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- 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. - Judgment 4471
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his complaint of psychological harassment. - Judgment 4470
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns Eurocontrol’s decision to stop payment, as from 1 August 2016, of the education allowance and the dependent child allowance which he was receiving in respect of his daughter. - Judgment 4469
133rd 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 recover various sums which were allegedly unduly paid to him. - Judgment 4401
132nd Session, 2021
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her application for the reimbursement of medical expenses.
- ... Eurocontrol
132nd Session Judgment No. 4401
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the seventh complaint filed by Ms N. E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 January 2018 and corrected on 26 January, Eurocontrol's reply
of 4 May, the complainant's rejoinder of 22 June and Eurocontrol's
surrejoinder of 26 September 2018;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... Eurocontrol)
on 17 January 2018 and corrected on 26 January, Eurocontrol's reply
of 4 May, the complainant's rejoinder of 22 June and Eurocontrol's
surrejoinder of 26 September 2018;
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 ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
E. (No. 7)
v.
Eurocontrol
132nd Session Judgment No. 4401
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the seventh complaint filed by Ms N. E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 January 2018 and corrected on 26 January, Eurocontrol's reply
of 4 May, the complainant's rejoinder of 22 June and Eurocontrol's
surrejoinder of 26 September 2018;
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 dismiss her application
for the reimbursement ...
- ... translation,
the French text alone
being authoritative.
E. (No. 7)
v.
Eurocontrol
132nd Session Judgment No. 4401
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the seventh complaint filed by Ms N. E. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 17 January 2018 and corrected on 26 January, Eurocontrol's reply
of 4 May, the complainant's rejoinder of 22 June and Eurocontrol's
surrejoinder of 26 September 2018;
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 dismiss her application
for the reimbursement of medical expenses.
The complainant is an official assigned to the Organisation's ...
- ...
The complainant seeks the setting aside of the decision of
7 November 2017 and the reimbursement of all the acupuncture sessions
prescribed by her doctor and the expenses incurred for her treatment.
She claims interest on these sums at the statutory rate increased by
10 percentage points from the date of this complaint. In addition, the
complainant claims 8,000 euros in moral damages and 5,000 euros
in costs.
Judgment No. 4401
3
Eurocontrol asks the Tribunal to reject all the complainant's claims
as unfounded.
CONSIDERATIONS
1.
The complainant impugns the decision of 7 November 2017
in which the Principal Director of Resources of Eurocontrol rejected her
claim for reimbursement of medical expenses relating to five acupuncture
sessions delivered by Ms Q., who holds a degree in traditional Chinese
medicine and is a member of the Belgian Acupunctors Federation
(BAF), a professional body recognised ...
- ... claims interest on these sums at the statutory rate increased by
10 percentage points from the date of this complaint. In addition, the
complainant claims 8,000 euros in moral damages and 5,000 euros
in costs.
Judgment No. 4401
3
Eurocontrol asks the Tribunal to reject all the complainant's claims
as unfounded.
CONSIDERATIONS
1.
The complainant impugns the decision of 7 November 2017
in which the Principal Director of Resources of Eurocontrol rejected her
claim for reimbursement of medical expenses relating to five acupuncture
sessions delivered by Ms Q., who holds a degree in traditional Chinese
medicine and is a member of the Belgian Acupunctors Federation
(BAF), a professional body recognised by the Belgian authorities.
Among other claims, she asks the Tribunal to order Eurocontrol to pay
for all the acupuncture sessions prescribed by her doctor.
2.
The complainant takes issue with the Organisation ...
- ...
1.
The complainant impugns the decision of 7 November 2017
in which the Principal Director of Resources of Eurocontrol rejected her
claim for reimbursement of medical expenses relating to five acupuncture
sessions delivered by Ms Q., who holds a degree in traditional Chinese
medicine and is a member of the Belgian Acupunctors Federation
(BAF), a professional body recognised by the Belgian authorities.
Among other claims, she asks the Tribunal to order Eurocontrol to pay
for all the acupuncture sessions prescribed by her doctor.
2.
