functional allowance ...
- ...
transferred to Belgium. Two options were offered to the staff members
concerned: they could relocate to Brussels and be assigned to IFPU1 or
they could be redeployed in Brétigny-sur-Orge in the Operational
Systems Digitalisation Unit, whose staff members were also FCO staff
in group E2. The deadline by which staff members could state their
choice was 15 January 2020 and it was later extended until 24 January.
According to the complainant's account, contradicted by Eurocontrol,
the Network Management Director said at the meeting: "Nobody will
lose money".
Judgment No. 4767
3
Individual meetings between IFPU2 staff members and the
administration were held from 14 to 19 November 2019. The
complainant's meeting took place on 19 November. She expressed her
preference for remaining employed in Brétigny-sur-Orge owing to her
age and family situation. By an individual email of 10 December 2019,
she received salary ...
- ... decision of 15 July 2020, the complainant was
informed that, with effect from 1 December 2020, she would be
appointed Operational Support Specialist in DNM at Brétigny-sur-Orge
and would retain her grade, step and seniority. Her ATFCM functional
allowance would be set at 75 per cent and the shift work allowance
would stop.
On 4 September 2020 the complainant lodged an internal
complaint under Article 92(2) of the Staff Regulations governing
officials of the Eurocontrol Agency against Decision No. I/31 (2020).
Citing a breach of her acquired rights, she requested a compensatory
allowance equal to the difference between her new net remuneration
and the remuneration she had received before the restructuring. On
6 October the Head of Human Resources and Services acknowledged
Judgment No. 4767
4
receipt of the internal complaint and informed the complainant that it
had been forwarded to the Joint Committee for Disputes ...
- ... Human Resources and Services acknowledged receipt of the
internal complaint of 26 March and informed the complainant that it
had also been forwarded to the Joint Committee for Disputes.
The complainant filed a complaint with the Tribunal on 23 October
2021. She states that she impugns the implied rejection of her internal
complaint dated 26 March 2021, as notified to the Administration on
30 March 2021, and requests the Tribunal to set aside that decision, to
order Eurocontrol to restore all her rights predating the merger of the
IFPUs, including the payment of "identical remuneration taking into
account her foreseeable and logical career progression", to pay her
financial compensation of 40,000 euros for the moral injury she alleged
she has suffered, to order that interest for late payment at the rate of
5 per cent per annum be paid on these sums, with that interest
compounded, and, lastly, to order the Organisation to pay costs in the
amount ...
- ... predating the merger of the
IFPUs, including the payment of "identical remuneration taking into
account her foreseeable and logical career progression", to pay her
financial compensation of 40,000 euros for the moral injury she alleged
she has suffered, to order that interest for late payment at the rate of
5 per cent per annum be paid on these sums, with that interest
compounded, and, lastly, to order the Organisation to pay costs in the
amount of 6,000 euros.
Eurocontrol asks the Tribunal to dismiss the complaint as "not
receivable" and, subsidiarily, as unfounded.
Judgment No. 4767
5
CONSIDERATIONS
1.
The complainant seeks the setting aside of the implied
decision to reject her internal complaint of 26 March 2021 for the award
of a compensatory allowance for which she considered herself eligible
in the circumstances described in the summary of the facts above.
2.
In her first plea, the complainant ...
- ... setting aside of the implied
decision to reject her internal complaint of 26 March 2021 for the award
of a compensatory allowance for which she considered herself eligible
in the circumstances described in the summary of the facts above.
2.
In her first plea, the complainant submits that reasonable time
did not elapse between the Organisation informing her of the
restructuring and its implementation, which was unlawful. On the same
ground, she considers that Eurocontrol breached its duties of good faith,
care and transparency as she was not informed sufficiently early of the
consequences of that restructuring to enable her to make an informed
and well-considered decision about her professional future. The two
and-a-half-month time limit given to her to choose whether to move
abroad with her son was especially unreasonable, in her view, given
that both she and her son have severe disabilities.
First of all, the Tribunal recalls its settled ...
- ... further submits that the Organisation did not keep the
promise made orally by the Network Management Director at the
aforementioned meeting of 14 November 2019, according to which
Judgment No. 4767
7
staff members of IFPU2 would not experience any adverse financial
effects, regardless of their choice ("Nobody will lose money").
However, even if this remark was actually made at that meeting, it
is clear from the circumstances surrounding Eurocontrol's planned
restructuring that it would inevitably lead to staff members who did not
agree to be relocated to Brussels losing some pay. In this context, this
remark could not be considered in isolation or understood as having the
significance attributed to it by the complainant.
The second plea is also unfounded.
4.
The complainant submits that, in any event, the reduction or
withdrawal of the allowances allegedly due to her in her capacity as a
member of staff ...
- ...
appointment (see, in particular, Judgments 4381, consideration 14,
4195, consideration 7, and 4028, consideration 13).
In the present case, there can be no question of any breach of the
complainant's acquired rights. In view of the relative amount involved,
the pay reduction at issue cannot be regarded as disturbing the structure
of the contract of appointments or impairing fundamental terms of
appointment in consideration of which the complainant joined
Eurocontrol.
The third plea is also unfounded.
5.
Lastly, the complainant alleges that the principle of equal
treatment was breached in that two staff members who, like her, had
chosen to remain in Brétigny-sur-Orge and thereby became FCO staff
in group E2 received financial compensation to cover the difference in
total remuneration paid before and after the abolition of IFPU2.
Judgment No. 4767
8
However, it is clear from the file that the two staff ...
- ... not the case of the complainant
who was therefore not in an identical or similar situation to that of those
two other staff members and so cannot legitimately rely on a breach of
the principle of equal treatment (see, for example, Judgments 4712,
consideration 5, 4681, consideration 9, and 4498, consideration 27).
The plea fails.
6.
It follows from the foregoing that the complaint must be
dismissed in its entirety, without there being any need to rule on
Eurocontrol's objection to receivability, for which it has not provided
any details.
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 3 November 2023,
Mr Patrick Frydman, President of the Tribunal, Mr Jacques Jaumotte,
Judge, and Mr Clément Gascon, Judge, sign below, as do I, Mirka
Dreger, Registrar.
Delivered on 31 January 2024 by video recording posted on the
Tribunal's Internet page.
(Signed)
P
ATRICK
F
RYDMAN
J
ACQUES ...
- Judgment 4766
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests a compensatory allowance to offset financial losses resulting from a restructuring.
- ... Eurocontrol
137th Session Judgment No. 4766
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms C. A. I. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
23 October 2021, Eurocontrol's reply of 6 May 2022, the complainant's
rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of 31 August
2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol) on
23 October 2021, Eurocontrol's reply of 6 May 2022, the complainant's
rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of 31 August
2022;
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 requests a compensatory allowance ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
I. (No. 3)
v.
Eurocontrol
137th Session Judgment No. 4766
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms C. A. I. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
23 October 2021, Eurocontrol's reply of 6 May 2022, the complainant's
rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of 31 August
2022;
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 requests a compensatory allowance to offset
financial losses resulting ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
I. (No. 3)
v.
Eurocontrol
137th Session Judgment No. 4766
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Ms C. A. I. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
23 October 2021, Eurocontrol's reply of 6 May 2022, the complainant's
rejoinder of 5 June 2022 and Eurocontrol's surrejoinder of 31 August
2022;
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 requests a compensatory allowance to offset
financial losses resulting from a restructuring.
Until 30 November 2020 the integrated manual flight plan ...
- ... ensuring CFMU's continuous
operation) who belonged to the FCO function group (for jobs involving
traffic flow and capacity management operations), and group E2
Judgment No. 4766
2
(comprising operational support staff) who also belonged to the FCO
function group. The two units were merged as from 1 December 2020
owing to a restructuring and all initial flight plan processing operations
were transferred to Brussels.
The complainant joined Eurocontrol, at Brétigny-sur-Orge, on
1 September 2002 as an official at grade C3, step 1, assigned to IFPU2
under a limited-term appointment of five years. With effect from 1 May
2003, her appointment was converted into an appointment for an
unlimited period, then as of 1 September 2005 she was awarded the title
of Assistant Air Traffic Flow and Capacity Manager (ATFCM) while
remaining employed in IFPU2. Until the restructuring came into effect,
she received an ATFCM functional ...
- ...
transferred to Belgium. Two options were offered to the staff members
concerned: they could relocate to Brussels and be assigned to IFPU1 or
they could be redeployed in Brétigny-sur-Orge in the Operational
Systems Digitalisation Unit, whose staff members were also FCO staff
in group E2. The deadline by which staff members could state their
choice was 15 January 2020 and it was later extended until 24 January.
According to the complainant's account, contradicted by Eurocontrol,
the Network Management Director said at the meeting: "Nobody will
lose money".
Judgment No. 4766
3
Individual meetings between IFPU2 staff members and the
Administration were held from 14 to 19 November 2019. The
complainant's meeting took place on 19 November. She expressed her
preference for remaining employed in Brétigny-sur-Orge owing to her
family situation and her son's health. By an individual email of
10 December 2019, she received ...
- ... decision of 15 July 2020, the complainant was
informed that, with effect from 1 December 2020, she would be
appointed Operational Support Specialist in DNM at Brétigny-sur-Orge
and would retain her grade, step and seniority. Her ATFCM functional
allowance would be set at 75 per cent and the shift work allowance
would stop.
On 4 September 2020 the complainant lodged an internal complaint
under Article 92(2) of the Staff Regulations governing officials of the
Eurocontrol Agency against aforementioned Decision No. I/31 (2020).
Citing the principles of equal treatment and non-discrimination, she
requested a compensatory allowance equal to the difference between
her new net remuneration and the remuneration she had received before
Judgment No. 4766
4
the restructuring. On 6 October the Head of Human Resources and
Services acknowledged receipt of the internal complaint and informed
the complainant that it had been forwarded ...
- ... Resources and Services acknowledged receipt of the
internal complaint of 26 March and informed the complainant that it
had also been forwarded to the Joint Committee for Disputes.
The complainant filed a complaint with the Tribunal on 23 October
2021. She states that she impugns the implied decision rejecting her
internal complaint of 26 March 2021, as notified to the Administration
on 30 March 2021, and requests the Tribunal to set aside that decision,
to order Eurocontrol to restore all her rights predating the merger of the
IFPUs, including the payment of "identical remuneration taking into
account her foreseeable and logical career progression", to pay her
financial compensation of 40,000 euros for the moral injury she alleges
she has suffered, to order that interest for late payment at the rate of
5 per cent per annum be paid on these sums, with that interest to be
compounded, and, lastly, to order the Organisation to pay costs in the
amount ...
- ... the merger of the
IFPUs, including the payment of "identical remuneration taking into
account her foreseeable and logical career progression", to pay her
financial compensation of 40,000 euros for the moral injury she alleges
she has suffered, to order that interest for late payment at the rate of
5 per cent per annum be paid on these sums, with that interest to be
compounded, and, lastly, to order the Organisation to pay costs in the
amount of 6,000 euros.
Eurocontrol asks the Tribunal to dismiss the complaint as "not
receivable" and, subsidiarily, as unfounded.
Judgment No. 4766
5
CONSIDERATIONS
1.
The complainant seeks the setting aside of the implied
decision to reject her internal complaint of 26 March 2021 for the award
of a compensatory allowance for which she considered herself eligible
in the circumstances described in the summary of the facts above.
2.
In her first plea, the complainant ...
- ... setting aside of the implied
decision to reject her internal complaint of 26 March 2021 for the award
of a compensatory allowance for which she considered herself eligible
in the circumstances described in the summary of the facts above.
2.
In her first plea, the complainant submits that reasonable time
did not elapse between the Organisation informing her of the
restructuring and its implementation, which was unlawful. On the same
ground, she considers that Eurocontrol breached its duties of good faith,
care and transparency as she was not informed sufficiently early of the
consequences of that restructuring to enable her to make an informed
and well-considered decision about her professional future. The two
and-a-half-month time limit given to her to choose whether to move
abroad with her son was especially unreasonable, in her view, given
that he was suffering from a serious illness and that her husband would
have had to look for a ...
- ... further submits that the Organisation did not keep the
promise made orally by the Network Management Director at the
aforementioned meeting of 14 November 2019, according to which
Judgment No. 4766
7
staff members of IFPU2 would not experience any adverse financial
effects, regardless of their choice ("Nobody will lose money").
However, even if this remark was actually made at that meeting, it
is clear from the circumstances surrounding Eurocontrol's planned
restructuring that it would inevitably lead to staff members who did not
agree to be relocated to Brussels losing some pay. In this context, this
remark could not be considered in isolation or understood as having the
significance attributed to it by the complainant.
The second plea is also unfounded.
4.
The complainant submits that, in any event, the reduction or
withdrawal of the allowances allegedly due to her in her capacity as a
member of staff ...
- ... accepted
appointment (see, in particular, Judgments 4381, consideration 14,
4195, consideration 7, and 4028, consideration 13).
In the present case, there can be no question of any breach of the
complainant's acquired rights. In view of the relative amount involved,
the pay reduction at issue cannot be regarded as disturbing the structure
of the contract of appointment or impairing fundamental terms of
appointment in consideration of which the complainant joined
Eurocontrol.
The third plea is also unfounded.
5.
Lastly, the complainant alleges that the principle of equal
treatment was breached in that two staff members who, like her, had
chosen to remain in Brétigny-sur-Orge and thereby became FCO staff
in group E2 received financial compensation to cover the difference in
total remuneration paid before and after the abolition of IFPU2.
Judgment No. 4766
8
However, it is clear from the file that the two staff ...
- ... not the case of the complainant
who was therefore not in an identical or similar situation to that of those
two other staff members and so cannot legitimately rely on a breach of
the principle of equal treatment (see, for example, Judgments 4712,
consideration 5, 4681, consideration 9, and 4498, consideration 27).
The plea fails.
6.
It follows from the foregoing that the complaint must be
dismissed in its entirety, without there being any need to rule on
Eurocontrol's objection to receivability, for which it has not provided
any details.
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 3 November 2023,
Mr Patrick Frydman, President of the Tribunal, Mr Jacques Jaumotte,
Judge, and Mr Clément Gascon, Judge, sign below, as do I, Mirka
Dreger, Registrar.
Delivered on 31 January 2024 by video recording posted on the
Tribunal's Internet page.
(Signed)
P
ATRICK
F
RYDMAN
J
ACQUES ...
- Judgment 4765
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to open an administrative investigation into his conduct, and the dismissal of his harassment complaint.
- ... Eurocontrol
137th Session Judgment No. 4765
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. G. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 3 March 2021, Eurocontrol's reply of 24 June 2021, the
complainant's rejoinder of 21 October 2021 and Eurocontrol's
surrejoinder of 10 January 2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol)
on 3 March 2021, Eurocontrol's reply of 24 June 2021, the
complainant's rejoinder of 21 October 2021 and Eurocontrol's
surrejoinder of 10 January 2022;
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 open ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
G. (No. 2)
v.
Eurocontrol
137th Session Judgment No. 4765
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. G. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 3 March 2021, Eurocontrol's reply of 24 June 2021, the
complainant's rejoinder of 21 October 2021 and Eurocontrol's
surrejoinder of 10 January 2022;
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 open an administrative
investigation ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
G. (No. 2)
v.
Eurocontrol
137th Session Judgment No. 4765
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Mr R. G. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 3 March 2021, Eurocontrol's reply of 24 June 2021, the
complainant's rejoinder of 21 October 2021 and Eurocontrol's
surrejoinder of 10 January 2022;
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 open an administrative
investigation into his conduct, and the dismissal of his harassment
complaint.
On 11 October 2018 ...
- ... January 2022;
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 open an administrative
investigation into his conduct, and the dismissal of his harassment
complaint.
On 11 October 2018 the complainant, a Eurocontrol official,
submitted an application to Eurocontrol's Sickness Insurance Scheme
seeking reimbursement for a pair of spectacles, accompanied by a
medical prescription and an optician's invoice. On 25 October 2018
Ms F., a staff member of the Scheme, informed the complainant that he
had not been granted reimbursement for the spectacles because the date
on the medical prescription had been falsified to read 4 October 2018
Judgment No. 4765
2
instead ...
- ... 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 open an administrative
investigation into his conduct, and the dismissal of his harassment
complaint.
On 11 October 2018 the complainant, a Eurocontrol official,
submitted an application to Eurocontrol's Sickness Insurance Scheme
seeking reimbursement for a pair of spectacles, accompanied by a
medical prescription and an optician's invoice. On 25 October 2018
Ms F., a staff member of the Scheme, informed the complainant that he
had not been granted reimbursement for the spectacles because the date
on the medical prescription had been falsified to read 4 October 2018
Judgment No. 4765
2
instead of 4 October 2017, and that she had to inform her own ...
- ... that an
administrative investigation be opened. She added that she had visited
the optician in question while on holiday in Italy and that his invoices
did not match the one submitted by the complainant in support of his
application for reimbursement.
On 7 May 2019 the Director General asked the Head of the
Corporate Security Service to launch an administrative investigation
pursuant to Article 88(2) of the Staff Regulations governing officials of
the Eurocontrol Agency.
By an internal memorandum of 6 October 2020, the Head of the
Corporate Security Service informed the complainant of the opening of
such an investigation.
On 19 October 2020 the complainant lodged an internal complaint
against the memorandum of 6 October 2020. He stated that the
complaint also constituted a formal harassment complaint against
Ms F., Ms B. and the Head of Human Resources and Services and that,
unless the administrative investigation was cancelled, ...
- ... Services to initiate disciplinary
proceedings against the complainant.
On 3 March 2021 the complainant filed a complaint with the
Tribunal against the implied rejection of his internal complaint of
19 October 2020.
Judgment No. 4765
3
On 1 June 2021 the complainant was notified of the decision to
reject his harassment complaint.
The complainant asks the Tribunal to set aside the decision
(memorandum) of 6 October 2020 and to order Eurocontrol to conduct
an administrative investigation into the "machinations" of Ms F.,
Ms B., the Head of Human Resources and Services, the Head of the
Corporate Security Service, and the Director General. He also asks the
Tribunal to declare them guilty of morally harassing him and that the
"investigation conducted outside any framework"
*
by the Head of
Human Resources and Services is unlawful and breached his
fundamental rights. He seeks compensation for the moral injury ...
- ... framework"
*
by the Head of
Human Resources and Services is unlawful and breached his
fundamental rights. He seeks compensation for the moral injury he
considers he has suffered of at least 60,000 euros, including
10,000 euros for the failure to deal with his internal complaint, as well
as exemplary or punitive damages in the amount of 25,000 euros.
Lastly, he claims costs in the amount of 9,500 euros, of which
2,500 euros relate to the internal procedure.
Eurocontrol asks the Tribunal to dismiss the complainant's first
claim, seeking the setting aside of the decision of 6 October 2020, as
irreceivable and to dismiss his other claims as unfounded.
CONSIDERATIONS
1.
Beyond compensation for the moral injury he alleges to have
suffered owing to Eurocontrol's behaviour towards him and an award
of exemplary or punitive damages and costs, the complainant requests,
in particular, that the Tribunal set aside the memorandum of 6 October ...
- ... or punitive damages in the amount of 25,000 euros.
Lastly, he claims costs in the amount of 9,500 euros, of which
2,500 euros relate to the internal procedure.
Eurocontrol asks the Tribunal to dismiss the complainant's first
claim, seeking the setting aside of the decision of 6 October 2020, as
irreceivable and to dismiss his other claims as unfounded.
CONSIDERATIONS
1.
Beyond compensation for the moral injury he alleges to have
suffered owing to Eurocontrol's behaviour towards him and an award
of exemplary or punitive damages and costs, the complainant requests,
in particular, that the Tribunal set aside the memorandum of 6 October
2020 from the Head of the Corporate Security Service notifying him
that an administrative investigation had been launched into his conduct,
declare that various staff members of the Organisation are guilty of
morally harassing him, and order Eurocontrol to "conduct an
administrative investigation" ...
- ... he alleges to have
suffered owing to Eurocontrol's behaviour towards him and an award
of exemplary or punitive damages and costs, the complainant requests,
in particular, that the Tribunal set aside the memorandum of 6 October
2020 from the Head of the Corporate Security Service notifying him
that an administrative investigation had been launched into his conduct,
declare that various staff members of the Organisation are guilty of
morally harassing him, and order Eurocontrol to "conduct an
administrative investigation" into their actions. He further challenges
the dismissal of his internal complaint of moral harassment.
*
Registry's translation.
Judgment No. 4765
4
2.
According to the Tribunal's settled case law, a decision to
open an investigation is not a decision that adversely affects a
complainant since it does not affect her or his legal situation and, in
particular, does not cause any change ...
- ... 15, and the case law cited
therein).
Insofar as the complainant seeks to have the decision
(memorandum) of 6 October 2020 set aside, his complaint must
therefore be declared irreceivable.
3.
As regards the dismissal of the harassment complaint lodged
by the complainant on 19 October 2020, the Tribunal notes that he did
not challenge that decision using the appeal procedures provided for in
Article 92 of the Staff Regulations governing officials of the Eurocontrol
Agency. Under Article 92(2), the complainant ought to have submitted
an internal complaint against the decision on his harassment complaint.
Instead, he impugned it directly before the Tribunal. The complaint is
therefore irreceivable in this respect as the complainant contravened the
requirement laid down in Article VII, paragraph 1, of the Statute of the
Tribunal that internal means of redress be exhausted.
4.
Lastly, although the complainant also requests the ...
- ... 92(2), the complainant ought to have submitted
an internal complaint against the decision on his harassment complaint.
Instead, he impugned it directly before the Tribunal. The complaint is
therefore irreceivable in this respect as the complainant contravened the
requirement laid down in Article VII, paragraph 1, of the Statute of the
Tribunal that internal means of redress be exhausted.