The complainant takes issue with the Organisation for having
taken the impugned decision on the basis of Belgian national law and the
practice of the European Commission, whereas Eurocontrol's internal
rules providing for a free choice of doctor and treatment facilities applied
to her. She points out that health insurance for Eurocontrol staff is
independent of national insurance schemes and that ...
- ... in traditional Chinese
medicine and is a member of the Belgian Acupunctors Federation
(BAF), a professional body recognised by the Belgian authorities.
Among other claims, she asks the Tribunal to order Eurocontrol to pay
for all the acupuncture sessions prescribed by her doctor.
2.
The complainant takes issue with the Organisation for having
taken the impugned decision on the basis of Belgian national law and the
practice of the European Commission, whereas Eurocontrol's internal
rules providing for a free choice of doctor and treatment facilities applied
to her. She points out that health insurance for Eurocontrol staff is
independent of national insurance schemes and that Rule of Application
No. 10 concerning sickness insurance cover expressly allows acupuncture
sessions to be reimbursed, regardless of whether or not such sessions
are reimbursed under Belgian national law. In her view, applying
national law leads to unequal treatment ...
- ...
Among other claims, she asks the Tribunal to order Eurocontrol to pay
for all the acupuncture sessions prescribed by her doctor.
2.
The complainant takes issue with the Organisation for having
taken the impugned decision on the basis of Belgian national law and the
practice of the European Commission, whereas Eurocontrol's internal
rules providing for a free choice of doctor and treatment facilities applied
to her. She points out that health insurance for Eurocontrol staff is
independent of national insurance schemes and that Rule of Application
No. 10 concerning sickness insurance cover expressly allows acupuncture
sessions to be reimbursed, regardless of whether or not such sessions
are reimbursed under Belgian national law. In her view, applying
national law leads to unequal treatment of members of staff depending
on where they are employed. She further argues that as Eurocontrol is
not part of the European Commission, the Commission's ...
- ... her. She points out that health insurance for Eurocontrol staff is
independent of national insurance schemes and that Rule of Application
No. 10 concerning sickness insurance cover expressly allows acupuncture
sessions to be reimbursed, regardless of whether or not such sessions
are reimbursed under Belgian national law. In her view, applying
national law leads to unequal treatment of members of staff depending
on where they are employed. She further argues that as Eurocontrol is
not part of the European Commission, the Commission's practice cannot
be applied to Eurocontrol. She submits that she is entitled to reimbursement
of the acupuncture sessions at issue under the Rule of Application
No. 10 since her situation satisfies the three conditions for such
reimbursement, namely, the existence of a medical prescription, a limit
of 30 sessions per year and their delivery by a practitioner legally
authorised to perform this kind of treatment.
3.
Rule ...
- ... schemes and that Rule of Application
No. 10 concerning sickness insurance cover expressly allows acupuncture
sessions to be reimbursed, regardless of whether or not such sessions
are reimbursed under Belgian national law. In her view, applying
national law leads to unequal treatment of members of staff depending
on where they are employed. She further argues that as Eurocontrol is
not part of the European Commission, the Commission's practice cannot
be applied to Eurocontrol. She submits that she is entitled to reimbursement
of the acupuncture sessions at issue under the Rule of Application
No. 10 since her situation satisfies the three conditions for such
reimbursement, namely, the existence of a medical prescription, a limit
of 30 sessions per year and their delivery by a practitioner legally
authorised to perform this kind of treatment.
3.
Rule of Application No. 10 states that acupuncture must be
carried out by a practitioner legally ...
- ... question that must be decided in order to resolve this dispute
is therefore whether Ms Q., as a holder of a degree in traditional
Chinese medicine, was legally authorised to practise acupuncture at the
date of the claim for reimbursement. This legally delicate question should
have been referred by the Organisation to the Belgian authorities, who
Judgment No. 4401
5
alone were in a position to provide the correct answer. As it did not do
so, Eurocontrol could not lawfully refuse to effect the reimbursement at
issue, since the file shows that acupuncture is widely practised in
Belgium and it is clear from the evidence that the complainant had
every reason to believe that the treatment carried out by Ms Q., who
had been recommended by her doctor, was performed legally.
Accordingly, the impugned decision must be set aside, without
there being any need to consider the complainant's other pleas.
8.
It follows from ...
- ... Committee may seek
expert medical advice before giving its opinion. The cost of the expert
opinion shall be borne by the Agency's Sickness Insurance Scheme.
The Management Committee must give its opinion within two months
Judgment No. 4401
6
of the request being received. The opinion shall be transmitted
simultaneously to the Director General and to the person concerned."
Under Article 92(2) of the Staff Regulations governing officials of the
Eurocontrol Agency, the Director General is to notify the person
concerned of her or his reasoned decision within four months from the
date on which the internal complaint was lodged.
In this case, on 19 January 2017 the complainant lodged an internal
complaint with the Director General against the decision of 15 December
2016 informing her of the refusal to cover the costs of the acupuncture
sessions because the treatment had not been carried out by a doctor. The
impugned decision ...
- ... in her submissions, the complainant does not establish that
any particular injury arose from that breach. In the circumstances, it is
unnecessary to award her compensation under this head (see, for
example, Judgment 4396, consideration 12).
11.
As she succeeds for the most part, the complainant is entitled
to costs, which the Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The decision of 7 November 2017 is set aside.
2.
Eurocontrol shall reimburse the complainant for the expenses
incurred by her in respect of the five sessions of acupuncture
referred to in her initial claim for reimbursement, together with
interest as specified in consideration 8 above.
3.
Eurocontrol shall also pay the complainant costs in the amount of
5,000 euros.
4.
All other claims are dismissed.
Judgment No. 4401
7
In witness of this judgment, adopted on 17 June 2021, Mr Patrick
Frydman, ...
- ... she succeeds for the most part, the complainant is entitled
to costs, which the Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The decision of 7 November 2017 is set aside.
2.
Eurocontrol shall reimburse the complainant for the expenses
incurred by her in respect of the five sessions of acupuncture
referred to in her initial claim for reimbursement, together with
interest as specified in consideration 8 above.
3.
Eurocontrol shall also pay the complainant costs in the amount of
5,000 euros.
4.
All other claims are dismissed.
Judgment No. 4401
7
In witness of this judgment, adopted on 17 June 2021, Mr Patrick
Frydman, President of the Tribunal, Mr Giuseppe Barbagallo, Judge,
and Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered on 7 July 2021 by video recording posted on the
Tribunal's Internet page.
(Signed)
P
ATRICK ...
- Judgment 4372
131st Session, 2021
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to classify him in the type of post “Assistant”.
- ... Eurocontrol
131st Session Judgment No. 4372
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr A.-G. G.-S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 September 2017 and corrected on 21 September 2017,
Eurocontrol's reply of 17 January 2018, the complainant's rejoinder of
30 April, corrected on 14 May, and Eurocontrol's surrejoinder of
20 July 2018;
Considering Articles II, paragraph 5, and ...
- ... Eurocontrol)
on 9 September 2017 and corrected on 21 September 2017,
Eurocontrol's reply of 17 January 2018, the complainant's rejoinder of
30 April, corrected on 14 May, and Eurocontrol's surrejoinder of
20 July 2018;
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: ...
- ... Eurocontrol's reply of 17 January 2018, the complainant's rejoinder of
30 April, corrected on 14 May, and Eurocontrol's surrejoinder of
20 July 2018;
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 classify him in the type ...
- ... administratif Administrative Tribunal
G.-S.
v.
Eurocontrol
131st Session Judgment No. 4372
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr A.-G. G.-S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 September 2017 and corrected on 21 September 2017,
Eurocontrol's reply of 17 January 2018, the complainant's rejoinder of
30 April, corrected on 14 May, and Eurocontrol's surrejoinder of
20 July 2018;
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 classify him in the type
of post "Assistant".
With effect from 1 March 2016, the complainant was appointed
"Senior Technical ...
- ... which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision to classify him in the type
of post "Assistant".