4.
Lastly, although the complainant also requests the Tribunal to
order Eurocontrol to conduct an administrative investigation into
information which he had considered should be disclosed to the
Organisation pursuant to Article 22a of the Staff Regulations, it is not
for the Tribunal in any event to make an order of this kind.
5.
It follows from the foregoing that the complaint must be
dismissed in its entirety.
Judgment No. 4765
5
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this ...
- Judgment 4700
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges measures reorganising his working time.
- ... Eurocontrol
136th Session Judgment No. 4700
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. C.
against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 August 2019, Eurocontrol's reply of 18 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
Considering the applications to intervene filed by Mr G. A., Mr E.
C., Mr R. D., Mr C. L. R. ...
- ... Eurocontrol) on
21 August 2019, Eurocontrol's reply of 18 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
Considering the applications to intervene filed by Mr G. A., Mr E.
C., Mr R. D., Mr C. L. R. and Mr A. V. d. S. R. on 7 September 2021
and Eurocontrol's comments thereon dated 15 October 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C.
v.
Eurocontrol
136th Session Judgment No. 4700
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. C.
against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 August 2019, Eurocontrol's reply of 18 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
Considering the applications to intervene filed by Mr G. A., Mr E.
C., Mr R. D., Mr C. L. R. and Mr A. V. d. S. R. on 7 September 2021
and Eurocontrol's comments thereon dated 15 October 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C.
v.
Eurocontrol
136th Session Judgment No. 4700
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr M. C.
against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 August 2019, Eurocontrol's reply of 18 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
Considering the applications to intervene filed by Mr G. A., Mr E.
C., Mr R. D., Mr C. L. R. and Mr A. V. d. S. R. on 7 September 2021
and Eurocontrol's comments thereon dated 15 October 2021;
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 ...
- ...
T
RIBUNAL
,
Considering the complaint filed by Mr M. C.
against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
21 August 2019, Eurocontrol's reply of 18 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
Considering the applications to intervene filed by Mr G. A., Mr E.
C., Mr R. D., Mr C. L. R. and Mr A. V. d. S. R. on 7 September 2021
and Eurocontrol's comments thereon dated 15 October 2021;
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 measures reorganising his working
time.
On 15 October 2010, the complainant joined the Eurocontrol
Agency, the secretariat of the ...
- ... R. on 7 September 2021
and Eurocontrol's comments thereon dated 15 October 2021;
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 measures reorganising his working
time.
On 15 October 2010, the complainant joined the Eurocontrol
Agency, the secretariat of the Organisation, as a technician in the
Systems Operations (CSO) team within the Network Management
Directorate (DNM). In the CSO team, officials work on rolling shifts in
teams in order to ensure continuity of service. Following the reorganisation
of the DNM in 2012, a project to revise the particular schedules
Judgment No. 4700
2
applicable to the CSO team was set up. A new shift pattern was
subsequently trialled ...
- ... No. 4700
2
applicable to the CSO team was set up. A new shift pattern was
subsequently trialled in 2017.
By decision of 1 November 2017, the Director General delegated
to the Director of DNM "powers and/or authority" to sign on matters
concerning the support services from other Agency units, DNM budget
process, DNM operational staff social dialogue technical meetings, and
operational and technical agreements which are necessary for the
performance by Eurocontrol of the network functions.
By internal memorandum of 13 March 2018, the Director of DNM
submitted a proposed new roster pattern for staff in the CSO team to the
Director General. By an internal memorandum of the same date, the
Head of the Human Resources and Services Unit sent the new pattern
to the President of the Central Staff Committee for consultation
purposes. She asked him to submit his observations within 14 days.
Between 13 March and 28 March, several exchanges ...
- ... and staff representatives, who expressed their
dissatisfaction with the handling of the social dialogue process in
connection with the proposed new roster pattern and requested that the
consultation process be continued in order to address in greater detail
what were, in their view, problems arising from the proposal. By
internal memorandum of 28 March 2018, the Director General
approved the new roster pattern.
In a letter of 5 April 2018, the President of the Eurocontrol section
of the European Civil Service Federation (FFPE), one of the Agency's
trade union organisations, asserted that the rules on consultation had
been breached and that the change in working conditions of the officials
affected by the new pattern was unlawful.
On 16 April 2018, the complainant lodged an internal complaint in
which he asked, in particular, for the rosters published since 16 April
2018 to be annulled and the delegating decision of 1 November 2017 to
be ...
- ...
Furthermore, she considered that, overall, the claims made by the
complainant were no longer relevant, since, in her view, the new roster
for October 2018 complied with the Staff Regulations and the relevant
rule of application. She noted in addition that she shared the opinion of
one member of the Committee which found that the reduction from
three to two officials per team did not breach the Memorandum of
Understanding between the trade union organisations and Eurocontrol,
and the opinion of those members of the Committee who took the view
that there had been no breach of the applicable rules concerning
minimum rest time. That is the impugned decision.
The complainant asks the Tribunal to set aside the final decision of
6 June 2019 together with the Director General's decision of 1 November
2017 delegating power to the Director of DNM. He asks the Tribunal
to declare that his working conditions were changed unlawfully and that
the ...
- ... also asks the Tribunal to declare that EU Directive 2003/88
of 4 November 2003 concerning certain aspects of the organisation of
working time applies to officials of the Agency and that stand-by duty
counts as working time. He also seeks 50,000 euros in moral damages
for the moral injury he considers he has suffered and compensation of
8,000 euros for the delay in dealing with his internal complaint. Lastly,
the complainant seeks 7,000 euros in costs.
Eurocontrol asks the Tribunal to reject the complainant's claims as
partly irreceivable and to dismiss the complaint in its entirety as
unfounded.
CONSIDERATIONS
1.
The complainant seeks the setting aside of the decision of
6 June 2019 of the Head of the Human Resources and Services Unit of
the Eurocontrol Agency, acting by delegation of power from the
Director General, which dismissed his internal complaint of 16 April
Judgment No. 4700
4
2018. ...
- ... he has suffered and compensation of
8,000 euros for the delay in dealing with his internal complaint. Lastly,
the complainant seeks 7,000 euros in costs.
Eurocontrol asks the Tribunal to reject the complainant's claims as
partly irreceivable and to dismiss the complaint in its entirety as
unfounded.
CONSIDERATIONS
1.
The complainant seeks the setting aside of the decision of
6 June 2019 of the Head of the Human Resources and Services Unit of
the Eurocontrol Agency, acting by delegation of power from the
Director General, which dismissed his internal complaint of 16 April
Judgment No. 4700
4
2018. That internal complaint concerned the changes to the complainant's
working conditions which were embodied in the new roster patterns
published following an internal memorandum of 13 March 2018 from
the Head of the Human Resources and Services Unit which notified the
President of the Central Staff Committee ...
- ...
for the delay in dealing with their internal complain
ts will
also be awarded to each of the interveners
.
9.
Since the complainant succeeds in part, he is entitled to costs,
which the
Tribunal
sets at
4
,
000
euros.
Judgment No. 4700
9
DECISION
For the above reasons,
1.
The decision of 6 June 2019 of the Head of the Human Resources
and Services Unit of the Eurocontrol Agency is set aside.
2.
Eurocontrol shall pay the complainant damages in the total amount
of 2,000 euros.
3.
It shall also pay the complainant 4,000 euros in costs.
4.
All other claims are dismissed.
5.
Eurocontrol shall pay damages in the total amount of 2,000 euros
to each of the interveners.
In witness of this judgment, adopted on 11 May 2023, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr ...
- ... with their internal complain
ts will
also be awarded to each of the interveners
.
9.
Since the complainant succeeds in part, he is entitled to costs,
which the
Tribunal
sets at
4
,
000
euros.
Judgment No. 4700
9
DECISION
For the above reasons,
1.
The decision of 6 June 2019 of the Head of the Human Resources
and Services Unit of the Eurocontrol Agency is set aside.
2.
Eurocontrol shall pay the complainant damages in the total amount
of 2,000 euros.
3.
It shall also pay the complainant 4,000 euros in costs.
4.
All other claims are dismissed.
5.
Eurocontrol shall pay damages in the total amount of 2,000 euros
to each of the interveners.
In witness of this judgment, adopted on 11 May 2023, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr Clément Gascon, Judge, sign below, as do I, Dražen ...
- ... at
4
,
000
euros.
Judgment No. 4700
9
DECISION
For the above reasons,
1.
The decision of 6 June 2019 of the Head of the Human Resources
and Services Unit of the Eurocontrol Agency is set aside.
2.
Eurocontrol shall pay the complainant damages in the total amount
of 2,000 euros.
3.
It shall also pay the complainant 4,000 euros in costs.
4.
All other claims are dismissed.
5.
Eurocontrol shall pay damages in the total amount of 2,000 euros
to each of the interveners.
In witness of this judgment, adopted on 11 May 2023, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr Clément Gascon, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered on 7 July 2023 by video recording posted on the
Tribunal's Internet page.
(Signed)
P
ATRICK
F
RYDMAN
J
ACQUES
J
AUMOTTE
C
LÉMENT
G
ASCON
D
RAŽEN ...
- Judgment 4699
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions that found that his injuries had consolidated without permanent invalidity.
- ... Eurocontrol
136th Session Judgment No. 4699
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr M. C.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 23 October 2019, Eurocontrol's reply of 5 February 2020, the
complainant's rejoinder of 11 March 2020 and Eurocontrol's
surrejoinder of 17 June 2020;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having ...
- ... Eurocontrol)
on 23 October 2019, Eurocontrol's reply of 5 February 2020, the
complainant's rejoinder of 11 March 2020 and Eurocontrol's
surrejoinder of 17 June 2020;
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 decisions that found ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C. (No. 4)
v.
Eurocontrol
136th Session Judgment No. 4699
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr M. C.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 23 October 2019, Eurocontrol's reply of 5 February 2020, the
complainant's rejoinder of 11 March 2020 and Eurocontrol's
surrejoinder of 17 June 2020;
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 decisions that found that his injuries
had consolidated ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
C. (No. 4)
v.
Eurocontrol
136th Session Judgment No. 4699
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr M. C.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 23 October 2019, Eurocontrol's reply of 5 February 2020, the
complainant's rejoinder of 11 March 2020 and Eurocontrol's
surrejoinder of 17 June 2020;
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 decisions that found that his injuries
had consolidated without permanent invalidity.
The complainant has been a Eurocontrol official since ...
- ... 2020 and Eurocontrol's
surrejoinder of 17 June 2020;
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 decisions that found that his injuries
had consolidated without permanent invalidity.
The complainant has been a Eurocontrol official since 1996 at the
Brétigny-sur-Orge (France) site and, at the material time, held the post
of computer scientist. On 12 April 2012, 17 September 2012, 21 February
2015, 7 July 2015 and 12 May 2017, he suffered various accidents at
home, at work and while travelling between the two, which left him
temporarily unable to work and in respect of which he submitted the
requisite accident declaration forms to the Administration. The medical
costs arising from these ...
- ...
Brétigny-sur-Orge (France) site and, at the material time, held the post
of computer scientist. On 12 April 2012, 17 September 2012, 21 February
2015, 7 July 2015 and 12 May 2017, he suffered various accidents at
home, at work and while travelling between the two, which left him
temporarily unable to work and in respect of which he submitted the
requisite accident declaration forms to the Administration. The medical
costs arising from these accidents were covered by Eurocontrol's
Sickness Fund pursuant to Rule of Application No. 10a of the Staff
Judgment No. 4699
2
Regulations relating to insurance against the risk of accident and
occupational disease.
On 26 March 2018, the complainant was asked to attend an expert
medical consultation with Dr C., a doctor appointed by insurance
company A., with which Eurocontrol had taken out a contract to
provide cover for its staff against accident and occupational disease.
The ...
- ... forms to the Administration. The medical
costs arising from these accidents were covered by Eurocontrol's
Sickness Fund pursuant to Rule of Application No. 10a of the Staff
Judgment No. 4699
2
Regulations relating to insurance against the risk of accident and
occupational disease.
On 26 March 2018, the complainant was asked to attend an expert
medical consultation with Dr C., a doctor appointed by insurance
company A., with which Eurocontrol had taken out a contract to
provide cover for its staff against accident and occupational disease.
The consultation was scheduled for 4 May 2018 - and did indeed take
place on that date - and, as was confirmed by the Sickness Fund
Supervisor, was supposed to deal with all five accidents suffered by the
complainant.
In his expert medical reports of 4 May 2018, drawn up on the
same day of the consultation he had carried out, but dealing with the
complainant's first ...
- ... and that the
complainant was not suffering any consequential partial permanent
invalidity. The concept of consolidation of injuries is defined in
Article 19(3) of Rule of Application No. 10a, which reads as follows:
"[t]he consequences of the accident or occupational disease shall be
considered consolidated where they have stabilised or will diminish
only very slowly and in a very limited way".
On 17 May 2018, insurance company C., agent of company A.,
informed Eurocontrol that the complainant's injuries from the accidents
of 12 April and 17 September 2012 had consolidated and that he did not
suffer any permanent invalidity as a result of those two accidents. On
15 June 2018, company A. repeated this in relation to the accident of
21 February 2015.
By two letters of 23 May 2018, the Sickness Fund Supervisor
informed the complainant that the Director General "ha[d] accepted the
opinion" delivered by insurance company C. on 17 May. She also ...
- ...
By a letter of 1 August 2019, the complainant was informed that
the Head of the Human Resources and Services Unit, acting by
delegation of power from the Director General, had endorsed the
findings of the latter two members and that his internal complaint was
therefore dismissed. That is the impugned decision.
The complainant asks the Tribunal to set aside the impugned
decision, together with the earlier "final" decisions of 23 May and
28 June 2018, and to order Eurocontrol to continue to cover his medical
costs arising from the disputed accidents and to have a new expert
medical consultation carried out by a doctor independent of any
insurance company. He also seeks compensation for the moral injury
he alleges he has suffered, which he assesses at 50,000 euros, together
with the sum of 10,000 euros for the excessively long time taken to deal
with his internal complaint, and the award of a global sum of
9,500 euros in costs for the internal ...
- ... and to have a new expert
medical consultation carried out by a doctor independent of any
insurance company. He also seeks compensation for the moral injury
he alleges he has suffered, which he assesses at 50,000 euros, together
with the sum of 10,000 euros for the excessively long time taken to deal
with his internal complaint, and the award of a global sum of
9,500 euros in costs for the internal appeal proceedings and the
proceedings before the Tribunal.
Eurocontrol asserts that the internal complaint of 2 August 2018
and, consequently, the present complaint are irreceivable, as the
complainant has failed to follow the contestation procedure laid down
by Rule of Application No. 10a. It asks the Tribunal to dismiss the
complaint as irreceivable and, subsidiarily, as unfounded.
Judgment No. 4699
5
CONSIDERATIONS
1.
The complainant essentially seeks the setting aside of what he
regards as the three ...
- ... and
21 February 2015. According to him, there was therefore both a breach
of the relevant applicable provisions and a conflict of interest since the
doctor in question was connected with the insurance companies whose
financial interests were at stake.
The Tribunal notes that Dr C. was appointed by insurance
company A. and the Organisation asserts in this regard that it had taken
out a contract with that company, under which the company was to
provide cover for Eurocontrol staff against accident and occupational
disease, which involved, inter alia, the monitoring of all relevant
Judgment No. 4699
9
medical aspects, including the carrying out of expert medical
consultations by doctors appointed by the company. It follows that, for
the purposes of implementing that contract, the Director General can be
considered to have accepted that the doctors appointed by insurance
company A. should be regarded as doctors that ...
- ... by the company. It follows that, for
the purposes of implementing that contract, the Director General can be
considered to have accepted that the doctors appointed by insurance
company A. should be regarded as doctors that he himself had
appointed under the provisions of Rule of Application No. 10a quoted
above.
Furthermore, the Tribunal fails to see how the fact that the doctor
was appointed by the insurance company on the basis of a list
previously approved by Eurocontrol should create a conflict of interest,
since, if the Organisation were to appoint the doctor itself, the same
issue would still arise given that it would then be its own financial
interests that would be directly at stake.
The first ground of illegality relied on by the complainant is,
therefore, unfounded.
6.
In the second place, the complainant maintains that Dr C.
failed in his duties since he took account of only one accident, namely
the one which occurred ...
- ... 1 of the aforementioned Decision
No. DR/II/01 (2017), to sign "documents which fall under the Sickness
Insurance Service and for which the [Principal] Director of Resources
has received delegation of authority to sign according to the [Director
Judgment No. 4699
12
General's] Decision No. XI/14 (2016) of 01.12.2016". Both the "draft"
decisions of 23 May and 28 June 2018 and the decisions of 13 December
2018 constitute documents which fall under Eurocontrol's sickness
insurance scheme.
The assertion that the Sickness Fund Supervisor was subject to a
conflict of interests simply through being the "manager" of the fund is
based on a mere premise, devoid of any prima facie evidence, and there
is nothing in the documents submitted by the parties to suggest that such
was the case here. Furthermore, if such an assertion were to be
followed, it would lead to the conclusion that it was not permissible for
any international organisation ...
- ... on 4 May 2018 and was given the opportunity to
challenge Dr C.'s findings, in particular by asking for the matter to be
referred to the Medical Committee, which he chose not to do. It is also
apparent from various letters sent by the complainant to the Organisation,
even before the decisions of 13 December 2018 were taken, in particular
from his internal complaint of 2 August 2018 and his email of
12 December 2018, that he had the opportunity to put his arguments to
Eurocontrol in due course.
It follows from the foregoing that the various grounds of illegality
relied on by the complainant against the decisions taken by the Sickness
Fund Supervisor are without merit.
9.
In the fourth place, the complainant challenges various
aspects of the manner in which his internal complaint was dealt with,
as follows: (1) the way in which the Administration acknowledged
receipt of his internal complaint, first accepting it but then declaring it
irreceivable, ...
- Judgment 4698
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks reinstatement in a post to which he had been appointed and requests payment of the corresponding function allowance.
- ... Eurocontrol
136th Session Judgment No. 4698
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr L. D. B.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
30 July 2018, Eurocontrol's reply of 7 November 2018, the
complainant's rejoinder of 29 November 2018 and Eurocontrol's
surrejoinder of 6 March 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having ...
- ... Eurocontrol) on
30 July 2018, Eurocontrol's reply of 7 November 2018, the
complainant's rejoinder of 29 November 2018 and Eurocontrol's
surrejoinder of 6 March 2019;
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 seeks reinstatement in a post ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D. B. (No. 3)
v.
Eurocontrol
136th Session Judgment No. 4698
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr L. D. B.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
30 July 2018, Eurocontrol's reply of 7 November 2018, the
complainant's rejoinder of 29 November 2018 and Eurocontrol's
surrejoinder of 6 March 2019;
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 seeks reinstatement in a post to which he had been
appointed ...
- ... translation,
the French text alone
being authoritative.
D. B. (No. 3)
v.
Eurocontrol
136th Session Judgment No. 4698
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr L. D. B.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
30 July 2018, Eurocontrol's reply of 7 November 2018, the
complainant's rejoinder of 29 November 2018 and Eurocontrol's
surrejoinder of 6 March 2019;
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 seeks reinstatement in a post to which he had been
appointed and requests payment of the corresponding function allowance.
The complainant joined the Eurocontrol ...
- ...
surrejoinder of 6 March 2019;
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 seeks reinstatement in a post to which he had been
appointed and requests payment of the corresponding function allowance.
The complainant joined the Eurocontrol Agency, the secretariat of the
Organisation, in December 1993. In May 2015, a notice of competition
was published for a post entitled "Senior Technical Supervisor
Exploitation Facilities". The complainant applied for the vacancy and
was informed by email of 3 November 2015 that he had been selected
for the post. By decision of 13 November 2015, the Director General
appointed the complainant to the post of Senior Technical Supervisor in
the Network Management Operational ...
- ... Unit, acting by
delegation of power from the Director General, to appoint him with
effect from 1 July 2017 to the generic post of Deputy Team Leader,
grade FC08, step 1. From 1 July 2017, he therefore stopped receiving
the function allowance associated with the post to which he had initially
been appointed.
On 13 September 2017, the complainant lodged an internal
complaint pursuant to Article 92, paragraph 2, of the Staff Regulations
governing officials of the Eurocontrol Agency. In its opinion dated
22 January 2018, the Joint Committee for Disputes concluded by a
majority of members that the internal complaint was well founded and
recommended that the complainant should remain in the post to which
he had initially been appointed. One of the members concluded instead
that the internal complaint was unfounded because the complainant had
applied for certain duties rather than for a job title. Consequently, that
member considered that the ...
- ... the type of duties carried out by the complainant. That is the
impugned decision.
The complainant asks the Tribunal to set aside the impugned
decision and to reinstate him in the post of Senior Technical Supervisor.
He seeks payment of the whole of the function allowance applicable to
that post, with retroactive effect to July 2017. The complainant claims
moral damages of 25,000 euros for the moral injury he considers he has
suffered and 6,000 euros in costs.
Eurocontrol asks the Tribunal to dismiss the complaint in its
entirety as unfounded.
CONSIDERATIONS
1.
The complainant essentially seeks reinstatement, with
retroactive effect, in the post of Senior Technical Supervisor to which
he had been appointed and requests payment of the corresponding
function allowance which has been denied to him since July 2017.
2.
The complainant submits first of all that the impugned
decision was unlawful in that authority had not been ...
- ... the
competition was conducted, and his appointment made, according to
the rules. On this basis he considers, in the first place, that it was
unlawful to subsequently withdraw his function allowance as there can
be no question of any error appearing "solely in the job title that was
published".
The complainant also submits that, even if there had been an error,
the fact that he succeeded in the competition and was appointed
nonetheless confers on him rights that Eurocontrol cannot, on that basis
alone, withdraw, withhold, vary or reduce. To take the contrary view
would amount, in his opinion, to accepting that the Organisation may
exercise its power arbitrarily, the effect of which would be to undermine
legal certainty.
The Organisation maintains that the complainant's initial appointment
was the result of a manifest error. In the Organisation's view, it is clear
that both the job description and the reference "NM-2015-FCO/024"
that ...
- ...
the Organisation notes that the complainant is essentially challenging
the withdrawal of the allowance associated with the role of Senior
Technical Supervisor and points out that, although he had therefore
never been entitled to that allowance, it did not attempt to recover the
overpayment but simply decided to withhold payment of the allowance
in the future. Therefore, it considers that the impugned decision is not
unlawful, as it merely responded to the need for Eurocontrol to
regularise the complainant's administrative and financial situation in
light of the duties and tasks involved in the post to which he had been
appointed following the contested competition.
Judgment No. 4698
5
4.
Even though the complainant's pleas are essentially based
around what he considers to be the unlawful withdrawal of the function
allowance, it is nonetheless obvious that in reality he is relying as much
on the unlawfulness ...
- ... function
allowance automatically linked to his appointment to the role of Senior
Technical Supervisor, and that the impugned decision therefore has a
dual object. This is also reflected in the complainant's claim to be
reinstated in his post. The pleas relied on by the complainant must
therefore be regarded as seeking to establish the unlawfulness of the
impugned decision in terms of both objects.
5.
Regardless of whether or not an error was committed by
Eurocontrol in organising the contested competition, and whether or not
any such error was manifest, the question that really needs to be
answered in the present case is whether the Administration was lawfully
able, firstly, to appoint the complainant with effect from 1 July 2017 to
the "generic role of Deputy Team Leader, grade FCO8 step 1, within
grade bracket FC05-FC010, in the Network Management Directorate
(DNM)/Group E1", thereby overturning his earlier appointment as a
Senior ...
- ... In the circumstances,
it is not appropriate to award him compensation under this head (see, for
example, Judgments 4469, consideration 16, 4401, consideration 10,
and 4396, consideration 12).
13.
As the complainant succeeds to a great extent, he will be
awarded the sum of 6,000 euros which he claims in costs.
DECISION
For the above reasons,
1.
The impugned decision of 8 May 2018 is set aside, as is the
decision of 12 June 2017.
2.
Eurocontrol shall pay the complainant, with retroactive effect to
July 2017, the function allowance provided for in paragraph 1 of
Article 69b of the Staff Regulations.
3.
Eurocontrol shall pay the complainant moral damages in the amount
of 3,000 euros.
4.
It shall also pay him 6,000 euros in costs.
5.
All other claims are dismissed.
Judgment No. 4698
9
In witness of this judgment, adopted on 25 April 2023, Mr Patrick
Frydman, ...
- ... 12).
13.
As the complainant succeeds to a great extent, he will be
awarded the sum of 6,000 euros which he claims in costs.
DECISION
For the above reasons,
1.
The impugned decision of 8 May 2018 is set aside, as is the
decision of 12 June 2017.
2.
Eurocontrol shall pay the complainant, with retroactive effect to
July 2017, the function allowance provided for in paragraph 1 of
Article 69b of the Staff Regulations.
3.
Eurocontrol shall pay the complainant moral damages in the amount
of 3,000 euros.
4.
It shall also pay him 6,000 euros in costs.
5.
All other claims are dismissed.
Judgment No. 4698
9
In witness of this judgment, adopted on 25 April 2023, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr Clément Gascon, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered on 7 July 2023 by video recording ...
- Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
- ... Eurocontrol
136th Session Judgment No. 4697
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 December 2020 and corrected on 11 and 18 February 2021,
Eurocontrol's reply of 28 May 2021, the complainant's rejoinder of
19 July 2021, Eurocontrol's surrejoinder of 18 October 2021, the
complainant's further submissions of 5 January 2022 ...
- ... Eurocontrol)
on 17 December 2020 and corrected on 11 and 18 February 2021,
Eurocontrol's reply of 28 May 2021, the complainant's rejoinder of
19 July 2021, Eurocontrol's surrejoinder of 18 October 2021, the
complainant's further submissions of 5 January 2022 and Eurocontrol's
final comments thereon of 7 February 2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case ...
- ...
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
A. (No. 6)
v.
Eurocontrol
136th Session Judgment No. 4697
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 December 2020 and corrected on 11 and 18 February 2021,
Eurocontrol's reply of 28 May 2021, the complainant's rejoinder of
19 July 2021, Eurocontrol's surrejoinder of 18 October 2021, the
complainant's further submissions of 5 January 2022 and Eurocontrol's
final comments thereon of 7 February 2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the Director General's ...
- ...
the French text alone
being authoritative.
A. (No. 6)
v.
Eurocontrol
136th Session Judgment No. 4697
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 December 2020 and corrected on 11 and 18 February 2021,
Eurocontrol's reply of 28 May 2021, the complainant's rejoinder of
19 July 2021, Eurocontrol's surrejoinder of 18 October 2021, the
complainant's further submissions of 5 January 2022 and Eurocontrol's
final comments thereon of 7 February 2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the Director General's decision to
impose on him the disciplinary sanction of downgrading.
Some of ...
- ... Session Judgment No. 4697
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 December 2020 and corrected on 11 and 18 February 2021,
Eurocontrol's reply of 28 May 2021, the complainant's rejoinder of
19 July 2021, Eurocontrol's surrejoinder of 18 October 2021, the
complainant's further submissions of 5 January 2022 and Eurocontrol's
final comments thereon of 7 February 2022;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the Director General's decision to
impose on him the disciplinary sanction of downgrading.
Some of the facts relevant to this case are to be found in
Judgments 4694 and 4695, also delivered in public this ...
- ... Following an opinion from the
Invalidity Committee on 9 February 2017 which declared the complainant
fit for work and several medical examinations he underwent between 2017
Judgment No. 4697
2
and 2019 which concluded that he was fit for work, the Administration
decided that it would no longer accept medical certificates submitted by
the complainant. By letter of 27 February 2019, the Head of the Human
Resources and Services Unit of the Eurocontrol Agency, the secretariat of
the Organisation, informed the complainant that no medical certificate
submitted thereafter would be accepted and that any further absence
would be considered as unjustified, leading to a deduction from his
annual leave entitlement and then from his salary. By a subsequent
letter of 5 July 2019 in which she asked the complainant to resume work
without further delay, she indicated that she was going to inform the
Director General of the situation ...
- ... internal complaint of 29 May 2020. In his further submissions, he
seeks the setting aside of the express decision of 12 October 2021 which
was taken while proceedings before the Tribunal were ongoing. The
complainant asks that the Organisation be ordered to reimburse him for
all amounts withheld from his pension pursuant to those decisions. He
further seeks compensation of 50,000 euros for the moral injury he
considers he has suffered, and an award of costs.
Eurocontrol asks the Tribunal to reject some of the complainant's
claims as irreceivable and to dismiss the complaint in its entirety as
unfounded.
CONSIDERATIONS
1.
In his sixth complaint, the complainant seeks the setting aside
of the implied decision rejecting his internal complaint of 29 May 2020
by which he challenged the decision of the Director General of
Eurocontrol of 27 March 2020 imposing on him the disciplinary
sanction of downgrading by two grades with effect ...
- ... 50,000 euros for the moral injury he
considers he has suffered, and an award of costs.
Eurocontrol asks the Tribunal to reject some of the complainant's
claims as irreceivable and to dismiss the complaint in its entirety as
unfounded.
CONSIDERATIONS
1.
In his sixth complaint, the complainant seeks the setting aside
of the implied decision rejecting his internal complaint of 29 May 2020
by which he challenged the decision of the Director General of
Eurocontrol of 27 March 2020 imposing on him the disciplinary
sanction of downgrading by two grades with effect from 1 April 2020.
The Tribunal notes that, pursuant to the last sentence of
Article 92(2) of the Staff Regulations, an implied decision rejecting the
complainant's internal complaint, challengeable before the Tribunal,
arose on the expiry of four months from the date on which that internal
complaint was lodged, namely on 29 September 2020. Therefore, on
17 December 2020, ...
- ... also asks that this complaint be joined to his
fourth complaint in which he seeks the setting aside of the decision
concluding that some of his absences were unjustified, since he
considers that the two complaints rest on the same facts. The
Organisation opposes this. Given that the two complaints involve
different impugned decisions, different opinions of the Joint Committee
for Disputes, and provisions of the Staff Regulations governing officials
of the Eurocontrol Agency which are not entirely the same, the Tribunal
considers it appropriate to deal with the two cases separately and to
render a separate judgment for each of them. Accordingly, the
complaints will not be joined.
5.
The contested decision of 27 March 2020 and the impugned
decision of the Director General of 12 October 2021 have in common
the fact that they both departed from a unanimous opinion, of the five
members of the Disciplinary Board for the first and ...
- ... General and to the official concerned (second paragraph of
Article 13). Lastly, once the Board's opinion has been received,
Article 17 expressly provides that the official must be heard before the
Director General takes a decision "as provided for in Articles 4 and 5",
referred to above, in other words, the provisions dealing with the
penalties that may be envisaged.
14.
The Tribunal considers that it is clear from these provisions,
which are peculiar to Eurocontrol's Staff Regulations, that officials of
the Organisation are entitled to a due process which affords them the
opportunity to be fully heard in connection with the misconduct of
which they are accused and to a genuine opportunity to express
themselves on the "penalty envisaged" in terms both of its content and
of its proportionality to the facts complained of.
In the present case, bearing in mind that the Director General had
the ability to apply a large range of disciplinary ...
- ... accident. The same
incongruities were noted by the members of the Joint Committee in
relation to the procedure under Article 59(5).
The argument put forward by the Director General is all the more
astonishing that the Organisation was perfectly aware at the time of the
shortcomings in its regulations in terms of the mechanism under
Article 59(5) and the appeals that might be filed as a result. In a
revealing exchange of emails on 9 and 10 October 2017, three of
Eurocontrol's senior managers - the Organisation's Medical Adviser
(Dr V.), the Head of the Human Resources and Services Unit and the
Head of Compensation and Benefits - effectively acknowledged that,
in the absence of a specific rule on the matter, it could be difficult to
justify the policy followed by the Administration, that there were no
rules applicable to the situation where an official refuses to return to
work after an Invalidity Committee has issued an opinion concluding
that ...
- ... circumstances of
the case.
The Tribunal considers that all of the moral injury suffered may
be fairly redressed by awarding the complainant compensation of
25,000 euros.
27.
The complainant is entitled to costs, which the Tribunal sets
at 8,000 euros.
Judgment No. 4697
26
DECISION
For the above reasons,
1.
The decision of the Director General of 12 October 2021 and that
of 27 March 2020 are set aside.
2.
Eurocontrol shall reimburse the complainant for all the sums withheld
from his pension since 1 April 2020 pursuant to those decisions, on
the terms set out in consideration 25, above.
3.
The Organisation shall also pay the complainant moral damages in
the amount of 25,000 euros.
4.
It shall also pay him costs in the amount of 8,000 euros.
5.
All other claims are dismissed.
In witness of this judgment, adopted on 11 May 2023, Mr Patrick
Frydman, Vice-President ...
- Judgment 4696
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to recover supposed overpayments made to him by way of expatriation allowance.
- ... Eurocontrol
136th Session Judgment No. 4696
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 16 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 4 March 2021 and Eurocontrol's
surrejoinder of 4 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having ...
- ... Eurocontrol)
on 16 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 4 March 2021 and Eurocontrol's
surrejoinder of 4 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to recover supposed
overpayments made to him by way of expatriation allowance.
The ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
A. (No. 5)
v.
Eurocontrol
136th Session Judgment No. 4696
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 16 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 4 March 2021 and Eurocontrol's
surrejoinder of 4 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to recover supposed
overpayments made to him by way of expatriation allowance.
The complainant, a Greek national, was ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
A. (No. 5)
v.
Eurocontrol
136th Session Judgment No. 4696
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 16 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 4 March 2021 and Eurocontrol's
surrejoinder of 4 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to recover supposed
overpayments made to him by way of expatriation allowance.
The complainant, a Greek national, was born in Mons (Belgium)
on 30 December 1963. He entered the service of Eurocontrol on
16 ...
- ... and Eurocontrol's
surrejoinder of 4 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to recover supposed
overpayments made to him by way of expatriation allowance.
The complainant, a Greek national, was born in Mons (Belgium)
on 30 December 1963. He entered the service of Eurocontrol on
16 September 1991, when he joined the Institute of Air Navigation
Services in Luxembourg. As he was a Belgian resident at the time of
his recruitment, he received an expatriation allowance of 16 per cent of
the amount of his basic salary on account of his assignment to
Luxembourg. On 16 September 1993, the complainant was assigned to
Eurocontrol's Headquarters in Brussels (Belgium) and continued to
receive the expatriation allowance continuously until he retired. On ...
- ...
The complainant, a Greek national, was born in Mons (Belgium)
on 30 December 1963. He entered the service of Eurocontrol on
16 September 1991, when he joined the Institute of Air Navigation
Services in Luxembourg. As he was a Belgian resident at the time of
his recruitment, he received an expatriation allowance of 16 per cent of
the amount of his basic salary on account of his assignment to
Luxembourg. On 16 September 1993, the complainant was assigned to
Eurocontrol's Headquarters in Brussels (Belgium) and continued to
receive the expatriation allowance continuously until he retired. On
18 July 2019, the complainant asked the Pensions Service for a
Judgment No. 4696
2
simulation of net pension guaranteed to within 1 per cent, amounting to
5,212.35 euros per month. On 30 July 2019, the complainant asked to
retire and to draw his retirement pension with effect from 31 July 2019.
By internal memorandum of 31 July ...
- ... of the
Director General's decision to approve this request with effect from
1 August 2019.
By letter of 13 September 2019, the complainant was informed that
an inspection of his file when he retired had revealed that he had been
incorrectly receiving the expatriation allowance since his transfer to
Brussels, whereas he was only eligible for the 4 per cent foreign residence
allowance as a Greek national who had been resident in Belgium before
his recruitment at Eurocontrol. The Administration therefore needed to
recover the overpayments made during the past five years - that is from
1 October 2014 onwards - pursuant to Article 87 of the Staff Regulations
governing officials of the Eurocontrol Agency. By letter of 19 September
2019, the complainant challenged the recovery of the sums claimed.
By letter of 26 November 2019, the Head of the Human Resources
and Services Unit confirmed the Organisation's position with regard to
the recovery ...
- ... had been
incorrectly receiving the expatriation allowance since his transfer to
Brussels, whereas he was only eligible for the 4 per cent foreign residence
allowance as a Greek national who had been resident in Belgium before
his recruitment at Eurocontrol. The Administration therefore needed to
recover the overpayments made during the past five years - that is from
1 October 2014 onwards - pursuant to Article 87 of the Staff Regulations
governing officials of the Eurocontrol Agency. By letter of 19 September
2019, the complainant challenged the recovery of the sums claimed.
By letter of 26 November 2019, the Head of the Human Resources
and Services Unit confirmed the Organisation's position with regard to
the recovery of the amount corresponding to the difference between the
expatriation allowance and the foreign residence allowance received
since 1 October 2014. The overpayment amounted to 64,243.54 euros.
In addition, she stated that she ...
- ... was unfounded, rejected the latter. That is the impugned
decision.
The complainant asks the Tribunal to set aside the decision of
7 December 2020 and to order the Organisation to reimburse all the
sums retained from his pension pursuant to that decision, insofar as the
expatriation allowance is regarded as having been unduly received. In
addition, he seeks damages of 20,000 euros for the moral injury he
considers he has suffered and the award of costs.
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims as unfounded.
CONSIDERATIONS
1.
In his complaint, the complainant seeks the setting aside of
the implied rejection of his internal complaint of 18 February 2020
against the decision of 26 November 2019 of the Head of the Human
Judgment No. 4696
4
Resources and Services Unit of the Eurocontrol Agency to recover, for
the maximum period of five years from 1 October 2014, the overpayments ...
- ... euros for the moral injury he
considers he has suffered and the award of costs.
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims as unfounded.
CONSIDERATIONS
1.
In his complaint, the complainant seeks the setting aside of
the implied rejection of his internal complaint of 18 February 2020
against the decision of 26 November 2019 of the Head of the Human
Judgment No. 4696
4
Resources and Services Unit of the Eurocontrol Agency to recover, for
the maximum period of five years from 1 October 2014, the overpayments
made to him as a result of his receiving the 16 per cent expatriation
allowance instead of the 4 per cent foreign residence allowance from
the time of his transfer to Brussels (Belgium) on 16 September 1993
onwards.
2.
Eurocontrol submits that the complaint is irreceivable on the
grounds that the complainant did not comply with the requirements
under Article VII, paragraph ...
- ... the decision of 26 November 2019 of the Head of the Human
Judgment No. 4696
4
Resources and Services Unit of the Eurocontrol Agency to recover, for
the maximum period of five years from 1 October 2014, the overpayments
made to him as a result of his receiving the 16 per cent expatriation
allowance instead of the 4 per cent foreign residence allowance from
the time of his transfer to Brussels (Belgium) on 16 September 1993
onwards.
2.
Eurocontrol submits that the complaint is irreceivable on the
grounds that the complainant did not comply with the requirements
under Article VII, paragraph 1, of the Statute of the Tribunal to exhaust
the internal means of redress available to him as a former official of the
Organisation. However, the Tribunal notes that, pursuant to the last
sentence of Article 92(2) of the Staff Regulations, an implied decision
rejecting the complainant's internal complaint, challengeable before the ...
- ... also requests an oral hearing. However, the
Tribunal considers that the parties have presented sufficiently extensive
and detailed submissions and documents to allow it to be properly
Judgment No. 4696
5
informed of their arguments and the relevant evidence. The request for
an oral hearing is therefore dismissed.
5.
The expatriation allowance which the complainant continued
to receive after he was assigned on 16 September 1993 to Eurocontrol's
Headquarters in Belgium, his country of residence at the time he was
recruited, is governed by Article 68 of the Staff Regulations governing
officials of the Eurocontrol Agency, which provides as follows:
"Article 68
The expatriation allowance shall be equal to 16% of the total of the basic
salary, household allowance and dependent child allowance to which the
official is entitled. The expatriation allowance shall be not less than
EUR 574.13 per month.
[...]" ...
- ... be properly
Judgment No. 4696
5
informed of their arguments and the relevant evidence. The request for
an oral hearing is therefore dismissed.
5.
The expatriation allowance which the complainant continued
to receive after he was assigned on 16 September 1993 to Eurocontrol's
Headquarters in Belgium, his country of residence at the time he was
recruited, is governed by Article 68 of the Staff Regulations governing
officials of the Eurocontrol Agency, which provides as follows:
"Article 68
The expatriation allowance shall be equal to 16% of the total of the basic
salary, household allowance and dependent child allowance to which the
official is entitled. The expatriation allowance shall be not less than
EUR 574.13 per month.
[...]"
Rule of Application No. 7 of the Staff Regulations concerning
remuneration stipulates in particular the following in its Article 4 in
relation to the expatriation allowance: ...
- ... would not have escaped the attention of a normally diligent
recipient, such a recipient being deemed to be aware of the rules governing
his/her administrative status.
[...]
3.3 Blatant fraud
Where the amount unduly paid is the result of blatant fraud, percentages in
excess of those referred to in paragraph 3.1 above may if necessary be
applied.
[...]"
Judgment No. 4696
7
7.
In the first place, the complainant submits that Eurocontrol
committed an error of law in its interpretation of Article 87 of the Staff
Regulations since the mistake made in granting the expatriation
allowance was entirely attributable to the Administration, that he acted
in good faith at all times and that, bearing in mind that the renewal of
the expatriation allowance occurred on his transfer to Brussels in 1993,
the Administration was time-barred from taking action.
8.
In Judgment 4469, consideration 4, the Tribunal has ...
- ... of Article 87 of the Staff
Regulations since the mistake made in granting the expatriation
allowance was entirely attributable to the Administration, that he acted
in good faith at all times and that, bearing in mind that the renewal of
the expatriation allowance occurred on his transfer to Brussels in 1993,
the Administration was time-barred from taking action.
8.
In Judgment 4469, consideration 4, the Tribunal has already
stated that Article 87 of Eurocontrol's Staff Regulations constitutes an
exception to the general principle of law that any sum paid in error may
normally be recovered subject to the rules on time limits. Where a
Eurocontrol staff member receives an undue payment, the Tribunal
recalled in that judgment that recovery is only possible if one of the two
conditions specified in Article 87 is met, namely that the official
concerned was aware that there was no due reason for the payment or
if the overpayment was ...
- ... at all times and that, bearing in mind that the renewal of
the expatriation allowance occurred on his transfer to Brussels in 1993,
the Administration was time-barred from taking action.
8.
In Judgment 4469, consideration 4, the Tribunal has already
stated that Article 87 of Eurocontrol's Staff Regulations constitutes an
exception to the general principle of law that any sum paid in error may
normally be recovered subject to the rules on time limits. Where a
Eurocontrol staff member receives an undue payment, the Tribunal
recalled in that judgment that recovery is only possible if one of the two
conditions specified in Article 87 is met, namely that the official
concerned was aware that there was no due reason for the payment or
if the overpayment was patently obvious.
9.
With regard to this second condition, which is the only one
relevant to the present case, in the aforementioned Judgment 4469, this
time in consideration 6, ...