With effect from 1 March 2016, the complainant was appointed
"Senior Technical Assistant" at gr
ade AST9, in the career bracket
AST8-AST10, within the Network Operations Management Directorate.
On 1 July 2016 a reform of the Staff Regulations governing
officials of the Eurocontrol Agency entered into force. It involved a new
classification of officials. Paragraph 2 of Article 19 of Part 2 of Annex XIII
to the Staff Regulations relevantly provides as follows:
"With effect from 1 July 2016, the Director General shall classify officials
in service on 30 June 2016 in function group AST in types of posts as
follows:
Judgment No. 4372
2
[...]
b) Officials who were on 30 June 2016 in a post classified in the career
bracket AST8/9/10 ...
- ... which
heard the parties, issued its opinion on 20 March 2017. It unanimously
concluded that the complainant had been correctly classified in the type
of post "Assistant". On 23 May 2017 the Director-General informed the
complainant that, in accordance with the Committee's conclusion, he
had decided to dismiss his internal complaint. That is the impugned
decision.
The complainant seeks the quashing of that decision and an award
of 7,500 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
unfounded.
CONSIDERATIONS
1.
This complaint arises from the implementation of the
administrative reform of the Staff Regulations governing officials of
the Eurocontrol Agency that came into force on 1 July 2016. The
complainant was one of three successful candidates for the three vacant
posts advertised in competition NM-2015-AST/101 in November 2015.
Effective 1 March 2016, the complainant was appointed to ...
- ... that, in accordance with the Committee's conclusion, he
had decided to dismiss his internal complaint. That is the impugned
decision.
The complainant seeks the quashing of that decision and an award
of 7,500 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
unfounded.
CONSIDERATIONS
1.
This complaint arises from the implementation of the
administrative reform of the Staff Regulations governing officials of
the Eurocontrol Agency that came into force on 1 July 2016. The
complainant was one of three successful candidates for the three vacant
posts advertised in competition NM-2015-AST/101 in November 2015.
Effective 1 March 2016, the complainant was appointed to the generic
post of "Senior Technical Assistant", grade AST9 step 1, within the
career bracket AST8-AST10. The job title of the vacant posts was
"Real-Time Simulation Assistant".
Judgment No. 4372
3
2.
Following ...
- Judgment 4335
131st Session, 2021
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of the allowance she received during her parental leave.
- ... Eurocontrol
131st Session Judgment No. 4335
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms C. E. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
27 February 2019 and corrected on 20 June, and Eurocontrol's reply of
4 October 2019, no rejoinder having been submitted by the complainant;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions;
Considering ...
- ... Eurocontrol) on
27 February 2019 and corrected on 20 June, and Eurocontrol's reply of
4 October 2019, no rejoinder having been submitted by the complainant;
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 amount of the allowance she received
during her parental leave.
On 30 September 2017 the complainant, ...
- ... Eurocontrol's reply of
4 October 2019, no rejoinder having been submitted by the complainant;
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 amount of the allowance she received
during her parental leave.
On 30 September 2017 the complainant, who is an air traffic controller
at the Maastricht Upper Area ...
- ... that the facts of the case may be summed up as follows:
The complainant challenges the amount of the allowance she received
during her parental leave.
On 30 September 2017 the complainant, who is an air traffic controller
at the Maastricht Upper Area Control Centre, submitted three requests
for parental leave (for the months of June, July and September 2018)
pursuant to Article 42a of the General Conditions of Employment (GCE)
governing servants at the Eurocontrol Maastricht Centre. She requested
to be considered as a single parent. At that time, Article 42a relevantly
provided that during parental leave a servant was entitled to an allowance.
For a servant on full-time parental leave, the standard rate of the allowance
was 1,035.76 euros per month, but the rate for single parents was
1,381.02 euros per month. The Implementing Provisions for Article 42a
were set out in Office Notice No. 29/08.
Judgment No. 4335
2 ...
- ... the majority of the Joint Committee for Disputes,
her complaint was dismissed. That is the impugned decision.
The complainant requests before the Tribunal to be paid the difference
between the sum she would have received had she been paid at the single
parent rate and the allowance she actually received at the standard rate.