- ... allowance was easily discernible as it appeared on each of
the complainant's payslips, month after month. The Tribunal considers
that, in the circumstances, the Organisation was entitled to conclude
that the fact that there was no due reason for this payment was
sufficiently obvious that it could not have reasonably escaped the notice
of an official exercising ordinary diligence in the management of his
personal affairs.
11.
Furthermore, given that Eurocontrol does not submit that the
complainant deliberately defrauded the Organisation in order to continue
to receive the expatriation allowance unlawfully, the complainant's
assertion that he acted in good faith is irrelevant. The existence of an
error is at the very source of the principle of law concerning the
recovery of undue payments and, in this case, either the error must have
been known to the complainant since he could not have been unaware
of the Organisation's rules ...
- ... on whether
the conditions which initially led to the grant of the allowance continue
to exist.
13.
Turning to the five-year period settled on by the Administration
for the purposes of recovering the expatriation allowance overpaid to the
complainant, the Tribunal has already recalled, in the aforementioned
Judgment 4166, consideration 5, that, for each payment, the limitation
period begins to run from the date on which that payment was made.
Accordingly, Eurocontrol was entitled, under Article 87 of the Staff
Regulations, to apply its request for recovery to each undue payment
within five years of the date when that particular payment had been
made, thereby covering the whole of the period referred to in the
complainant's internal complaint.
14.
The complainant's argument that Eurocontrol committed an
error of law in its interpretation and application of Article 87 is therefore
unfounded.
15.
In the second place, ...
- ... 5, that, for each payment, the limitation
period begins to run from the date on which that payment was made.
Accordingly, Eurocontrol was entitled, under Article 87 of the Staff
Regulations, to apply its request for recovery to each undue payment
within five years of the date when that particular payment had been
made, thereby covering the whole of the period referred to in the
complainant's internal complaint.
14.
The complainant's argument that Eurocontrol committed an
error of law in its interpretation and application of Article 87 is therefore
unfounded.
15.
In the second place, the complainant claims that the request
for recovery of undue payments was disproportionate and that there was
a "breach [of his] legitimate expectations" in this regard. According to
the complainant, it was unfair and inequitable to require him to
reimburse a sum of 64,243.54 euros.
It is true that the Tribunal has already stated that, ...
- ... is true that the Tribunal has already stated that, according to its
case law, "an organization's right to recover an overpayment must be
partially - or fully - denied if the circumstances of the case show that
the reimbursement sought would be unfair or inequitable for the staff
member concerned" (see Judgment 4139, consideration 14). However,
since the submissions show that the complainant's remuneration was in
fact too high for more than twenty-six years, and since Eurocontrol can
only recover a fraction of the sums in question, limited to five out of those
twenty-six years, and has chosen to recover them through a monthly
retention from the pension payments it makes to the complainant, the
Tribunal considers that the reimbursement decided on by the Organisation
is not unfair or inequitable towards the complainant.
This further claim of the complainant's is also unfounded.
Judgment No. 4696
10
16.
In the third ...
- ... the complainant.
This further argument is also unfounded.
17.
In the last place, the complainant claims that he was a victim
of a misuse of authority on the part of the Organisation since the
purpose of the decision of 26 November 2019 and, consequently, of the
decision of 7 December 2020 was not just to recover the contested sums
as such but also to cause him harm. As evidence of this intention to harm
him, he points to the other actions taken against him by Eurocontrol,
which are the subject of Judgments 4695 and 4697, also delivered in
public this day.
However the Tribunal recalls that, according to its case law, misuse
of authority may not be presumed. The burden of proof is on the official
who pleads it, here being the complainant (see Judgments 4552,
consideration 9, and 4437, consideration 23). The Tribunal considers
that no misuse of authority has been established, especially given that,
in seeking to recover the contested ...
- Judgment 4695
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision requiring him to reimburse the undue payments of salary he received during absences that were declared to be unjustified by the Administration.
- ... Eurocontrol
136th Session Judgment No. 4695
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr G. A. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 15 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 3 March 2021 and Eurocontrol's
surrejoinder of 11 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol)
on 15 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 3 March 2021 and Eurocontrol's
surrejoinder of 11 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision requiring him to reimburse
the undue payments of salary he received during absences ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
A. (No. 4)
v.
Eurocontrol
136th Session Judgment No. 4695
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr G. A. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 15 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 3 March 2021 and Eurocontrol's
surrejoinder of 11 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision requiring him to reimburse
the undue payments of salary he received during absences that were
declared to be unjustified ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
A. (No. 4)
v.
Eurocontrol
136th Session Judgment No. 4695
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fourth complaint filed by Mr G. A. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 15 September 2020, Eurocontrol's reply of 22 January 2021, the
complainant's rejoinder of 3 March 2021 and Eurocontrol's
surrejoinder of 11 June 2021;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision requiring him to reimburse
the undue payments of salary he received during absences that were
declared to be unjustified by the Administration.
Some of the facts relevant to this case are to be found in
Judgment ...
- ... from his
annual leave entitlements. In addition, the complainant was informed
that, as a final resort, Dr M. would arrange for a psychiatric examination
to be carried out by Professor D.
From 6 March 2019 onwards, various exchanges took place between
the Administration and the complainant's counsel, in which the latter
raised procedural irregularities, and in particular a failure to comply
with Article 59 of the Staff Regulations governing officials of the
Eurocontrol Agency.
On 2 April 2019, the complainant lodged a claim for harassment
against the Agency's Human Resources Department and Medical
Service.
Judgment No. 4695
4
On 7 May 2019, an expert psychiatric examination was carried out
on the complainant by Professor D. who, in his report of 20 May,
concluded that the complainant was fit for work. By a letter of 5 July
2019 received by the complainant on 10 July, the Head of the Human
Resources and ...
- ... while
proceedings before the Tribunal were ongoing. The complainant asks
for the Organisation to be ordered to refund all amounts retained from
his pension since September 2019 as a result of that express decision
which declared his absences to be unjustified for the period from
Judgment No. 4695
6
20 May to 31 July 2019. He further seeks compensation of 20,000 euros
for the moral injury he considers he has suffered, and the award of costs.
Eurocontrol asks the Tribunal to reject all of the complainant's
claims as irreceivable and to dismiss the complaint in its entirety as
unfounded.
CONSIDERATIONS
1.
In his fourth complaint, the complainant seeks the setting
aside of the implied decision rejecting the internal complaint he lodged
on 17 February 2020 against the decision of 26 November 2019 of the
Head of the Human Resources and Services Unit of the Eurocontrol
Agency, which informed him that, from the date ...
- ... he has suffered, and the award of costs.
Eurocontrol asks the Tribunal to reject all of the complainant's
claims as irreceivable and to dismiss the complaint in its entirety as
unfounded.
CONSIDERATIONS
1.
In his fourth complaint, the complainant seeks the setting
aside of the implied decision rejecting the internal complaint he lodged
on 17 February 2020 against the decision of 26 November 2019 of the
Head of the Human Resources and Services Unit of the Eurocontrol
Agency, which informed him that, from the date of Professor D.'s
medical report of 20 May 2019, the Organisation would no longer
accept medical certificates from him and would suspend the payment
of his salary. Since, between 20 May and 31 July 2019, the complainant
had been paid for days of absence that the Organisation considered
unjustified, the decision also informed him that he was required to
reimburse a sum of 24,687.56 euros corresponding to the salary that had ...
- ... of Professor D.'s
medical report of 20 May 2019, the Organisation would no longer
accept medical certificates from him and would suspend the payment
of his salary. Since, between 20 May and 31 July 2019, the complainant
had been paid for days of absence that the Organisation considered
unjustified, the decision also informed him that he was required to
reimburse a sum of 24,687.56 euros corresponding to the salary that had
thus been unduly paid to him.
2.
Eurocontrol submits that the complaint is irreceivable
because the complainant did not comply with the requirements under
Article VII, paragraph 1, of the Statute of the Tribunal to exhaust the
internal means of redress available to him as a former official of the
Organisation. However, the Tribunal notes that, pursuant to the last
sentence of Article 92(2) of the Staff Regulations, an implied decision
rejecting the complainant's internal complaint, challengeable before the
Tribunal, ...
- ... 2020,
the latter date being when the physician forwarded a copy to the
complainant. In an internal email of 9 December 2019 following receipt
of a request for access made that same day by the complainant's
counsel, the Administration made the following admission before
forwarding the report in question to the treating physician: "we are
obliged to give it considering that it is the basis on which we will deduct
his unjustified absences".
9.
Although Eurocontrol agrees in its submissions that "[t]he
dispute concerns the legitimacy of [...] categorising the complainant's
absences from 20 May 2019 until his retirement on 1 August 2019 as
Judgment No. 4695
10
unjustified absences", the Organisation does not provide any explanation
or response for failing to send the medical report to the complainant
before 20 February 2020. The Tribunal also notes that, despite the fact
that Professor D.'s report of 20 May ...
- ... the
absence shall be treated for all purposes as having been justified.
[...]
5. The Director General may refer to the Invalidity Committee the case of
any official whose sick leave totals more than twelve months in any period
of three years to consider total permanent invalidity subject to the conditions
of Article 78. Such referral shall only be optional and shall not constitute a
right for the official."
13.
These provisions therefore stipulate that a Eurocontrol official
who provides evidence of incapacity to perform her or his duties
because of sickness is automatically entitled to sick leave. The official
may, however, at any time be required to undergo a medical examination
and, if the finding made in that examination is that the official is able to
carry out her or his duties, the absence will be regarded as unjustified,
subject to the official's right to submit to the Director General a request
that the matter be referred ...
- ... which the Head of
Compensation and Benefits wrote to the Medical Adviser, Dr V., and
to the Head of the Human Resources and Services Unit, that the
Organisation could not simply refuse the certificates in such a situation.
The request for a medical examination with Dr M. and subsequently,
on the initiative of Dr M., with Professor D. could therefore only fall
under paragraph 1 of Article 59. It is apparent from the file that there is
no other procedure in place at Eurocontrol that provides for a different
mechanism to apply in such a case. That was also noted by the two
members of the Joint Committee for Disputes who concluded, in the
opinion of 8 July 2020, that the Administration had not followed the
procedure laid down in this respect by Article 59 of the Staff Regulations.
Judgment No. 4695
15
17.
In its submissions, the Organisation attempts in vain to
explain and justify the process it followed, relying ...
- ... face difficulties" (Head of Compensation
and Benefits); and "[y]es indeed the subject deserves a rule" (Head of
the Human Resources and Services Unit).
It is clear from these assertions that the Administration knew that
it was following a procedure which did not exist anywhere in the
Organisation's rules and which it was, therefore, unable to impose on
an official without first informing him of the relevant parameters, where
applicable. The Tribunal considers that Eurocontrol cannot justify its
conduct, as it attempts to do in its submissions, by arguing that what
occurred was ultimately done for the benefit of the complainant since
"a strict application by [the Organisation] would have had harsher
consequences for [him]", which, in any event, has not been established.
18.
Since the Organisation breached its own rules by ignoring
the procedure laid down in Article 59(1) of the Staff Regulations
before concluding that the complainant's ...
- ... 59(1) of the Staff Regulations
before concluding that the complainant's absences due to sickness
during the period concerned were unjustified, this second plea is also
well founded and renders both the impugned decision and the decision
of 26 November 2019 legally flawed.
As a result of the foregoing, both of those decisions must be set
aside, without there being any need to rule on the other pleas entered by
the complainant in his submissions.
It follows that Eurocontrol should be ordered to reimburse to the
complainant, by way of compensation for the material injury caused to
him, the amounts wrongly retained by the Organisation from his
pension in order to repay his remuneration for the period from 20 May
to 31 July 2019, that is the sum of 24,687.56 euros.
19.
The complainant claims that the Organisation should also pay
him moral damages of 20,000 euros for "recklessly calling into question
his good faith in a way likely to ...
- ...
who must establish the injury complained of. In the present case, the
Judgment No. 4695
17
complainant has not adduced any specific evidence of this alleged harm
to his honour and reputation.
This claim must therefore be dismissed as unfounded.
20.
As the complainant succeeds, he is entitled to costs, which the
Tribunal sets at 8,000 euros.
DECISION
For the above reasons,
1.
The decision of the Director General of Eurocontrol of 7 December
2020 and the decision of the Head of the Human Resources and
Services Unit of 26 November 2019 are set aside.
2.
Eurocontrol shall pay the complainant material damages in the
amount of 24,687.56 euros.
3.
It shall also pay him 8,000 euros in costs.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 3 May 2023, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr Clément ...
- ... any specific evidence of this alleged harm
to his honour and reputation.
This claim must therefore be dismissed as unfounded.
20.
As the complainant succeeds, he is entitled to costs, which the
Tribunal sets at 8,000 euros.
DECISION
For the above reasons,
1.
The decision of the Director General of Eurocontrol of 7 December
2020 and the decision of the Head of the Human Resources and
Services Unit of 26 November 2019 are set aside.
2.
Eurocontrol shall pay the complainant material damages in the
amount of 24,687.56 euros.
3.
It shall also pay him 8,000 euros in costs.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 3 May 2023, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr Clément Gascon, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered on 7 July 2023 by video recording posted on the
Tribunal's Internet page. ...
- Judgment 4694
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision confirming his fitness for work and instructing him to resume his duties.
- ... Eurocontrol
136th Session Judgment No. 4694
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 7 February 2019 and corrected on 18 March 2019, Eurocontrol's
reply of 26 June 2019, the complainant's rejoinder of 14 August 2019
and Eurocontrol's surrejoinder of 26 November 2019;
Considering Articles II, paragraph 5, and VII of the Statute ...
- ... Eurocontrol)
on 7 February 2019 and corrected on 18 March 2019, Eurocontrol's
reply of 26 June 2019, the complainant's rejoinder of 14 August 2019
and Eurocontrol's surrejoinder of 26 November 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision confirming his fitness for
work and instructing him ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
A. (No. 3)
v.
Eurocontrol
136th Session Judgment No. 4694
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 7 February 2019 and corrected on 18 March 2019, Eurocontrol's
reply of 26 June 2019, the complainant's rejoinder of 14 August 2019
and Eurocontrol's surrejoinder of 26 November 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision confirming his fitness for
work and instructing him to resume his duties.
The complainant joined the Eurocontrol Agency, ...
- ...
the French text alone
being authoritative.
A. (No. 3)
v.
Eurocontrol
136th Session Judgment No. 4694
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr G. A.
against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 7 February 2019 and corrected on 18 March 2019, Eurocontrol's
reply of 26 June 2019, the complainant's rejoinder of 14 August 2019
and Eurocontrol's surrejoinder of 26 November 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision confirming his fitness for
work and instructing him to resume his duties.
The complainant joined the Eurocontrol Agency, the secretariat of
the Organisation, on 16 September 1991. In 2013, through his treating ...
- ... Eurocontrol's
reply of 26 June 2019, the complainant's rejoinder of 14 August 2019
and Eurocontrol's surrejoinder of 26 November 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision confirming his fitness for
work and instructing him to resume his duties.
The complainant joined the Eurocontrol Agency, the secretariat of
the Organisation, on 16 September 1991. In 2013, through his treating
physician, Dr G., the complainant submitted a request to the Organisation's
Medical Adviser for his working hours to be reduced to 80 per cent due
to a medical condition. This request was granted for the period from
5 March to 5 April 2013. In November 2015, the complainant's condition
worsened after he fell on the stairs at home. On 30 March 2016, in view
of the number of ...
- ... fit for work and
instructing him to resume his duties. In his rejoinder, he also asks for the
setting aside of the decision of 9 May 2019, which expressly rejected
his internal complaint and which was taken while the proceedings were
ongoing. He seeks damages in the amount of 45,111.60 euros for the
material injury he considers he has suffered. In addition, he seeks an
award of 20,000 euros for the moral injury he alleges he has suffered,
together with costs.
Eurocontrol asks the Tribunal to declare the complaint irreceivable
and, subsidiarily, to dismiss it as entirely unfounded.
CONSIDERATIONS
1.
In his brief, the complainant asks the Tribunal to set aside the
implied decision rejecting his internal complaint of 10 July 2018. He
describes the object of his complaint as being "to set aside the decision
Judgment No. 4694
5
of 10 April 2018 that declared the complainant fit for work and
instructed [him] ...
- ...
instructed [him] to resume his duties; to order the Organisation to
compensate the complainant for material and moral injury; [and] to
order the Organisation to pay all the costs".
The complainant had described his internal complaint of 10 July
2018 as challenging the decision of 10 April 2018 and the decision of
8 May 2018 which adversely affected him, and stated that it was made
on the basis of Article 92(2) of the Staff Regulations governing officials
of the Eurocontrol Agency. In the internal complaint, the complainant
also referred, this time citing Article 92(1) of the Staff Regulations,
to the application he had made to be considered eligible for the
arrangements for part-time work on medical grounds ("PTWMG")
provided for in Article 2(1)(b) of Rule of Application No. 48 relating to
medical part-time.
2.
Article 92(1) and (2) of the Staff Regulations provides as
follows:
"1. Any person to whom these Staff Regulations apply ...
- ... and duration. The number of
days' absence on PTWMG must be less than or equal to half of the number
of working days in the concerned week. The full-days or half-days of work,
as stipulated by the Medical Adviser when granting authorisation for
PTWMG, must comply with the period of PTWMG specified. During the
full-days/half-days worked, compliance with the rules applicable to morning
and/or afternoon core time shall be mandatory.
[...]
"
3.
Eurocontrol
s
ubmits that
the complaint
is
irreceivable
because
the complainant
did not comply with the
requirements under
Article
VII, paragraph
1,
of the
Statute of the
Tribunal
to exhaust the
internal means of redress available to him as an official of the
Organisation.
However, the
Tribunal
notes that, pursuant to the last
sentence of
Article
92
(2) of the Staff Regulations
, ...
- ... Joint Committee for Disputes of 29 March 2019 and the
situation as assessed by the Invalidity Committee on 9 February 2017.
It follows that neither the decision of 10 April 2018 nor the
impugned decision is flawed for insufficient reasoning. This plea is
unfounded.
11.
Lastly, in support of his claim for the decision of 10 April
2018 to be set aside, the complainant relies, in his complaint, on what
he describes as blatant errors of assessment on the part of Eurocontrol
and errors in relation to the procedural safeguards to which he was
entitled, in that the Organisation disregarded the reports from the
medical expert he had appointed and from his psychiatrist. In this
regard, he refers to a psychiatric report of 28 February 2018, of which
Dr M. did indeed take account in his note of 30 March 2018, and to a
report of 14 February 2018, which is in fact a technical note from the
insurance company's doctor intended for use in the case management ...
- Judgment 4594
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the cancellation of a competition in which she took part.
- ... Eurocontrol
135th Session Judgment No. 4594
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. W. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
13 December 2018, Eurocontrol's reply of 5 April 2019, the complainant's
rejoinder of 19 June 2019 and Eurocontrol's surrejoinder of 2 October
2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the ...
- ... Eurocontrol) on
13 December 2018, Eurocontrol's reply of 5 April 2019, the complainant's
rejoinder of 19 June 2019 and Eurocontrol's surrejoinder of 2 October
2019;
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 seeks the cancellation of a competition ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
W.
v.
Eurocontrol
135th Session Judgment No. 4594
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. W. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
13 December 2018, Eurocontrol's reply of 5 April 2019, the complainant's
rejoinder of 19 June 2019 and Eurocontrol's surrejoinder of 2 October
2019;
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 seeks the cancellation of a competition in which
she took part. ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
W.
v.
Eurocontrol
135th Session Judgment No. 4594
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. W. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
13 December 2018, Eurocontrol's reply of 5 April 2019, the complainant's
rejoinder of 19 June 2019 and Eurocontrol's surrejoinder of 2 October
2019;
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 seeks the cancellation of a competition in which
she took part.
On 2 August 2017 Eurocontrol published internal notice of
competition MA-2017-AD/061 ...
- ... the complainant's
rejoinder of 19 June 2019 and Eurocontrol's surrejoinder of 2 October
2019;
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 seeks the cancellation of a competition in which
she took part.
On 2 August 2017 Eurocontrol published internal notice of
competition MA-2017-AD/061 for the post of "Head of Finance and
Procurement", in the group of grades AD9-12, at the Maastricht Upper
Area Control Centre (MUAC). The section of the vacancy notice headed
"Required profile" stated that candidates should have "proficiency in
finance (budgeting, accounts receivable etc)." The complainant, a
Eurocontrol official holding grade AD10, applied for this post on
11 September 2017. By email of 5 October ...
- ... seeks the cancellation of a competition in which
she took part.
On 2 August 2017 Eurocontrol published internal notice of
competition MA-2017-AD/061 for the post of "Head of Finance and
Procurement", in the group of grades AD9-12, at the Maastricht Upper
Area Control Centre (MUAC). The section of the vacancy notice headed
"Required profile" stated that candidates should have "proficiency in
finance (budgeting, accounts receivable etc)." The complainant, a
Eurocontrol official holding grade AD10, applied for this post on
11 September 2017. By email of 5 October 2017, Ms T., from the
Recruitment and Mobility Service, informed the complainant on behalf
Judgment No. 4594
2
of the Selection Board that her application had been rejected, but did
not provide any reasons. On 10 October 2017 the complainant had a
telephone conversation with the Chairperson of the Selection Board about
the reasons for her elimination. On ...
- ...
claims as unfounded. It submits various documents before the Tribunal,
including the report drawn up by the Selection Board and an email of
22 February 2019 sending the complainant the extract from the report
that related to her. It also supplies the names of the members of the
Selection Board and the shortlisted candidates.
Having sent the
complaint and the rejoinder, at the Tribunal's request, to the person who
was appointed as a result of that competition, Eurocontrol also submits
the observations of that person, dated 12 August 2019, annexed to its
surrejoinder.