She also asks to be paid her social contributions during her leave and a
"decent sum" for costs and for the emotional stress she has suffered.
Eurocontrol asks the Tribunal to dismiss the complaint as entirely
unfounded.
CONSIDERATIONS
1.
The central question which this complaint raises for determination
is whether the impugned decision, dated 17 October 2018, in which the
Head of Human Resources and Agency Services, acting by delegation of
power from the Director General, accepted the opinion of the majority of
the Joint Committee for Disputes to dismiss the complainant's internal
complaint against the decision ...
- ...
unfounded.
CONSIDERATIONS
1.
The central question which this complaint raises for determination
is whether the impugned decision, dated 17 October 2018, in which the
Head of Human Resources and Agency Services, acting by delegation of
power from the Director General, accepted the opinion of the majority of
the Joint Committee for Disputes to dismiss the complainant's internal
complaint against the decision of 8 March 2018, should be set aside and
Eurocontrol be ordered to pay her the related amounts and costs which
she claims.
Judgment No. 4335
3
2.
On 30 September 2017, the complainant submitted requests
for parental leave as a single parent for the months of June, July and
September 2018. The communication of 8 March 2018 informed her that
the Director General had decided that, having regard to Office Notice
No. 26/17, which amended the Implementing Provisions for Article 42a
of the GCE regarding ...
- ... the time when she submitted her requests for the
subject parental leave Office Notice No. 29/08 was in force, her requests
should have been examined according to this Notice as under it she fell
into the definition of "single parent" entitling her to the allowance for
parental leave as such. This, she stated, was because she was not married;
Judgment No. 4335
4
she was not in a non-marital partnership; and she was not in a partnership
recognized by Eurocontrol or in one contemplated in Office Notice
No. 26/17 as reflected in Article 4 of the Implementing Provisions for
Article 42a of the GCE attached to Office Notice No. 26/17.
5.
Eurocontrol states that it does not dispute that the complainant
would have been entitled to the parental leave allowance as a single
parent under Office Notice No. 29/08. It however insists that her requests
were correctly determined under Office Notice No. 26/17 and that the
complainant was ...
- ... the definition of "single parent" entitling her to the allowance for
parental leave as such. This, she stated, was because she was not married;
Judgment No. 4335
4
she was not in a non-marital partnership; and she was not in a partnership
recognized by Eurocontrol or in one contemplated in Office Notice
No. 26/17 as reflected in Article 4 of the Implementing Provisions for
Article 42a of the GCE attached to Office Notice No. 26/17.
5.
Eurocontrol states that it does not dispute that the complainant
would have been entitled to the parental leave allowance as a single
parent under Office Notice No. 29/08. It however insists that her requests
were correctly determined under Office Notice No. 26/17 and that the
complainant was not deprived of her right to parental leave even though
she does not qualify as a single parent thereunder. Article 4 of the
Implementing Provisions for Article 42a of the GCE attached to Office ...
- Judgment 4283
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to cancel a competition in which he was a candidate.
- ... Eurocontrol
130th Session Judgment No. 4283
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Mr A. V. d. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 8 March 2017 and corrected on 15 March, Eurocontrol's reply of
30 June, the complainant's rejoinder of 19 September 2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the applications to intervene filed by Mr G. A., Mr R.
B., ...
- ... Eurocontrol)
on 8 March 2017 and corrected on 15 March, Eurocontrol's reply of
30 June, the complainant's rejoinder of 19 September 2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the applications to intervene filed by Mr G. A., Mr R.
B., Mr R. D., Mr L. G., Mr C. L. R., Mr A. O. and Mr N. P. on 10 July
2017, and Eurocontrol's comments thereon of 18 August 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 13 of ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
V. d. S. (No. 5)
v.
Eurocontrol
130th Session Judgment No. 4283
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Mr A. V. d. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 8 March 2017 and corrected on 15 March, Eurocontrol's reply of
30 June, the complainant's rejoinder of 19 September 2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the applications to intervene filed by Mr G. A., Mr R.