Judgment No. 4594
4
CONSIDERATIONS
1.
The complainant seeks, primarily, the setting aside of the
decision of 3 October 2018 which rejected the internal complaint she
had lodged seeking the cancellation of a competition in which she
participated.
2.
The complainant submits in the first place that the member of
the Recruitment ...
- ... of the email to which the complainant refers was
to inform her of the outcome of the Selection Board's deliberations. It
did not constitute a decision in itself.
The first plea is therefore unfounded.
3.
In the second place, the complainant submits that the decision
to reject her application, dated 5 October 2017, did not state the grounds
on which it was based, in breach of the requirements of Article 25 of
the Staff Regulations governing officials of the Eurocontrol Agency. In
her rejoinder, the complainant also takes the Organisation to task for
the fact that the grounds for the decision to reject her application were
only formally communicated to her in writing in the context of the
proceedings before the Tribunal, in an email from the Chairperson of
the Selection Board dated 22 February 2019.
However, it is clear from the evidence that the Selection Board's
decision to reject the complainant's application, taken on 27 September ...
- ... Article 25 of the Staff Regulations
were not fully adhered to in the present case, in that the grounds for the
decision were not communicated to the complainant at once, the
Tribunal nevertheless considers that this is not a serious defect such as
would warrant the setting aside of the impugned decision.
4.
In the third place, the complainant alleges that the principle of
due process was breached in that she was not given access to the
"complete file" sent by Eurocontrol to the Joint Committee for
Disputes. However, the Tribunal notes that the complainant was
notified by the Organisation in a timely manner of its intention to send
that file to the Committee and she therefore had the opportunity to ask
either the Organisation or the Committee for a copy of it. The Tribunal
notes in addition that, in the present case, it appears from the file that
the documents sent by the Organisation to the Committee were all
known to the complainant, ...
- ... to the complainant, since they were documents annexed to her
internal complaint. The plea must therefore be rejected.
5.
In her fourth plea, the complainant alleges that the independence
of the Joint Committee for Disputes was compromised by the fact that
the Secretary of the Committee was a subordinate of the Head of the
Human Resources and Staff Administration Service.
The Tribunal notes, however, first, that the appointment by the
Director General of a Eurocontrol official as the Secretary of the
Committee is expressly provided for in Article 2 of the Annex to
Office Notice No. 06/11 on the Functioning of the Joint Committee for
Disputes tasked with handling complaints and, secondly, that there is
nothing to preclude that official from being a subordinate of that
Head of Service. The Secretary of the Committee, who fulfils a purely
Judgment No. 4594
6
administrative role, does not form part of the Committee. ...
- ... in a way dictated by his superior.
This plea is also unfounded.
6.
In her fifth plea, the complainant submits that the various
decisions relating to the handling of her internal complaint were taken
by the Head of the Human Resources and Staff Administration Service
whereas they fell within the competence of the Director General, who
had not delegated his authority to the aforementioned Head.
However, the Tribunal finds from the evidence adduced by
Eurocontrol in support of its reply that:
- by Decision No. XI/14 (2016) of 1 December 2016, the Director
General had delegated power to the Director of Resources to take
and sign certain decisions referred to in the provisions of the Staff
Regulations, including "decisions and documents relating to the
complaint process" (see the eighth indent of Article 1 of that
decision);
- under Article 2 of that same decision, the Director of Resources is
authorised to transfer all or part ...
- ... relates to the
implementation of the decision and not to its content. Although this
situation is, admittedly, irregular, it is not such as to render that decision
unlawful.
In the second place, as regards the request to be informed of the
names of the candidates shortlisted by the Selection Board and the
names of the members of the Selection Board, the Tribunal notes that
those names appear in the redacted version of the Selection Board's
report submitted by Eurocontrol as an annex to its reply, meaning that
the complainant was able to use that information to put together the
arguments that she considered beneficial to the defence of her interests
before the Tribunal. It should also be pointed out that the complainant
did in fact put forward in her rejoinder a plea alleging a conflict of
interest on the part of one of the members of the Selection Board which
was based on the information in question.
In the third place, it is apparent ...
- ... Moreover,
even though that duration breached the applicable provisions, the
complainant has not adduced any specific evidence of injury arising
from the delay.
It is therefore not appropriate to award the complainant compensation
under this head.
13.
As the complainant has succeeded in part, she is entitled to
costs, which the Tribunal sets at 3,000 euros.
Judgment No. 4594
11
DECISION
For the above reasons,
1.
Eurocontrol shall pay the complainant moral damages in the
amount of 3,000 euros.
2.
It shall also pay her 3,000 euros in costs.
3.
All other claims are dismissed.
In witness of this judgment, adopted on 17 November 2022,
Mr Patrick Frydman, Vice-President of the Tribunal, Mr Jacques
Jaumotte, Judge, and Mr Clément Gascon, Judge, sign below, as do I,
Dražen Petrovic, Registrar.
Delivered on 1 February 2023 by video recording posted on the
Tribunal's Internet ...
- Judgment 4593
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the withdrawal of his right to supplementary days of annual leave for “travelling time”.
- ... Eurocontrol
135th Session Judgment No. 4593
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J.-P. R. against the
European Organisation for the Safety of Air Navigation
(Eurocontrol)
on 16 October 2018, Eurocontrol's reply of 25 January 2019, the
complainant's rejoinder of 26 February 2019, Eurocontrol's
surrejoinder of 5 June 2019, Eurocontrol's further submissions dated
16 October 2020 and the complainant's final comments of ...
- ... Eurocontrol)
on 16 October 2018, Eurocontrol's reply of 25 January 2019, the
complainant's rejoinder of 26 February 2019, Eurocontrol's
surrejoinder of 5 June 2019, Eurocontrol's further submissions dated
16 October 2020 and the complainant's final comments of 5 January
2021;
Considering the applications to intervene filed by Ms F. A., Mr Y.
C., Ms S. G., Mr P. M. and Mr P. Q. on 1 September 2020 and
Eurocontrol's comments thereon dated 1 December 2020;
Considering Articles ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
135th Session Judgment No. 4593
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J.-P. R. against the
European Organisation for the Safety of Air Navigation
(Eurocontrol)
on 16 October 2018, Eurocontrol's reply of 25 January 2019, the
complainant's rejoinder of 26 February 2019, Eurocontrol's
surrejoinder of 5 June 2019, Eurocontrol's further submissions dated
16 October 2020 and the complainant's final comments of 5 January
2021;
Considering the applications to intervene filed by Ms F. A., Mr Y.
C., Ms S. G., Mr P. M. and Mr P. Q. on 1 September 2020 and
Eurocontrol's comments thereon dated 1 December 2020;
Considering Articles II, paragraph 5, and VII of the Statute ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
135th Session Judgment No. 4593
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J.-P. R. against the
European Organisation for the Safety of Air Navigation
(Eurocontrol)
on 16 October 2018, Eurocontrol's reply of 25 January 2019, the
complainant's rejoinder of 26 February 2019, Eurocontrol's
surrejoinder of 5 June 2019, Eurocontrol's further submissions dated
16 October 2020 and the complainant's final comments of 5 January
2021;
Considering the applications to intervene filed by Ms F. A., Mr Y.
C., Ms S. G., Mr P. M. and Mr P. Q. on 1 September 2020 and
Eurocontrol's comments thereon dated 1 December 2020;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold ...
- ...
the French text alone
being authoritative.
R.
v.
Eurocontrol
135th Session Judgment No. 4593
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J.-P. R. against the
European Organisation for the Safety of Air Navigation
(Eurocontrol)
on 16 October 2018, Eurocontrol's reply of 25 January 2019, the
complainant's rejoinder of 26 February 2019, Eurocontrol's
surrejoinder of 5 June 2019, Eurocontrol's further submissions dated
16 October 2020 and the complainant's final comments of 5 January
2021;
Considering the applications to intervene filed by Ms F. A., Mr Y.
C., Ms S. G., Mr P. M. and Mr P. Q. on 1 September 2020 and
Eurocontrol's comments thereon dated 1 December 2020;
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 ...
- ... Organisation for the Safety of Air Navigation
(Eurocontrol)
on 16 October 2018, Eurocontrol's reply of 25 January 2019, the
complainant's rejoinder of 26 February 2019, Eurocontrol's
surrejoinder of 5 June 2019, Eurocontrol's further submissions dated
16 October 2020 and the complainant's final comments of 5 January
2021;
Considering the applications to intervene filed by Ms F. A., Mr Y.
C., Ms S. G., Mr P. M. and Mr P. Q. on 1 September 2020 and
Eurocontrol's comments thereon dated 1 December 2020;
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 withdrawal of his right to
supplementary days of annual leave for "travelling time".
The complainant, a French national, joined Eurocontrol ...
- ... comments thereon dated 1 December 2020;
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 withdrawal of his right to
supplementary days of annual leave for "travelling time".
The complainant, a French national, joined Eurocontrol on
16 August 1991. He was assigned to the Experimental Centre at
Brétigny-sur-Orge (France), which is part of the Eurocontrol Agency,
the secretariat of the Organisation. By decision of the Director General
Judgment No. 4593
2
of 21 October 1991, the complainant's place of origin was determined
to be Antananarivo (Madagascar), since that is where he had his main
family ties. As a result, he was entitled to an additional six days' annual
leave, ...
- ... 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 withdrawal of his right to
supplementary days of annual leave for "travelling time".
The complainant, a French national, joined Eurocontrol on
16 August 1991. He was assigned to the Experimental Centre at
Brétigny-sur-Orge (France), which is part of the Eurocontrol Agency,
the secretariat of the Organisation. By decision of the Director General
Judgment No. 4593
2
of 21 October 1991, the complainant's place of origin was determined
to be Antananarivo (Madagascar), since that is where he had his main
family ties. As a result, he was entitled to an additional six days' annual
leave, known as travelling time, to return to his determined place of
origin.
In 2016, in the context of an administrative reform, ...
- ...
to newly-recruited officials.
By internal memorandum of 21 August 2018, the Head of the
Human Resources and Services Unit, acting by delegation of the
Director General, dismissed the complainant's internal complaint, stating
that she shared the opinion of the two members of the Committee who
had considered the complaint to be unfounded. That is the impugned
decision.
The complainant asks the Tribunal to set aside the decision of
21 August 2018 and to order Eurocontrol to reinstate his entitlement to
six days' leave per year for travelling time. In addition, he seeks the
payment of compensation calculated on the basis of his daily salary for
each day lost from the effective withdrawal of the days for travelling
time leave until the date of the present judgment. Subsidiarily, if his
entitlement cannot be reinstated, the complainant seeks payment for the
additional days worked, on top of his salary. He also requests that this
additional ...
- ... reinstated, the complainant seeks payment for the
additional days worked, on top of his salary. He also requests that this
additional payment be reflected in his future retirement pension. The
complainant claims 40,000 euros for what he calls "emotional damages"
and a further 40,000 euros for the moral injury he alleges he has
suffered. The complainant also claims 5,000 euros in damages for the
delay in dealing with his internal complaints and 6,000 euros in costs.
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims, including those for costs, as unfounded. It acknowledges that
the five interveners, who were all identified along with the complainant
as "complainants" in the opinion of the Joint Committee for Disputes
of 24 May 2018, are in a similar situation in fact and law to that of the
complainant.
Judgment No. 4593
4
CONSIDERATIONS
1.
In his complaint, the complainant seeks the setting ...
- ... including those for costs, as unfounded. It acknowledges that
the five interveners, who were all identified along with the complainant
as "complainants" in the opinion of the Joint Committee for Disputes
of 24 May 2018, are in a similar situation in fact and law to that of the
complainant.
Judgment No. 4593
4
CONSIDERATIONS
1.
In his complaint, the complainant seeks the setting aside of
the decision of 21 August 2018 of the Head of Eurocontrol's Human
Resources and Services Unit, acting by delegation of the Director
General, and accordingly asks that Eurocontrol be ordered, inter alia, to
reinstate the six days per year for travelling time to which he had been
entitled continuously from October 1991 until 31 December 2017.
Five officials who consider themselves to be in a similar legal and
factual situation to that of the complainant have filed applications to
intervene.
2.
The complainant has been ...
- ... complainant
as "complainants" in the opinion of the Joint Committee for Disputes
of 24 May 2018, are in a similar situation in fact and law to that of the
complainant.
Judgment No. 4593
4
CONSIDERATIONS
1.
In his complaint, the complainant seeks the setting aside of
the decision of 21 August 2018 of the Head of Eurocontrol's Human
Resources and Services Unit, acting by delegation of the Director
General, and accordingly asks that Eurocontrol be ordered, inter alia, to
reinstate the six days per year for travelling time to which he had been
entitled continuously from October 1991 until 31 December 2017.
Five officials who consider themselves to be in a similar legal and
factual situation to that of the complainant have filed applications to
intervene.
2.
The complainant has been a Eurocontrol official since
16 August 1991. At the time of his recruitment, Rule of Application
No. 6 concerning the ...
- ...
Resources and Services Unit, acting by delegation of the Director
General, and accordingly asks that Eurocontrol be ordered, inter alia, to
reinstate the six days per year for travelling time to which he had been
entitled continuously from October 1991 until 31 December 2017.
Five officials who consider themselves to be in a similar legal and
factual situation to that of the complainant have filed applications to
intervene.
2.
The complainant has been a Eurocontrol official since
16 August 1991. At the time of his recruitment, Rule of Application
No. 6 concerning the terms and conditions governing leave provided as
follows in Article 8 in Section 3:
"Section 3
TRAVELLING TIME
Article 8
1. To the period of [annual] leave provided for in Section 1 above shall
be added travelling time based on the distance by rail between the place
of origin and the place of employment, calculated as follows:
- 50 to 250 km: one day for ...
- ... civic interests, both active and passive.
If all three criteria referred to in a), b) and c) are not fulfilled by the
same place, the official's centre of interests shall be taken as the place
where at least two of the three criteria are met or failing that the place
Judgment No. 4593
6
where the official retains his main family ties, confined in this instance
to the official's father, mother or children."
*
3.
On 1 July 2016, Eurocontrol amended Rule of Application
No. 6, and more particularly Article 8 thereof, concerning travelling
time, which thenceforth provided:
"1. Officials who are entitled to the expatriation or foreign residence
allowance shall be entitled to two and a half days of supplementary
leave every year, for the purpose of visiting their home country. These
provisions shall apply as from 1 July 2016.
2. For officials recruited before 1 July 2016, transitional measures shall
apply ...
- ... rights, the fifth alleging discrimination on grounds of
*
Registry's translation.
Judgment No. 4593
7
nationality, and the sixth and final plea alleging an unreasonable delay
in dealing with his internal complaints.
5.
As regards the first plea, alleging a lack of delegation in
relation to the impugned decision of 21 August 2018 signed by
Ms S.D., the Head of the Human Resources and Services Unit, the
evidence produced by Eurocontrol shows to the Tribunal's satisfaction
that Ms S.D. had the authority to take and sign that decision.
Pursuant to Decision No. XI/14 (2016) of 1 December 2016, power
had been delegated by the Director General to the Director of Resources
(Mr A.V.) to take and sign decisions relating, inter alia, to the internal
complaint process. Furthermore, that delegating decision remained in
force during the implementation of the new organisation of management
at Director level which ...
- ... No. 4593
8
consideration 11, "[i]t is well established by the case law that the
reasons for a decision must be sufficiently explicit to enable the staff
member concerned to take an informed decision accordingly; that they
must also enable the competent review bodies to determine whether the
decision is lawful and the Tribunal to exercise its power of review".
In the present case, the Tribunal notes that the impugned decision
explains why Eurocontrol considers that the rules for granting travelling
time leave should not be characterised as acquired rights and clarifies
why the rules were adopted and how they do not discriminate between
officials of different nationalities. That reasoning satisfies the requirements
under the case law referred to above. Furthermore, the complainant's
arguments in support of his complaint demonstrate his understanding
of the reasons underpinning that decision and the consequences in terms ...
- ... interests which had led to the determination of
Judgment No. 4593
9
Madagascar as his place of origin, being his centre of interests. The
complainant submits that his passport and that of his wife are full of
entry stamps to the place of origin, attesting to their regular visits. He
adds that the withdrawal of those six days of leave amounts, in his case,
to 3 per cent more work without any additional pay.
9.
In its submissions, Eurocontrol relies on the case law of the
General Court of the European Union in support of its arguments.
However, it is established, as the complainant rightly points out, that the
Tribunal is not bound by the case law of other international or regional
courts (see, for example, Judgment 4363, consideration 12). Furthermore,
the interpretation given by the General Court of the European Union in
some of its judgments is not relevant to the resolution of the present
case in view ...
- ... is not bound by the case law of other international or regional
courts (see, for example, Judgment 4363, consideration 12). Furthermore,
the interpretation given by the General Court of the European Union in
some of its judgments is not relevant to the resolution of the present
case in view of the case law of this Tribunal on acquired rights and the
differences in the organisational rules which apply to the present case
and those on which the judgments to which Eurocontrol refers were
based.
10.
The Tribunal recalls that, according to its case law on acquired
rights, the amendment of a rule governing an official's situation to her
or his detriment constitutes a breach of an acquired right only when the
structure of the contract of appointment is disturbed or there is
impairment of a fundamental and essential term of appointment in
consideration of which the official accepted appointment, or which
subsequently induced her or him ...
- ... (see, for example,
Judgments 4398, consideration 11, 4381, consideration 13 and 14, and
3074, consideration 16, and the case law cited in those judgments).
In the present case, the Tribunal takes the view that the complainant
has failed to show that the structure of his contract of appointment has
been disturbed by the amendment or that the amendment relates to a
fundamental and essential term of employment without which he would
not have accepted appointment with Eurocontrol or stayed on there. The
Tribunal finds that a benefit granting supplemental leave, the withdrawal
of which affects neither the complainant's overall remuneration nor the
Judgment No. 4593
10
days of annual leave provided for in the Staff Regulations governing
officials of the Eurocontrol Agency, cannot be regarded as fundamental
or essential.
In addition, although the complainant asserts in his submissions
that the matter in hand is a condition ...
- ... by the amendment or that the amendment relates to a
fundamental and essential term of employment without which he would
not have accepted appointment with Eurocontrol or stayed on there. The
Tribunal finds that a benefit granting supplemental leave, the withdrawal
of which affects neither the complainant's overall remuneration nor the
Judgment No. 4593
10
days of annual leave provided for in the Staff Regulations governing
officials of the Eurocontrol Agency, cannot be regarded as fundamental
or essential.
In addition, although the complainant asserts in his submissions
that the matter in hand is a condition of employment which, he claims,
induced him to accept the appointment at the time of his recruitment,
the Tribunal notes that, under the provisions applicable at that time, his
place of origin was deemed to be that of his residence at the date of
recruitment, in other words, his place of work (in France), that ...
- Judgment 4592
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the calculation of the amounts transferred into the Eurocontrol scheme in respect of his previously-acquired pension rights and seeks compensation for the injury he considers he has suffered as a result of alleged negligence on the part of the Organisation.
- ... Eurocontrol
135th Session Judgment No. 4592
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. G. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
10 September 2019, Eurocontrol's reply of 20 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol) on
10 September 2019, Eurocontrol's reply of 20 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
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 calculation ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
G.
v.
Eurocontrol
135th Session Judgment No. 4592
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. G. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
10 September 2019, Eurocontrol's reply of 20 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
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 calculation of the amounts
transferred into the ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
G.
v.
Eurocontrol
135th Session Judgment No. 4592
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. G. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
10 September 2019, Eurocontrol's reply of 20 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
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 calculation of the amounts
transferred into the Eurocontrol scheme in respect of his previously
acquired pension rights and seeks compensation ...
- ... of 20 December 2019, the
complainant's rejoinder of 16 March 2020 and Eurocontrol's surrejoinder
of 26 June 2020;
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 calculation of the amounts
transferred into the Eurocontrol scheme in respect of his previously
acquired pension rights and seeks compensation for the injury he
considers he has suffered as a result of alleged negligence on the part
of the Organisation.
The complainant is a British citizen born in 1958. Before joining
the Eurocontrol Agency, the secretariat of the Organisation, on 1 June
2006, he was a member of a pension scheme in the United Kingdom
(CAAPS). By email of 29 March 2018, the complainant enquired
through the relevant ...
- ... for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the calculation of the amounts
transferred into the Eurocontrol scheme in respect of his previously
acquired pension rights and seeks compensation for the injury he
considers he has suffered as a result of alleged negligence on the part
of the Organisation.
The complainant is a British citizen born in 1958. Before joining
the Eurocontrol Agency, the secretariat of the Organisation, on 1 June
2006, he was a member of a pension scheme in the United Kingdom
(CAAPS). By email of 29 March 2018, the complainant enquired
through the relevant support department about the procedure for
transferring the value of his CAAPS pension rights into the Eurocontrol
Judgment No. 4592
2
pension scheme. After various email exchanges, the complainant sent a
transfer request dated 12 April 2018 by registered ...
- ... he has suffered as a result of alleged negligence on the part
of the Organisation.
The complainant is a British citizen born in 1958. Before joining
the Eurocontrol Agency, the secretariat of the Organisation, on 1 June
2006, he was a member of a pension scheme in the United Kingdom
(CAAPS). By email of 29 March 2018, the complainant enquired
through the relevant support department about the procedure for
transferring the value of his CAAPS pension rights into the Eurocontrol
Judgment No. 4592
2
pension scheme. After various email exchanges, the complainant sent a
transfer request dated 12 April 2018 by registered post, receipt of which
was acknowledged by the Organisation on 18 April. On 2 May 2018 the
Administration sent the complainant an offer containing a calculation
of his pension annuities based, in particular, on the total transferable
amount supplied by CAAPS. This amount came to 1,199,026.54 pounds
sterling ...