B., Mr R. D., Mr L. G., Mr C. L. R., Mr A. O. and Mr N. P. on 10 July
2017, and Eurocontrol's comments thereon of 18 August 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 13 of its Rules;
Having examined the written submissions and decided ...
- ... translation,
the French text alone
being authoritative.
V. d. S. (No. 5)
v.
Eurocontrol
130th Session Judgment No. 4283
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Mr A. V. d. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 8 March 2017 and corrected on 15 March, Eurocontrol's reply of
30 June, the complainant's rejoinder of 19 September 2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the applications to intervene filed by Mr G. A., Mr R.
B., Mr R. D., Mr L. G., Mr C. L. R., Mr A. O. and Mr N. P. on 10 July
2017, and Eurocontrol's comments thereon of 18 August 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 13 of its Rules;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering ...
- ...
Considering the fifth complaint filed by Mr A. V. d. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 8 March 2017 and corrected on 15 March, Eurocontrol's reply of
30 June, the complainant's rejoinder of 19 September 2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the applications to intervene filed by Mr G. A., Mr R.
B., Mr R. D., Mr L. G., Mr C. L. R., Mr A. O. and Mr N. P. on 10 July
2017, and Eurocontrol's comments thereon of 18 August 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 13 of its Rules;
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 cancel a competition in
which he was a candidate.
On 3 October 2014 Eurocontrol issued vacancy ...
- ... and Eurocontrol's comments thereon of 18 August 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 13 of its Rules;
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 cancel a competition in
which he was a candidate.
On 3 October 2014 Eurocontrol issued vacancy notice NM-2014
FCO/062 to fill nine posts of Deputy Technical Supervisor in the Network
Technical Systems Division. The complainant submitted an application.
On 15 December 2014 the Principal Director of Resources approved
the list of 10 candidates who had been found suitable by the selection
board, the first nine of whom were to be offered the advertised posts.
The complainant was ninth on the list. The Principal Director of Resources
Judgment ...
- ... of its members considered that the complainant should
be awarded moral damages. By memorandum of 13 December 2016,
the Director General notified the complainant that he had decided to
ż
Registry's translation.
Judgment No. 4283
3
dismiss his complaint on the ground that it was unfounded. That is the
impugned decision.
The complainant asks the Tribunal to set aside the impugned
decision and all the previous decisions. He requests that Eurocontrol be
ordered to appoint him as Deputy Technical Supervisor with retroactive
effect from 13 March 2015 and to pay him the resulting salary arrears.
He seeks compensation of 25,000 euros in moral damages and
10,000 euros in costs, including 5,000 euros for costs incurred in the
internal proceedings.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable, on the ground that it is time-barred, and unfounded. In its
surrejoinder, Eurocontrol requests the ...
- ... That is the
impugned decision.
The complainant asks the Tribunal to set aside the impugned
decision and all the previous decisions. He requests that Eurocontrol be
ordered to appoint him as Deputy Technical Supervisor with retroactive
effect from 13 March 2015 and to pay him the resulting salary arrears.
He seeks compensation of 25,000 euros in moral damages and
10,000 euros in costs, including 5,000 euros for costs incurred in the
internal proceedings.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable, on the ground that it is time-barred, and unfounded. In its
surrejoinder, Eurocontrol requests the Tribunal to disregard the matters
of law and fact set out in the rejoinder insofar as they are based on the
situation of the interveners.
CONSIDERATIONS
1.
The complainant impugns the decision of 13 December 2016
by which the Director General of Eurocontrol dismissed his internal
complaint seeking, in ...
- ... that Eurocontrol be
ordered to appoint him as Deputy Technical Supervisor with retroactive
effect from 13 March 2015 and to pay him the resulting salary arrears.
He seeks compensation of 25,000 euros in moral damages and
10,000 euros in costs, including 5,000 euros for costs incurred in the
internal proceedings.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable, on the ground that it is time-barred, and unfounded. In its
surrejoinder, Eurocontrol requests the Tribunal to disregard the matters
of law and fact set out in the rejoinder insofar as they are based on the
situation of the interveners.