- ... 12 April 2018 by registered post, receipt of which
was acknowledged by the Organisation on 18 April. On 2 May 2018 the
Administration sent the complainant an offer containing a calculation
of his pension annuities based, in particular, on the total transferable
amount supplied by CAAPS. This amount came to 1,199,026.54 pounds
sterling (1,356,364 euros) and was guaranteed by CAAPS until 9 July
2018, the date by which CAAPS needed to receive various documents
from Eurocontrol's Pension Service. On several occasions between
2 May and 15 June, the complainant asked the Administration for
assistance in relation to the offer conditions and the transfer process, in
particular in view of his tax situation given that he resided in Germany
but worked for Eurocontrol in Luxembourg.
By email of 29 June 2018, the complainant confirmed that he
accepted the offer of 2 May and stated that he would post the official
letter that same day. That letter reached ...
- ... This amount came to 1,199,026.54 pounds
sterling (1,356,364 euros) and was guaranteed by CAAPS until 9 July
2018, the date by which CAAPS needed to receive various documents
from Eurocontrol's Pension Service. On several occasions between
2 May and 15 June, the complainant asked the Administration for
assistance in relation to the offer conditions and the transfer process, in
particular in view of his tax situation given that he resided in Germany
but worked for Eurocontrol in Luxembourg.
By email of 29 June 2018, the complainant confirmed that he
accepted the offer of 2 May and stated that he would post the official
letter that same day. That letter reached the Pension Service on 4 July
2018 while the official in charge of the complainant's file, Ms V.L.,
was on leave. By email of 17 July, Ms V.L. informed the complainant
that certain forms required by CAAPS were missing. The complainant
returned the documents in question by email on 23 ...
- ...
Pension Service on 11 October, the complainant received, on 24 October,
a second offer containing a calculation of his pension annuities dated
16 October. The calculation was based, in particular, on a total
transferable amount which this time was 1,130,144.04 pounds sterling
(1,259,101 euros), guaranteed by CAAPS until 10 January 2019.
On 12 November 2018 the complainant lodged a complaint pursuant
to Article 92 of the Staff Regulations governing officials of the Eurocontrol
Agency alleging the mishandling of his transfer request by the Pension
Service and asking the Director General to nominate a member of
staff to deal with the matter. On 13 November he signed the CAAPS
Judgment No. 4592
3
declaration form for the transfer of his pension rights and agreed to the
second offer. By letter of 21 November 2018, the Pension Service sent
to CAAPS the final agreement including, inter alia, the complainant's
declaration. ...
- ... drew
Ms V.L.'s attention to the fact that the grade used for the purposes of
calculating the annuities was incorrect.
On 12 December 2018 the complainant lodged a second complaint
pursuant to Article 92.2 of the Staff Regulations, in which he requested
the recalculation of his rights together with compensation for the
financial loss caused by the negligence of the Pension Service. By letter
of 13 December 2018, CAAPS confirmed that it had sent a payment to
Eurocontrol for the transfer value (1,105,108.03 pounds sterling, that is,
1,231,208.39 euros), being the amount of the second offer after
deduction of certain taxes.
On 8 January 2019 the complainant signed a "quittance", by which
he declared that he took full responsibility for the tax formalities
resulting from the transfer, enabling him to receive payment of a lump
sum into his bank account for the value of the rights transferred to him.
By internal memorandum of 14 January 2019, ...
- ... a minimum of
124,869.05 euros by way of redress for the material injury which he
alleges to have suffered. He also asks for interest on that sum at the
"statutory rate in Luxembourg plus five points". As for damages, the
complainant claims 50,000 euros for moral injury plus 10,000 euros for
having been denied the right to an effective internal appeal and
10,000 euros for the delay in dealing with his complaint. In addition,
the complainant asks the Tribunal to order Eurocontrol to pay the sum
of 25,000 euros by way of punitive and exemplary damages. He also
claims 3,000 euros for the expenses incurred as a result of his internal
complaint and 7,000 euros in costs.
Eurocontrol asks the Tribunal to declare the complaint irreceivable
for failure to exhaust internal means of redress and for lack of a cause
of action. Subsidiarily, it requests the dismissal of all the complainant's
claims as unfounded.
CONSIDERATIONS
1.
The complainant ...
- ... damages, the
complainant claims 50,000 euros for moral injury plus 10,000 euros for
having been denied the right to an effective internal appeal and
10,000 euros for the delay in dealing with his complaint. In addition,
the complainant asks the Tribunal to order Eurocontrol to pay the sum
of 25,000 euros by way of punitive and exemplary damages. He also
claims 3,000 euros for the expenses incurred as a result of his internal
complaint and 7,000 euros in costs.
Eurocontrol asks the Tribunal to declare the complaint irreceivable
for failure to exhaust internal means of redress and for lack of a cause
of action. Subsidiarily, it requests the dismissal of all the complainant's
claims as unfounded.
CONSIDERATIONS
1.
The complainant asks the Tribunal to set aside the decision of
the Head of Human Resources of 21 June 2019 taken on behalf of the
Director General. In that decision, the Head of Human Resources
referred to the complainant's ...
- ...
value of the surplus had fallen by more than 110,000 euros by the time he
received the second offer. He therefore requested the Director General
to nominate somebody to deal with the matter.
3.
The complainant's second internal complaint, dated
12 December 2018, was headed "Complaint under Article 92.2 of the
Staff Regulations, made through official channels". The complainant
called it an official complaint. He alleged that the procedure adopted by
the Eurocontrol Agency and the errors and negligence on its part had
deprived him of a part of his pension rights on the transfer. The
complainant noted the difference between the amounts quoted in the
first offer and those in the second offer received from CAAPS, and
explained that he had accepted the second offer because he had no
alternative, even though it was 110,677 euros less. He went on to point
out the adverse impact of this difference, arguing that the loss of more
than 110,000 ...
- ... resulting from the transfer came to 20 years, 4 months and
13 days, and explained that the amount transferred was made up of the
portion representing those years, being 809,045.43 euros, and the balance
Judgment No. 4592
7
of 422,450.37 euros, of which 200,000 euros would be paid into the
complainant's private pension fund and 222,450.37 euros into his usual
bank account. In that regard, the decision referred to a "tax quittance"
provided to Eurocontrol. This document, signed by the complainant on
8 January 2019 and referred to in the impugned decision, is a declaration
by which the complainant accepts full responsibility for declaring to the
tax authorities the overall amount paid into his bank account under the
terms of the transfer.
7.
Eurocontrol challenges the receivability of the complaint on
three grounds. First of all, it submits that the complainant's internal
complaints were not complaints within the ...
- ...
complainant's private pension fund and 222,450.37 euros into his usual
bank account. In that regard, the decision referred to a "tax quittance"
provided to Eurocontrol. This document, signed by the complainant on
8 January 2019 and referred to in the impugned decision, is a declaration
by which the complainant accepts full responsibility for declaring to the
tax authorities the overall amount paid into his bank account under the
terms of the transfer.
7.
Eurocontrol challenges the receivability of the complaint on
three grounds. First of all, it submits that the complainant's internal
complaints were not complaints within the meaning of Article 92.2 of
the Staff Regulations, as they were not directed against an act adversely
affecting him. Next, it asserts that the impugned decision of 21 June
2019 merely confirmed the earlier final decision of 14 January 2019
concerning the transfer of the complainant's pension rights, and as the
complainant ...
- ... as the
complainant never challenged that earlier decision by means of an
internal complaint, he has not exhausted the internal means of redress.
Lastly, it maintains that the complainant no longer has a cause of action
given that he did not challenge that final decision of 14 January 2019,
he accepted the transfer of his pension rights and he signed the "tax
quittance" on 8 January 2019.
8.
Article 92 of the Staff Regulations governing officials of the
Eurocontrol agency provides as follows with regard to internal means
of redress:
"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 end of that period no reply to the request has been
received, this shall be deemed to constitute an implied decision ...
- ... the response to his/her
complaint
.
If no opinion is received within the period prescribed above, the Director
General may proceed with his/her decision."
9.
In view of the provisions reproduced above, the Tribunal is
astonished that the complainant's internal memorandum of 12 November
2018 and his note of 12 December 2018, which were essentially seeking
compensation for the injury he considered he had suffered as result of
the manner in which Eurocontrol had handled the settlement of his
pension rights, were treated by the Organisation as complaints within
the meaning of Article 92.2 of the Staff Regulations and therefore
transmitted by the Head of Human Resources to the Joint Committee
for Disputes, whereas in reality they were requests made on the basis of
Article 92.1 for a decision to be taken in relation to the complainant.
In other words, Eurocontrol failed to take any decision in relation to
the complainant's requests ...
- ... considered he had suffered as result of
the manner in which Eurocontrol had handled the settlement of his
pension rights, were treated by the Organisation as complaints within
the meaning of Article 92.2 of the Staff Regulations and therefore
transmitted by the Head of Human Resources to the Joint Committee
for Disputes, whereas in reality they were requests made on the basis of
Article 92.1 for a decision to be taken in relation to the complainant.
In other words, Eurocontrol failed to take any decision in relation to
the complainant's requests before referring the matter to the Committee.
Although it is true that the complainant himself caused a certain amount of
confusion by expressly using the word "complaint" in the aforementioned
communications and, in the second, by referring to Article 92.2, in
accordance with the Tribunal's case law, Eurocontrol should nevertheless
have re-categorised the communications itself and should have regarded ...
- ... 92.1 for a decision to be taken in relation to the complainant.
In other words, Eurocontrol failed to take any decision in relation to
the complainant's requests before referring the matter to the Committee.
Although it is true that the complainant himself caused a certain amount of
confusion by expressly using the word "complaint" in the aforementioned
communications and, in the second, by referring to Article 92.2, in
accordance with the Tribunal's case law, Eurocontrol should nevertheless
have re-categorised the communications itself and should have regarded
them as requests pursuant to Article 92.1.
However, the Tribunal notes that the dispute before it is regarded
by the parties as having reached the stage in the internal appeal
procedure where the Joint Committee for Disputes becomes involved.
It is therefore in that specific context that the Tribunal will examine the
parties' arguments.
10.
As regards the first objection ...
- ... the communications itself and should have regarded
them as requests pursuant to Article 92.1.
However, the Tribunal notes that the dispute before it is regarded
by the parties as having reached the stage in the internal appeal
procedure where the Joint Committee for Disputes becomes involved.
It is therefore in that specific context that the Tribunal will examine the
parties' arguments.
10.
As regards the first objection to receivability raised by
Eurocontrol, in which it argues that the complaint is irreceivable
because the complainant's communications of 12 November and
12 December 2018 did not constitute complaints within the meaning of
the Staff Regulations in that they were directed against a mere
preparatory step, it must be concluded that this objection is completely
devoid of merit. Contrary to what Eurocontrol maintains, the purpose
Judgment No. 4592
10
of the complaints was not to contest a ...
- ... the
parties' arguments.
10.
As regards the first objection to receivability raised by
Eurocontrol, in which it argues that the complaint is irreceivable
because the complainant's communications of 12 November and
12 December 2018 did not constitute complaints within the meaning of
the Staff Regulations in that they were directed against a mere
preparatory step, it must be concluded that this objection is completely
devoid of merit. Contrary to what Eurocontrol maintains, the purpose
Judgment No. 4592
10
of the complaints was not to contest a preparatory step in the settlement
of the complainant's pension rights, but to take issue with the negligent
way in which he considered that Eurocontrol had handled his file and
which he alleged had caused him serious injury.
The Tribunal also notes that the objection thus raised by
Eurocontrol is incompatible with the position adopted by the
Organisation itself ...
- ... complaints within the meaning of
the Staff Regulations in that they were directed against a mere
preparatory step, it must be concluded that this objection is completely
devoid of merit. Contrary to what Eurocontrol maintains, the purpose
Judgment No. 4592
10
of the complaints was not to contest a preparatory step in the settlement
of the complainant's pension rights, but to take issue with the negligent
way in which he considered that Eurocontrol had handled his file and
which he alleged had caused him serious injury.
The Tribunal also notes that the objection thus raised by
Eurocontrol is incompatible with the position adopted by the
Organisation itself throughout the procedure. Indeed, in her two internal
memoranda of 31 January 2019, her two subsequent internal memoranda
of 19 February 2019 and in the impugned decision, the Head of Human
Resources not only categorised the complainant's requests as complaints, ...
- ... this objection is completely
devoid of merit. Contrary to what Eurocontrol maintains, the purpose
Judgment No. 4592
10
of the complaints was not to contest a preparatory step in the settlement
of the complainant's pension rights, but to take issue with the negligent
way in which he considered that Eurocontrol had handled his file and
which he alleged had caused him serious injury.
The Tribunal also notes that the objection thus raised by
Eurocontrol is incompatible with the position adopted by the
Organisation itself throughout the procedure. Indeed, in her two internal
memoranda of 31 January 2019, her two subsequent internal memoranda
of 19 February 2019 and in the impugned decision, the Head of Human
Resources not only categorised the complainant's requests as complaints,
but also specified that they were complaints pursuant to Article 92.2 of
the Staff Regulations and that the transmission of the complaints to the ...
- ... memoranda
of 19 February 2019 and in the impugned decision, the Head of Human
Resources not only categorised the complainant's requests as complaints,
but also specified that they were complaints pursuant to Article 92.2 of
the Staff Regulations and that the transmission of the complaints to the
Joint Committee for Disputes constituted a decision upon the claims in
accordance with Judgment 3889 of the Tribunal. What is more, in its
submissions before the Tribunal, Eurocontrol confirms that it treated the
complainant's communications as internal complaints; in its surrejoinder,
the Organisation declares that, shortly before the scheduled meeting of
the Committee, it noted that the issues raised by the complainant in his
internal complaints had been resolved by his acceptance of what it calls
the third offer, which led to the decision of 14 January 2019, and that is
why the complaints were not, in the end, referred to the Committee.
11.
As ...
- ... complaints; in its surrejoinder,
the Organisation declares that, shortly before the scheduled meeting of
the Committee, it noted that the issues raised by the complainant in his
internal complaints had been resolved by his acceptance of what it calls
the third offer, which led to the decision of 14 January 2019, and that is
why the complaints were not, in the end, referred to the Committee.
11.
As regards the second objection to receivability raised by
Eurocontrol, in which it argues that the explanatory statement given by
the Head of Human Resources in the impugned decision of 21 June
2019 did not constitute a decision because it merely confirmed the
earlier final decision of 14 January 2019 concerning the complainant's
unconditional agreement to the transfer of his pension rights from
CAAPS, this objection is also without merit. It is clear from the
complainant's internal complaints of 12 November and 12 December
2018 that the ...
- ... the issues raised therein concerning the Agency's conduct,
the negligent manner in which it handled his request for the transfer of
his pension rights and the injury suffered as a result of the reduction in
the overall sums that he was to receive differed from the subject-matter
of the so-called "final" decision of 14 January 2019, namely the actual
settlement of the complainant's pension rights. In these circumstances,
Judgment No. 4592
11
Eurocontrol clearly cannot argue that the impugned decision was
merely confirmatory in nature.
12.
The Tribunal will also reject Eurocontrol's argument that, as
a consequence, the complainant did not exhaust all internal means of
redress because he did not lodge an internal complaint against the
"final" decision of 14 January 2019. The impugned decision in the
present case is that of 21 June 2019.
13.
Lastly, as regards the third objection to receivability raised by ...
- ... pension rights and the injury suffered as a result of the reduction in
the overall sums that he was to receive differed from the subject-matter
of the so-called "final" decision of 14 January 2019, namely the actual
settlement of the complainant's pension rights. In these circumstances,
Judgment No. 4592
11
Eurocontrol clearly cannot argue that the impugned decision was
merely confirmatory in nature.
12.
The Tribunal will also reject Eurocontrol's argument that, as
a consequence, the complainant did not exhaust all internal means of
redress because he did not lodge an internal complaint against the
"final" decision of 14 January 2019. The impugned decision in the
present case is that of 21 June 2019.
13.
Lastly, as regards the third objection to receivability raised by
Eurocontrol, in which it argues that the complainant no longer has a
cause of action in the context of the present complaint, the Tribunal ...
- ... cannot argue that the impugned decision was
merely confirmatory in nature.
12.
The Tribunal will also reject Eurocontrol's argument that, as
a consequence, the complainant did not exhaust all internal means of
redress because he did not lodge an internal complaint against the
"final" decision of 14 January 2019. The impugned decision in the
present case is that of 21 June 2019.
13.
Lastly, as regards the third objection to receivability raised by
Eurocontrol, in which it argues that the complainant no longer has a
cause of action in the context of the present complaint, the Tribunal
notes that, in view of the subject-matter of the dispute, the existence of
a cause of action can hardly be denied.
14.
As for the complainant's contentions in respect of the
impugned decision of 21 June 2019, he alleges that a procedural defect
renders the decision unlawful and justifies its annulment. In this regard,
the complainant asserts ...
- ... of
a cause of action can hardly be denied.
14.
As for the complainant's contentions in respect of the
impugned decision of 21 June 2019, he alleges that a procedural defect
renders the decision unlawful and justifies its annulment. In this regard,
the complainant asserts that the summary dismissal of his internal
complaints without the opinion of the Joint Committee for Disputes first
being sought breached the provisions of the Staff Regulations by which
Eurocontrol was bound. Eurocontrol acknowledges that the complaints
submitted in November and December 2018 were not passed on to the
Committee, but explains this by saying that the Administration's reasoned
response to those complaints was the decision of 14 January 2019,
which the complainant did not challenge. Eurocontrol maintains that
those complaints became, in all respects, irrelevant and void following
the complainant's acceptance of the "third offer" which led to the
decision ...
- ... can hardly be denied.
14.
As for the complainant's contentions in respect of the
impugned decision of 21 June 2019, he alleges that a procedural defect
renders the decision unlawful and justifies its annulment. In this regard,
the complainant asserts that the summary dismissal of his internal
complaints without the opinion of the Joint Committee for Disputes first
being sought breached the provisions of the Staff Regulations by which
Eurocontrol was bound. Eurocontrol acknowledges that the complaints
submitted in November and December 2018 were not passed on to the
Committee, but explains this by saying that the Administration's reasoned
response to those complaints was the decision of 14 January 2019,
which the complainant did not challenge. Eurocontrol maintains that
those complaints became, in all respects, irrelevant and void following
the complainant's acceptance of the "third offer" which led to the
decision of 14 January 2019. ...
- ... internal
complaints without the opinion of the Joint Committee for Disputes first
being sought breached the provisions of the Staff Regulations by which
Eurocontrol was bound. Eurocontrol acknowledges that the complaints
submitted in November and December 2018 were not passed on to the
Committee, but explains this by saying that the Administration's reasoned
response to those complaints was the decision of 14 January 2019,
which the complainant did not challenge. Eurocontrol maintains that
those complaints became, in all respects, irrelevant and void following
the complainant's acceptance of the "third offer" which led to the
decision of 14 January 2019.
15.
However, according to the settled case law of the Tribunal,
where the rules applicable to an organisation provide for an internal
procedure, that organisation is required to observe and apply those rules
under the principle tu patere legem quam ipse fecisti (see Judgments 4506, ...
- ... of the "third offer" which led to the
decision of 14 January 2019.
15.
However, according to the settled case law of the Tribunal,
where the rules applicable to an organisation provide for an internal
procedure, that organisation is required to observe and apply those rules
under the principle tu patere legem quam ipse fecisti (see Judgments 4506,
consideration 5, and 4310, consideration 9). Given that, in the
aforementioned Office Notice No. 06/11, Eurocontrol specifically
Judgment No. 4592
12
provides that the Joint Committee for Disputes is tasked with giving
advisory opinions on complaints made pursuant to Article 92.2 of the
Staff Regulations, and that, before taking a decision to reject even a part
of such a complaint, the Director General must seek the opinion of that
committee, Eurocontrol could not, as it in fact did, reject the
complainant's complaints without first receiving that opinion, which, ...
- ... 5, and 4310, consideration 9). Given that, in the
aforementioned Office Notice No. 06/11, Eurocontrol specifically
Judgment No. 4592
12
provides that the Joint Committee for Disputes is tasked with giving
advisory opinions on complaints made pursuant to Article 92.2 of the
Staff Regulations, and that, before taking a decision to reject even a part
of such a complaint, the Director General must seek the opinion of that
committee, Eurocontrol could not, as it in fact did, reject the
complainant's complaints without first receiving that opinion, which,
moreover, it had undertaken to obtain in the present case.
By acting as it did, Eurocontrol effectively decided to make its own
finding, without the benefit of such an opinion, that the complainant's
complaint was unfounded and void because of what he had signed on
8 January 2019 and because he had not challenged the final decision of
14 January 2019. The Head ...
- ... for Disputes is tasked with giving
advisory opinions on complaints made pursuant to Article 92.2 of the
Staff Regulations, and that, before taking a decision to reject even a part
of such a complaint, the Director General must seek the opinion of that
committee, Eurocontrol could not, as it in fact did, reject the
complainant's complaints without first receiving that opinion, which,
moreover, it had undertaken to obtain in the present case.
By acting as it did, Eurocontrol effectively decided to make its own
finding, without the benefit of such an opinion, that the complainant's
complaint was unfounded and void because of what he had signed on
8 January 2019 and because he had not challenged the final decision of
14 January 2019. The Head of Human Resources thereby disregarded
an essential safeguard in the right to an internal appeal, from which all
officials of the Organisation are entitled to benefit (see Judgment 4167,
under 3), thus ...
- ... flaw is clearly significant and,
since the decision must be set aside due to its unlawfulness, the case
must be remitted to the Organisation so that the Committee's opinion
can be duly obtained.
19.
Whatever the outcome of the present dispute, the effect of the
failure to examine the complainant's internal complaints was to delay
its final settlement. That failure has in itself caused the complainant
moral injury which will be fairly redressed by ordering Eurocontrol to
pay him compensation of 10,000 euros.
20.
All other claims connected with the alleged unlawfulness of
the impugned decision must for the time being be dismissed in view of
the fact that the case is remitted to the Organisation. It will be for the
competent bodies to address them in the context of that remittal.
21.
The complainant is entitled to costs, which the Tribunal sets
at 7,000 euros, being the amount he claims.
DECISION
For the above reasons, ...
- ... of
the impugned decision must for the time being be dismissed in view of
the fact that the case is remitted to the Organisation. It will be for the
competent bodies to address them in the context of that remittal.
21.
The complainant is entitled to costs, which the Tribunal sets
at 7,000 euros, being the amount he claims.
DECISION
For the above reasons,
1.
The impugned decision of 21 June 2019 is set aside.
2.
The case is remitted to Eurocontrol, in order for the complainant's
internal complaints of 12 November and 12 December 2018 to be
duly examined by the Joint Committee for Disputes.
Judgment No. 4592
14
3.
Eurocontrol shall pay the complainant moral damages in the
amount of 10,000 euros.
4.
The Organisation shall also pay him costs in the amount of
7,000 euros.
5.
All other claims are dismissed.
In witness of this judgment, adopted on 16 November 2022,
Mr ...
- ...
21.
The complainant is entitled to costs, which the Tribunal sets
at 7,000 euros, being the amount he claims.
DECISION
For the above reasons,
1.
The impugned decision of 21 June 2019 is set aside.
2.
The case is remitted to Eurocontrol, in order for the complainant's
internal complaints of 12 November and 12 December 2018 to be
duly examined by the Joint Committee for Disputes.
Judgment No. 4592
14
3.
Eurocontrol shall pay the complainant moral damages in the
amount of 10,000 euros.
4.
The Organisation shall also pay him costs in the amount of
7,000 euros.
5.
All other claims are dismissed.
In witness of this judgment, adopted on 16 November 2022,
Mr Patrick Frydman, Vice-President of the Tribunal, Mr Jacques
Jaumotte, Judge, and Mr Clément Gascon, Judge, sign below, as do I,
Dražen Petrovic, Registrar.
Delivered on 1 February 2023 by video recording posted ...
- Judgment 4591
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the reduction in the amount of his functional allowance calculated in proportion to the reduction in his working hours.
- ... Eurocontrol
135th Session Judgment No. 4591
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr L. P. D. R. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 July 2018, Eurocontrol's reply of 19 October 2018, the
complainant's rejoinder of 6 December 2018 and Eurocontrol's
surrejoinder of 5 April 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol)
on 10 July 2018, Eurocontrol's reply of 19 October 2018, the
complainant's rejoinder of 6 December 2018 and Eurocontrol's
surrejoinder of 5 April 2019;
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 reduction in the ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D. R. (No. 3)
v.
Eurocontrol
135th Session Judgment No. 4591
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr L. P. D. R. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 July 2018, Eurocontrol's reply of 19 October 2018, the
complainant's rejoinder of 6 December 2018 and Eurocontrol's
surrejoinder of 5 April 2019;
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 reduction in the amount of his
functional allowance ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
D. R. (No. 3)
v.
Eurocontrol
135th Session Judgment No. 4591
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr L. P. D. R. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 10 July 2018, Eurocontrol's reply of 19 October 2018, the
complainant's rejoinder of 6 December 2018 and Eurocontrol's
surrejoinder of 5 April 2019;
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 reduction in the amount of his
functional allowance calculated in proportion to the reduction in his
working hours.
The complainant ...
- ... of 5 April 2019;
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 reduction in the amount of his
functional allowance calculated in proportion to the reduction in his
working hours.
The complainant has been a Eurocontrol staff member since 1991.
He is employed in the Network Management Directorate (NMD, formerly
CFMU) within Group E1. As such, he is subject to rolling stand-by duty
at home on a roster basis. Under the terms of his employment, he
receives an air traffic flow and capacity management functional
allowance (hereinafter the "ATFCM allowance"), set at 30 per cent of
a basic amount, which at the material time was 1,469.15 euros. On
5 April 2017 the complainant applied for permission ...
- ... September 2017 onwards. He further seeks compensation
of 25,000 euros for the moral injury he alleges he has suffered, of which
5,000 euros are to compensate for the delay in handling his internal
complaint, and an award of 6,000 euros in costs. Subsidiarily, the
complainant asks the Tribunal to order that the amounts withheld in
respect of his retirement benefit contributions be recalculated on the
basis of the amount of the ATFCM allowance actually paid to him.
Eurocontrol asks the Tribunal to dismiss the complaint as partly
irreceivable and entirely unfounded.
Judgment No. 4591
3
CONSIDERATIONS
1.
In addition to the setting aside of the impugned decision, the
complainant asks the Tribunal to order:
- that the whole of the ATFCM allowance (in other words, 30 per
cent of the basic amount) be paid retroactively from September
2017 onwards;
- subsidiarily, that the amounts withheld in respect of his ...
- ... allowance payable
to him under the relevant provisions was not subject to reduction in the
event of a change to his working hours. The "flat-rate" nature of the
allowance effectively means that it is an amount that is neither divisible
nor adjustable.
3.
The relevant provisions applicable to this case can be
summarised as follows.
Judgment No. 4591
4
Under Article 69b(2) of the Staff Regulations governing officials
of the Eurocontrol Agency, "[o]fficials in the NM Operational Staff
Service shall receive an ATFCM allowance, subject to the conditions
laid down in a Rule of Application of the Director General. This
allowance shall give entitlement to a pension, under the conditions
governing the pension scheme set out in the Staff Regulations. It shall
be taken into account for the transfer of pension rights."
Pursuant to the aforementioned provision, Rule of Application
No. 29a concerning the function ...
- ... Article 3, as
applicable at the time of the material facts:
"Article 3
1. Pursuant to Article 69b, paragraph 2 [of the Staff Regulations],
officials in the NM Operational Staff Service shall receive an ATFCM
allowance set at a basic amount of 1,469.15 euros [amount applicable
at the material time in this case, as revised annually].
The amount of this allowance shall be adjusted as provided for in
Article 65 of the Staff Regulations governing Officials of the
EUROCONTROL Agency [a provision without relevance to the
present dispute]. This allowance shall be paid monthly and the cost-of
living weighting pertaining to the official's salary shall be applied.
2. The basic amounts mentioned above shall vary in line with the
constraints attaching to the post held as set out below. The resultant
rate shall be identical, irrespective of the recipient's grade.
2.1 For officials assigned to a post in group E1 who work rolling shifts,
the rate shall ...
- ... authorised, to a
percentage of his remuneration corresponding to the percentage of the
normal time worked. However, the percentage shall not be applied to
the dependent child allowance, the basic amount of the household
allowance or the education allowance. [...]" This exhaustive list of
exceptions does not, therefore, refer to the ATFCM allowance.
Furthermore, exercising the authority conferred on him by Article 69b
of the Staff Regulations, the Director General of Eurocontrol, in Office
Notice No. 17/06 of 18 October 2006, entitled "Revision of the conditions
of employment of CFMU [for which, now read NMD] operational
staff", explained the following with regard to the creation of the new
ATFCM allowance:
Judgment No. 4591
6
"Annex 1
2.1 It is intended to compensate, on a flat-rate basis, for the constraints
resulting from the unusual working conditions associated with CFMU
[for which, now read NMD] operational ...
- Judgment 4514
134th Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s decision to put an end, with retroactive effect, to the top-up sickness insurance cover received by his wife and, consequently, to recover the sums unduly paid by Eurocontrol under that cover.
- ... Eurocontrol
134th Session Judgment No. 4514
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr R. v. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 21 June 2018, Eurocontrol's reply of 4 October, the complainant's
rejoinder of 13 November 2018 and Eurocontrol's surrejoinder of
22 February 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... Eurocontrol)
on 21 June 2018, Eurocontrol's reply of 4 October, the complainant's
rejoinder of 13 November 2018 and Eurocontrol's surrejoinder of
22 February 2019;
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 decision ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
v. Z. (No. 3)
v.
Eurocontrol
134th Session Judgment No. 4514
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr R. v. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 21 June 2018, Eurocontrol's reply of 4 October, the complainant's
rejoinder of 13 November 2018 and Eurocontrol's surrejoinder of
22 February 2019;
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 decision to put an end,
with retroactive ...
- ... Tribunal
Registry's translation,
the French text alone
being authoritative.
v. Z. (No. 3)
v.
Eurocontrol
134th Session Judgment No. 4514
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the third complaint filed by Mr R. v. Z. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 21 June 2018, Eurocontrol's reply of 4 October, the complainant's
rejoinder of 13 November 2018 and Eurocontrol's surrejoinder of
22 February 2019;
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 decision to put an end,
with retroactive effect, to the top-up sickness insurance cover received
by his wife and, consequently, ...
- ... (Eurocontrol)
on 21 June 2018, Eurocontrol's reply of 4 October, the complainant's
rejoinder of 13 November 2018 and Eurocontrol's surrejoinder of
22 February 2019;
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 decision to put an end,
with retroactive effect, to the top-up sickness insurance cover received
by his wife and, consequently, to recover the sums unduly paid by
Eurocontrol under that cover.
In 2014 the complainant notified the administration of changes in
his family situation, which led to an update of his entitlement to family
allowances and sickness insurance cover for his dependants. On
6 August 2014 he was informed that, as his wife's income was higher
than ...
- ... 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 decision to put an end,
with retroactive effect, to the top-up sickness insurance cover received
by his wife and, consequently, to recover the sums unduly paid by
Eurocontrol under that cover.
In 2014 the complainant notified the administration of changes in
his family situation, which led to an update of his entitlement to family
allowances and sickness insurance cover for his dependants. On
6 August 2014 he was informed that, as his wife's income was higher
than the equivalent of the annual basic salary of an official in the first
step of grade 2, it had been decided to terminate her top-up sickness
insurance cover as of 1 November 2013. ...
- ... the elements of pay, and, secondly
establishing the same definition of spouse's income from gainful
employment for the two abovementioned Rules of Application, the
complainant's internal complaint concerning the grant of the household
allowance should be allowed. On 17 December 2014, the complainant
was informed that this allowance was granted to his wife with effect
from 1 November 2013.
Judgment No. 4514
3
On 4 February 2016 Eurocontrol issued Information to Staff
No. I.16/01, the aim of which was to publish the ceilings for the spouse's
taxable income referred to in Article 1(3) of Rule of Application No. 7
and some of its implementing provisions, which were to be taken into
account in determining entitlement to household allowance when a staff
member had no dependent children and/or a spouse's entitlement to
receive Eurocontrol's top-up sickness insurance cover. This information
note invited staff ...
- ...
Judgment No. 4514
3
On 4 February 2016 Eurocontrol issued Information to Staff
No. I.16/01, the aim of which was to publish the ceilings for the spouse's
taxable income referred to in Article 1(3) of Rule of Application No. 7
and some of its implementing provisions, which were to be taken into
account in determining entitlement to household allowance when a staff
member had no dependent children and/or a spouse's entitlement to
receive Eurocontrol's top-up sickness insurance cover. This information
note invited staff members without dependent children who were in
receipt of the household allowance to submit their spouse's latest official
annual notice of assessment. Concerning top-up sickness insurance
cover, the staff members concerned were requested to indicate any
change to their spouse's income from gainful employment. On 28 April
the complainant informed the administration of his wife's income for
2014 in ...
- ... was higher than the
ceiling specified in the aforementioned Information to Staff. By an
internal memorandum dated 17 April 2018, the complainant was
notified that the Principal Director of Resources endorsed the latter
opinion and that his internal complaint was therefore dismissed. That is
the impugned decision.
The complainant seeks the setting aside of the decision of 17 April
2018 and of all the previous decisions. In addition, he asks the Tribunal
to order Eurocontrol to reimburse any sums recovered following the
decision of 17 April 2018 and to reinstate top-up sickness insurance
cover for his wife, with retroactive effect from 1 August 2016. Lastly,
he claims moral damages in the amount of 30,000 euros, of which
5,000 euros are to compensate for the delay in handling his internal
complaint, and an award of 6,000 euros in costs.
Eurocontrol requests the Tribunal to dismiss the complainant's
claims as partly irreceivable, since the ...
- ...
2018 and of all the previous decisions. In addition, he asks the Tribunal
to order Eurocontrol to reimburse any sums recovered following the
decision of 17 April 2018 and to reinstate top-up sickness insurance
cover for his wife, with retroactive effect from 1 August 2016. Lastly,
he claims moral damages in the amount of 30,000 euros, of which
5,000 euros are to compensate for the delay in handling his internal
complaint, and an award of 6,000 euros in costs.
Eurocontrol requests the Tribunal to dismiss the complainant's
claims as partly irreceivable, since the claim concerning restoration of
top-up sickness insurance cover goes beyond the scope of the dispute,
and as wholly unfounded in any event.
CONSIDERATIONS
1.
The dispute before the Tribunal concerns the decision of
17 April 2018, confirming the decision of 1 August 2016, by which the
top-up sickness insurance cover for the complainant's wife was
withdrawn with retroactive ...
- ... 2011 and it was
specified that the amounts of medical expenses unduly reimbursed
between 1 January 2011 and 31 December 2014 would be recovered.
The evidence submitted by the parties shows that top-up sickness
insurance cover was again granted to the complainant's wife on
12 March 2015, with retroactive effect from 1 January 2015, because
her income had fallen below the ceiling laid down in the applicable
rules following her move to part-time work. According to Eurocontrol,
a total of 3,362.71 euros had to be recovered by way of sums unduly
Judgment No. 4514
5
reimbursed between 1 January 2011 and 31 December 2014 under the
top-up sickness insurance cover of the complainant's wife.
The Tribunal will examine the complaint having regard to this
limited scope.
Eurocontrol's objection to receivability, that the complainant's
claim for "sickness insurance cover to be restored to [his] wife [...] with
retroactive ...
- ... because
her income had fallen below the ceiling laid down in the applicable
rules following her move to part-time work. According to Eurocontrol,
a total of 3,362.71 euros had to be recovered by way of sums unduly
Judgment No. 4514
5
reimbursed between 1 January 2011 and 31 December 2014 under the
top-up sickness insurance cover of the complainant's wife.
The Tribunal will examine the complaint having regard to this
limited scope.
Eurocontrol's objection to receivability, that the complainant's
claim for "sickness insurance cover to be restored to [his] wife [...] with
retroactive effect from 1 August 2016" goes beyond the scope of the
impugned decision, is therefore accepted.
2.
In support of his complaint, the complainant submits that
Eurocontrol miscalculated his wife's annual taxable income for the
purposes of the ceiling laid down in Article 14(1) of Rule of Application
No. 10 concerning sickness ...
- ... the
top-up sickness insurance cover of the complainant's wife.
The Tribunal will examine the complaint having regard to this
limited scope.
Eurocontrol's objection to receivability, that the complainant's
claim for "sickness insurance cover to be restored to [his] wife [...] with
retroactive effect from 1 August 2016" goes beyond the scope of the
impugned decision, is therefore accepted.
2.
In support of his complaint, the complainant submits that
Eurocontrol miscalculated his wife's annual taxable income for the
purposes of the ceiling laid down in Article 14(1) of Rule of Application
No. 10 concerning sickness insurance cover. For each of the years under
consideration, the Organisation failed to take into account the amount
of the tax-exempt portions, as provided for under Belgian tax law.
According to the complainant, if those exempted portions are subtracted
from his wife's annual taxable income, it can be clearly seen that ...
- ...
No. 10 concerning sickness insurance cover. For each of the years under
consideration, the Organisation failed to take into account the amount
of the tax-exempt portions, as provided for under Belgian tax law.
According to the complainant, if those exempted portions are subtracted
from his wife's annual taxable income, it can be clearly seen that annual
income was, in each of the years in question, below the ceiling set by
the abovementioned provision.
Eurocontrol, which did not in fact take account of these tax-exempt
portions, observes that the complainant merely refers to a personal
calculation and does not provide any explanation such as to establish
that the amounts contained in the notices of assessment/extracts from the
roll issued by the Belgian tax authorities are incorrect. The Organisation
also observes that the notices of assessment/extracts from the roll issued
by the Belgian tax authorities are very clear on this point: ...
- ... that
Judgment No. 4514
6
must be taken into account for the purposes of granting top-up sickness
insurance cover.
In this case, the dispute turns on whether the tax-exempt portions
provided for in Belgian tax law, as well as the social welfare
contributions and professional charges referred to in this provision,
should be deducted from the income from gainful employment of the
complainant's wife. The complainant argues that they should; Eurocontrol
disagrees.
4.
As is clear from the internal memorandum of the Head of the
Regulations and Rules Unit of 20 November 2014, firstly, Eurocontrol
bases its position on the fact that the provisions in force within the
Organisation in this area are modelled, in principle, on those applicable
to officials of the institutions of the European Union. Secondly, the
European Council and Commission have defined the spouse's income
from gainful employment in an internal ...
- ... case, the dispute turns on whether the tax-exempt portions
provided for in Belgian tax law, as well as the social welfare
contributions and professional charges referred to in this provision,
should be deducted from the income from gainful employment of the
complainant's wife. The complainant argues that they should; Eurocontrol
disagrees.
4.
As is clear from the internal memorandum of the Head of the
Regulations and Rules Unit of 20 November 2014, firstly, Eurocontrol
bases its position on the fact that the provisions in force within the
Organisation in this area are modelled, in principle, on those applicable
to officials of the institutions of the European Union. Secondly, the
European Council and Commission have defined the spouse's income
from gainful employment in an internal directive as taxable income as
determined by the national authorities, that is to say, after deduction of
social welfare contributions and professional charges. ...
- ... Union. Secondly, the
European Council and Commission have defined the spouse's income
from gainful employment in an internal directive as taxable income as
determined by the national authorities, that is to say, after deduction of
social welfare contributions and professional charges. Furthermore, in
his internal memorandum of 17 April 2018, the Principal Director of
Resources stated that the calculations performed by each tax authority
in each Member State of Eurocontrol should not be taken into account.
Similarly, Information to Staff No. I.16/01 of 4 February 2016 concerning
household allowance and/or top-up sickness insurance cover reiterates
that this income is to be taken into account "before deduction of tax
but after deduction of social security contributions and occupational
expenses".
5.
On examining a sample notice of assessment/extract from the
roll issued each year by the Belgian tax authorities, the Tribunal notes ...
- ... from movable
property. It is only after total taxable income has been determined that
total taxation is calculated; in this calculation, a portion of total taxable
income, and not only of taxable income from gainful employment, is
Judgment No. 4514
7
deducted from the tax base, resulting in a tax reduction. In the same
document, basic tax is calculated before the tax reduction is deducted
in respect of the exempt portions. It follows that Eurocontrol's
interpretation, according to which the tax-exempt portion of the taxable
income from gainful employment of the complainant's wife should not
be deducted, is correct. There is no need for Eurocontrol to also take
into account the various tax exemptions or reductions granted under
each national law, after the determination of taxable income from
gainful employment.
Furthermore, the complainant's interpretation would lead to the
conclusion that a portion of income ...
- ... from gainful employment, is
Judgment No. 4514
7
deducted from the tax base, resulting in a tax reduction. In the same
document, basic tax is calculated before the tax reduction is deducted
in respect of the exempt portions. It follows that Eurocontrol's
interpretation, according to which the tax-exempt portion of the taxable
income from gainful employment of the complainant's wife should not
be deducted, is correct. There is no need for Eurocontrol to also take
into account the various tax exemptions or reductions granted under
each national law, after the determination of taxable income from
gainful employment.
Furthermore, the complainant's interpretation would lead to the
conclusion that a portion of income from gainful employment, though
taken into account for calculating taxable income from gainful
employment, should then be deducted from that income when reckoning
the ceiling applicable to his wife's taxable ...
- ...
employment, should then be deducted from that income when reckoning
the ceiling applicable to his wife's taxable income from gainful
employment, which would lead to the absurd situation in which an
amount, after having been taken into account for the determination of
taxable income from gainful employment, would then be subtracted from
it. That cannot be the intention of Article 14(1) of Rule of Application
No. 10.
6.
In the light of the foregoing, Eurocontrol was right to
consider that the taxable income from gainful employment of the
complainant's wife for 2011 (40,270.55 euros), 2012 (42,747.90 euros),
2013 (43,708.30 euros) and 2014 (41,275.55 euros), after social welfare
contributions and professional expenses were deducted, was higher than
the ceilings applicable for those years, namely 2011 (36,648.84 euros),
2012 (37,271.88 euros), 2013 (37,309.20 euros) and 2014 (38,130.00 euros).
The complainant's plea is therefore ...
- ... the complainant also argues that the conditions laid
down in Article 87 of the Staff Regulations for the recovery of undue
payment are not met in the present case. Firstly, he was not aware that
there was no due reason for the sums paid under his wife's top-up
sickness insurance cover. Secondly, the irregularity or error leading to
Judgment No. 4514
8
these payments was not patently such that he could not have been
unaware of it.
Eurocontrol submits that the complainant's argument reflects bad
faith, given, in particular, his thorough knowledge of the applicable
rules in his capacity as a representative of the Organisation's staff, as
well as of the authorised annual ceilings, which he must have noticed
had been exceeded.
8.
Article 87 of the Staff Regulations, concerning the recovery
of undue payment, provides, in the first paragraph, that "[a]ny sum
overpaid shall be recovered if the recipient was ...
- ... the recipient was aware that there was no
due reason for the payment or if the fact of the overpayment was
patently such that he could not have been unaware of it".
That provision makes it clear that, as an exception to the general
principle of law according to which any sum paid in error may usually be
recovered, subject to the rules on limitation periods (see, for example,
Judgment 4139, consideration 14, and the case law cited therein),
where a member of staff of Eurocontrol has received an undue payment,
such recovery is not possible unless one of the two conditions set out
therein is satisfied, namely that the official concerned was aware that
there was no due reason for the payment or the fact of the overpayment
was patent.
9.
Regarding the first condition, it should firstly be observed
that the decision of 17 December 2014 did not explicitly inform the
complainant that it had been duly found that his wife's income from
gainful ...
- ... of the payments made between
1 November 2013 and 31 December 2014. This is especially true since,
Judgment No. 4514
9
as the complainant stated in his internal complaint of 27 October 2016,
no response was ever received to his request "to know the calculation
method applied and the amounts of income taken into account". By
extension, it must be considered that the same applies to the period from
1 January 2011 to 31 October 2013. Whilst Eurocontrol criticises the
complainant for not having provided, for each of the years at issue and
before the end of the first half of each of those years, proof of income
received by his spouse for the previous fiscal or calendar year, in breach
of the requirement laid down in Article 14(2) of Rule of Application
No. 10, the Tribunal considers that the complainant's failure to provide
such proof is very largely counterbalanced by the fact that Eurocontrol
did not request such proof ...
- ... 31 October 2013. Whilst Eurocontrol criticises the
complainant for not having provided, for each of the years at issue and
before the end of the first half of each of those years, proof of income
received by his spouse for the previous fiscal or calendar year, in breach
of the requirement laid down in Article 14(2) of Rule of Application
No. 10, the Tribunal considers that the complainant's failure to provide
such proof is very largely counterbalanced by the fact that Eurocontrol
did not request such proof on its own initiative when it examined the
complainant's situation in 2014. Indeed, it was only in 2016, during a
review of payment of the household allowance for 2016, that Eurocontrol
requested the production of this proof for 2011 to 2013, following which
it also took a decision, on 1 August 2016, regarding top-up sickness
insurance cover for the complainant's wife. Moreover, paragraph 3 of
Information to Staff No. I.16/01 concerning household ...
- ... spouse for the previous fiscal or calendar year, in breach
of the requirement laid down in Article 14(2) of Rule of Application
No. 10, the Tribunal considers that the complainant's failure to provide
such proof is very largely counterbalanced by the fact that Eurocontrol
did not request such proof on its own initiative when it examined the
complainant's situation in 2014. Indeed, it was only in 2016, during a
review of payment of the household allowance for 2016, that Eurocontrol
requested the production of this proof for 2011 to 2013, following which
it also took a decision, on 1 August 2016, regarding top-up sickness
insurance cover for the complainant's wife. Moreover, paragraph 3 of
Information to Staff No. I.16/01 concerning household allowance and/or
top-up sickness insurance cover states, firstly, that any staff members
concerned must report any change in their spouse's income from
gainful employment and, secondly, that in the event of ...
- ... following which
it also took a decision, on 1 August 2016, regarding top-up sickness
insurance cover for the complainant's wife. Moreover, paragraph 3 of
Information to Staff No. I.16/01 concerning household allowance and/or
top-up sickness insurance cover states, firstly, that any staff members
concerned must report any change in their spouse's income from
gainful employment and, secondly, that in the event of the checks that
could be carried out at any time by Eurocontrol, staff members whose
spouses received top-up sickness insurance cover were invited to
provide notices of assessment relating to their spouse's income. This is
precisely what the complainant did in 2016, when the administration
carried out a check, whereas nothing of the kind appears to have been
requested of him in 2014.
As a result, the Tribunal finds that it cannot be considered that the
complainant was aware of the unlawful nature of these payments. The first
condition ...
- ... its significance and
Judgment No. 4514
10
determining its causes, it could not have reasonably escaped the notice
of a [...] staff member exercising ordinary diligence in the management
of [her or his] personal affairs" (see Judgments 3201, consideration 14
in fine, and 4469, consideration 6). This interpretation will also be used
as a basis for examining the arguments of the parties in the present case.
In this respect, it should be noted that Eurocontrol itself expressly
acknowledged in 2014 that the applicable provisions in this area
required clarification regarding the determination of the amount of the
spouse's income from gainful employment to be taken into account, in
particular for the purposes of assessing whether to grant the household
allowance. Moreover, it was only in August 2016 that Eurocontrol, after
a further examination of the complainant's situation during a review of
payment of the household allowance ...
- ... a basis for examining the arguments of the parties in the present case.
In this respect, it should be noted that Eurocontrol itself expressly
acknowledged in 2014 that the applicable provisions in this area
required clarification regarding the determination of the amount of the
spouse's income from gainful employment to be taken into account, in
particular for the purposes of assessing whether to grant the household
allowance. Moreover, it was only in August 2016 that Eurocontrol, after
a further examination of the complainant's situation during a review of
payment of the household allowance for 2016, decided, on the basis of the
interpretation of the concept of taxable income from gainful employment
referred to above, to recover the reimbursements of medical expenses
made from 1 January 2011 to 31 December 2014 in respect of the
complainant's wife. Such a decision could have been taken in 2014 if
this interpretation had obviously applied at the ...
- ...
11.
Since neither of the conditions to which Article 87 of the Staff
Regulations subjects the possibility of recovering undue payments is
met, the decision of 17 April 2018 and the decision of the Head of PFO
of 1 August 2016 are unlawful and must therefore be set aside, without
there being any need to examine the complainant's other pleas.
12.
In compensation for material injury, the complainant seeks
reimbursement of any sums recovered by Eurocontrol that relate to his
wife's top-up sickness insurance cover for the period in question.
Eurocontrol states that the procedure for recovery of undue payment
was suspended while the complainant's internal complaint was being
examined. However, the Organisation is silent on the question of whether
such recovery took place following the final decision of 17 April 2018
impugned before the Tribunal.
13.
In these circumstances, the Tribunal considers it appropriate
to ...
- ... subjects the possibility of recovering undue payments is
met, the decision of 17 April 2018 and the decision of the Head of PFO
of 1 August 2016 are unlawful and must therefore be set aside, without
there being any need to examine the complainant's other pleas.
12.
In compensation for material injury, the complainant seeks
reimbursement of any sums recovered by Eurocontrol that relate to his
wife's top-up sickness insurance cover for the period in question.
Eurocontrol states that the procedure for recovery of undue payment
was suspended while the complainant's internal complaint was being
examined. However, the Organisation is silent on the question of whether
such recovery took place following the final decision of 17 April 2018
impugned before the Tribunal.
13.
In these circumstances, the Tribunal considers it appropriate
to order, insofar as recovery has taken place, the reimbursement to the
complainant of the amounts withheld ...
- ... the procedure for recovery of undue payment
was suspended while the complainant's internal complaint was being
examined. However, the Organisation is silent on the question of whether
such recovery took place following the final decision of 17 April 2018
impugned before the Tribunal.
13.
In these circumstances, the Tribunal considers it appropriate
to order, insofar as recovery has taken place, the reimbursement to the
complainant of the amounts withheld by Eurocontrol in respect of his
wife's top-up sickness insurance cover for 2011 to 2014, that is to say,
a total sum of 3,362.71 euros.
14.
Regarding moral damages, the Tribunal considers that the
cancellation of the recovery of the sum in question is sufficient, in the
present case, to compensate the complainant for all the injury he suffered.
15.
The complainant also claims an award of 5,000 euros in moral
damages for the delay in handling his internal complaint.
The ...
- ... caused the complainant
moral injury in the circumstances of the case, since it is clear from the
file that recovery of the undue payment was suspended during the
internal appeal procedure.
Judgment No. 4514
12
16.
As the complainant succeeds for the most part, he is entitled
to costs, which the Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The decision of the Principal Director of Resources of Eurocontrol
of 17 April 2018 and the decision of the Head of People and
Finance Operations of 1 August 2016 are set aside insofar as they
provided for the recovery of reimbursements of medical expenses
under the top-up sickness insurance cover of the complainant's
wife during the period 1 January 2011 to 31 December 2014.
2.
Eurocontrol shall, if appropriate, repay to the complainant the sum
of 3,362.71 euros, as indicated in consideration 13, above.
3.
The Organisation ...
- ... Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The decision of the Principal Director of Resources of Eurocontrol
of 17 April 2018 and the decision of the Head of People and
Finance Operations of 1 August 2016 are set aside insofar as they
provided for the recovery of reimbursements of medical expenses
under the top-up sickness insurance cover of the complainant's
wife during the period 1 January 2011 to 31 December 2014.
2.
Eurocontrol shall, if appropriate, repay to the complainant the sum
of 3,362.71 euros, as indicated in consideration 13, above.
3.
The Organisation shall pay the complainant 3,000 euros in costs.
4.
All other claims are dismissed.
In witness of this judgment, adopted on 11 May 2022, Mr Patrick
Frydman, Vice-President of the Tribunal, Mr Jacques Jaumotte, Judge,
and Mr Clément Gascon, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered on 6 July 2022 ...
- Judgment 4513
134th Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to convert his appointment as a graduate when it expired and to terminate it.
- ... Eurocontrol
134th Session Judgment No. 4513
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr É. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
27 November 2018, Eurocontrol's reply of 18 March 2019, the
complainant's rejoinder of 7 June and Eurocontrol's surrejoinder of
18 September 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written ...
- ... Eurocontrol) on
27 November 2018, Eurocontrol's reply of 18 March 2019, the
complainant's rejoinder of 7 June and Eurocontrol's surrejoinder of
18 September 2019;
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 not to convert ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
B.
v.
Eurocontrol
134th Session Judgment No. 4513
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr É. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
27 November 2018, Eurocontrol's reply of 18 March 2019, the
complainant's rejoinder of 7 June and Eurocontrol's surrejoinder of
18 September 2019;
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 not to convert his appointment
as a graduate ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
B.
v.
Eurocontrol
134th Session Judgment No. 4513
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr É. B. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
27 November 2018, Eurocontrol's reply of 18 March 2019, the
complainant's rejoinder of 7 June and Eurocontrol's surrejoinder of
18 September 2019;
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 not to convert his appointment
as a graduate when it expired and to terminate it.
On 1 December 2013 the complainant was appointed ...
- ... of
18 September 2019;
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 not to convert his appointment
as a graduate when it expired and to terminate it.
On 1 December 2013 the complainant was appointed by Eurocontrol
as a graduate official at grade AD5. Pursuant to Annex Xa to the Staff
Regulations governing officials of the Eurocontrol Agency - which
contains the special provisions of the Staff Regulations applicable to
graduates - his appointment was for an initial period of 25 months,
including a probation period of 13 months. The complainant was to be
successively assigned to different services during the various phases of
his appointment (induction period, probation period and ...
- ... 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 not to convert his appointment
as a graduate when it expired and to terminate it.
On 1 December 2013 the complainant was appointed by Eurocontrol
as a graduate official at grade AD5. Pursuant to Annex Xa to the Staff
Regulations governing officials of the Eurocontrol Agency - which
contains the special provisions of the Staff Regulations applicable to
graduates - his appointment was for an initial period of 25 months,
including a probation period of 13 months. The complainant was to be
successively assigned to different services during the various phases of
his appointment (induction period, probation period and periods of
extension of appointment as a graduate) and, should he successfully
Judgment No. 4513
2 ...
- ... the service
had expressed a need for staff with the complainant's profile, he had an
expectation that his appointment would be converted. All the members
of the Committee recommended that the complainant's legal fees be
reimbursed and considered that the administration was required to
initiate a harassment procedure under Rule of Application No. 40.
By a letter of 4 October 2018, which constitutes the impugned
decision, the Head of Human Resources and Services at Eurocontrol
informed the complainant that she had decided, for the Director General
and by delegation, to reject his internal complaint as unfounded. She
reviewed the complainant's entire assessment process in detail and
considered that the decision not to convert his appointment was lawful
and duly justified. With regard to the complainant's allegations of
harassment, he was told that the head of the service in charge of
psychosocial risks would contact him.
The complainant ...
- ... to set aside the impugned
decision and to order his reinstatement and the payment of the salary
difference for the period between 31 December 2017 and the date of his
reinstatement, or, alternatively, to award him 236,309.40 euros in
material damages. In any event, he claims the same amount in moral
damages under all heads, compensation in the amount of 8,000 euros
for the delay in dealing with his internal complaint and costs in the
amount of 7,000 euros.
Eurocontrol requests the Tribunal to dismiss the complaint as
unfounded.
CONSIDERATIONS
1.
The dispute mainly turns on compliance, in the present case, with
the provisions applicable within Eurocontrol concerning the appraisal
of a graduate's probation period and performance.
Judgment No. 4513
4
2.
The relevant provisions are the following.
Articles 2, 3, 5 and 6 of Annex Xa to the Staff Regulations, entitled
"Special provisions of the ...
- ... to award him 236,309.40 euros in
material damages. In any event, he claims the same amount in moral
damages under all heads, compensation in the amount of 8,000 euros
for the delay in dealing with his internal complaint and costs in the
amount of 7,000 euros.
Eurocontrol requests the Tribunal to dismiss the complaint as
unfounded.
CONSIDERATIONS
1.
The dispute mainly turns on compliance, in the present case, with
the provisions applicable within Eurocontrol concerning the appraisal
of a graduate's probation period and performance.
Judgment No. 4513
4
2.
The relevant provisions are the following.
Articles 2, 3, 5 and 6 of Annex Xa to the Staff Regulations, entitled
"Special provisions of the Staff Regulations applicable to graduates
appointed as officials for a limited period", in its 2013 version applicable
to the present dispute, provide, in relevant part, as follows:
"Article 2
Recruitment ...
- ... 3 of
Annex Xa.
The notice period in case of termination of the appointment shall be the date
defined in Article 3, paragraph 6 of Annex Xa to the Staff Regulations.
If the Director General's decision is negative, the official's contract shall be
terminated at the end of the appointment period pursuant to the provisions
laid down in Annex Xa to the Staff Regulations."
3.
Firstly, the complainant alleges various breaches of the rules
applicable within Eurocontrol concerning the assessment of the
performance of a staff member recruited as a graduate.
While his performance was assessed from 2014 to mid-2017, the
complainant submits that the appraisal was very positive for 2014 and
the first half of 2017, but that the Performance Board's opinion of
30 October 2017, which formed the basis of the Director General's
decision taken that same day, mainly drew on the negative appraisals
of his performance for 2015 and 2016. In his view, ...
- ... was assessed from 2014 to mid-2017, the
complainant submits that the appraisal was very positive for 2014 and
the first half of 2017, but that the Performance Board's opinion of
30 October 2017, which formed the basis of the Director General's
decision taken that same day, mainly drew on the negative appraisals
of his performance for 2015 and 2016. In his view, the assessment of
his performance during those two years was affected by serious
shortcomings on Eurocontrol's part.
Regarding 2015, the complainant submits that no appraisal was
carried out, in breach of the relevant rules. According to him, during
that period, no intermediate or final appraisal report was drawn up; no
objectives were set for him; no monitoring was carried out by the host
managers and the mentor concerned; and no opinion was issued by the
Performance Board, which did not meet and did not hear him.
Judgment No. 4513
15
The complainant ...
- ... of his performance in 2016. Although it is true that, this time,
a final report was drawn up, the complainant submits that it has no
evidential value because it was drawn up retrospectively for purely
formal reasons and is not based on any tangible objectives that had been
previously set.
He infers from this that when he was assigned specific tasks and
properly monitored in accordance with the relevant rules, his objectives
were fully achieved.
4.
Eurocontrol acknowledges that no written appraisal report
was drawn up for 2015. However, it points out that, as regards that year,
the Performance Board met on 23 October 2015 and concluded, on
the basis of a positive appraisal by one of the four host managers
responsible for that reference period, not to convert the complainant's
appointment into an appointment for an undetermined period or at least
into a limited-term appointment but to renew it for a 12-month period. A
decision ...
- ... basis of a positive appraisal by one of the four host managers
responsible for that reference period, not to convert the complainant's
appointment into an appointment for an undetermined period or at least
into a limited-term appointment but to renew it for a 12-month period. A
decision was, moreover, taken on 1 December 2015 and the complainant's
appointment as a graduate was extended for a further 12 months, from
1 January 2016 to 31 December 2016.
Regarding 2016, Eurocontrol acknowledges that the appraisal
report was finalised late, but states that the Performance Board met in
September 2016 to assess the complainant's overall performance during
the first three years of his service, after reviewing the information
provided by his host managers for 2014, 2015 and 2016. It was in those
circumstances that a majority of the members of the Performance Board
decided not to recommend that the complainant's appointment be
converted.
5.
Under ...
- ... appraisal of the complainant's performance for the
first half of 2017 had been considered positive.
The complainant's plea is therefore well founded.
6.
The Tribunal notes, however, that, pursuant to Article 6 of
Annex Xa to the Staff Regulations, conversion of an appointment as a
graduate may be considered only if, at the time when that decision is to
be taken, such a conversion is warranted by the Organisation's staffing
needs.
7.
In that regard, Eurocontrol submits that it was not, and still is not,
in a position to offer the complainant a job matching the Organisation's
requirements.
8.
However, the Tribunal observes that the reasoning behind
both the decision initially taken by the Director General on 30 October
2017 and the one he took, after the internal appeal procedure, on
4 October 2018 is not based on whether the Organisation needed at that
point to secure the services of a person with the complainant's profile, ...
- ... a job matching the Organisation's
requirements.
8.
However, the Tribunal observes that the reasoning behind
both the decision initially taken by the Director General on 30 October
2017 and the one he took, after the internal appeal procedure, on
4 October 2018 is not based on whether the Organisation needed at that
point to secure the services of a person with the complainant's profile,
but only on the complainant's allegedly unsatisfactory performance.
Eurocontrol's argument is therefore unfounded.
9.
It follows from the foregoing that the impugned decision of
4 October 2018 and the initial decision of 30 October 2017 are unlawful
and must therefore be set aside, without there being any need to
examine the complainant's other pleas directed against them.
10.
The complainant seeks an order for his reinstatement in the
Organisation at grade AD5 and at the step corresponding to normal
service on the date of his reinstatement, ...
- ... Staff
Regulations, the setting aside of the impugned decision does not
necessarily entail the conversion of the complainant's appointment as a
graduate into an appointment for an undetermined period or at least a
limited period.
12.
In the circumstances of the present case, and in view of the
specific features of the appointment process provided for in Annex Xa
to the Staff Regulations, the Tribunal does not consider it appropriate
to remit the case to Eurocontrol for an examination by the Organisation
of whether, following the setting aside of the impugned decision by the
Tribunal, Eurocontrol should convert the complainant's appointment.
13.
However, the Tribunal concludes from its examination of the
complainant's pleas that he was deprived of a valuable opportunity to
have his appointment as a graduate converted, as from 1 January 2018,
into an appointment for an undetermined period or at least a limited
period pursuant ...
- ... as a
graduate into an appointment for an undetermined period or at least a
limited period.
12.
In the circumstances of the present case, and in view of the
specific features of the appointment process provided for in Annex Xa
to the Staff Regulations, the Tribunal does not consider it appropriate
to remit the case to Eurocontrol for an examination by the Organisation
of whether, following the setting aside of the impugned decision by the
Tribunal, Eurocontrol should convert the complainant's appointment.
13.
However, the Tribunal concludes from its examination of the
complainant's pleas that he was deprived of a valuable opportunity to
have his appointment as a graduate converted, as from 1 January 2018,
into an appointment for an undetermined period or at least a limited
period pursuant to Article 6 of the abovementioned Annex Xa to the
Staff Regulations. Several documents in the file, including the emails
exchanged ...
- ... notes is largely due to the fact
that the Director General delayed in taking his decision after receiving
the Committee's opinion, is excessive and caused the complainant
moral injury which warrants the award of compensation in the amount
of 2,000 euros.
17.
As the complainant succeeds for the most part, he is entitled
to costs, which the Tribunal sets at 4,000 euros.
DECISION
For the above reasons,
1.
The decision of the Director General of Eurocontrol of 4 October
2018 and the decision of 30 October 2017 are set aside.
2.
Eurocontrol shall pay the complainant compensation in the amount
of 65,000 euros, as stated in consideration 15, above.
Judgment No. 4513
20
3.
The Organisation shall also pay him compensation in the amount
of 2,000 euros for the delay in the internal appeal procedure.
4.
Lastly, it shall pay him costs in the amount of 4,000 euros.
5.
All other ...
- ... receiving
the Committee's opinion, is excessive and caused the complainant
moral injury which warrants the award of compensation in the amount
of 2,000 euros.
17.
As the complainant succeeds for the most part, he is entitled
to costs, which the Tribunal sets at 4,000 euros.
DECISION
For the above reasons,
1.
The decision of the Director General of Eurocontrol of 4 October
2018 and the decision of 30 October 2017 are set aside.
2.
Eurocontrol shall pay the complainant compensation in the amount
of 65,000 euros, as stated in consideration 15, above.
Judgment No. 4513
20
3.
The Organisation shall also pay him compensation in the amount
of 2,000 euros for the delay in the internal appeal procedure.
4.
Lastly, it shall pay him costs in the amount of 4,000 euros.
5.
All other claims are dismissed.
In witness of this judgment, adopted on 13 May 2022, Mr Patrick
Frydman, ...
- Judgment 4473
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to recognise his son’s condition as a “serious illness” within the meaning of the provisions governing reimbursement of medical expenses. - Judgment 4472
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to appoint an official to his former post.
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