CONSIDERATIONS
1.
The complainant impugns the decision of 13 December 2016
by which the Director General of Eurocontrol dismissed his internal
complaint seeking, in essence, to challenge the cancellation of the
competition opened on 3 October 2014 with a view to filling nine newly
created posts of Deputy Technical ...
- ... incurred in the
internal proceedings.
Eurocontrol asks the Tribunal to dismiss the complaint as
irreceivable, on the ground that it is time-barred, and unfounded. In its
surrejoinder, Eurocontrol requests the Tribunal to disregard the matters
of law and fact set out in the rejoinder insofar as they are based on the
situation of the interveners.
CONSIDERATIONS
1.
The complainant impugns the decision of 13 December 2016
by which the Director General of Eurocontrol dismissed his internal
complaint seeking, in essence, to challenge the cancellation of the
competition opened on 3 October 2014 with a view to filling nine newly
created posts of Deputy Technical Supervisor in the Network Technical
Systems Division.
The complainant submits that the cancellation of that competition,
in which he was ranked by the selection board as ninth on the list of
10 candidates found suitable for the posts in question, unduly deprived
him of an ...
- ... - that the complainant should have
been heard by the Administration before the competition was cancelled.
The general principle that an official has the right to be heard before an
individual decision that adversely affects her or him is taken plainly
cannot be applied to an impersonal decision which is collective in scope,
such as the cancellation of a competition.
7.
The complainant next disputes the impugned decision on
substantive grounds, submitting that Eurocontrol breached its own rules
by cancelling the disputed competition before the candidates proposed
by the selection board could be appointed and deciding to open a new
competition with a revised vacancy notice. He contends that, since the
initial selection procedure was validly conducted in accordance with
the applicable rules, in particular Article 30 of the Staff Regulations
governing officials of the Eurocontrol Agency and Article 15 of Rule of
Application No. 2, the Organisation ...
- ... impugned decision on
substantive grounds, submitting that Eurocontrol breached its own rules
by cancelling the disputed competition before the candidates proposed
by the selection board could be appointed and deciding to open a new
competition with a revised vacancy notice. He contends that, since the
initial selection procedure was validly conducted in accordance with
the applicable rules, in particular Article 30 of the Staff Regulations
governing officials of the Eurocontrol Agency and Article 15 of Rule of
Application No. 2, the Organisation could not refrain from completing
that procedure without infringing those provisions.
However, this argument disregards the fact that, as stated in
consideration 2 above, the executive head of an international organisation
is always entitled to decide to cancel a competition procedure in the
interests of the service. Although the principle tu patere legem quam
ipse fecisti requires that the selection ...
- ... same rules are deemed to allow
such a cancellation, even when the competition concerned has been
properly conducted.
In this case, in deciding to cancel the initial competition, on the
ground that it would not have allowed the posts to be filled appropriately,
and to organise a new competition with a revised vacancy notice, the
Director General did not, therefore, breach the abovementioned provisions.
8.
The complainant challenges the assessment made by
Eurocontrol in deciding to cancel the disputed competition and open
another for the purpose of selecting candidates whose profile better
suited, in its view, the role of deputy technical supervisor.
The Tribunal points out, however, that, under its case law referred
to in consideration 3 above, it can only interfere with the decision to
cancel the competition on the ground of such an error of judgement if
that error is manifest. Plainly, the same applies to the decision to open a
new ...
- ... the selection board in the second competition, that plea
is in any event irrelevant in this case since the decision of 13 December
Judgment No. 4283
10
2016 does not concern the validity of the outcome of that competition,
which, moreover, the complainant has not challenged.
11.
It follows from the foregoing that the complaint must be
dismissed in its entirety, without there being any need to rule on the
objections to receivability raised by Eurocontrol.
12.
The applications to intervene must, as a consequence of the
outcome of the complaint, also be dismissed, without it being necessary
to rule on Eurocontrol's objection to the receivability of some of them.
DECISION
For the above reasons,
The complaint and the applications to intervene are dismissed.
In witness of this judgment, adopted on 30 June 2020, Mr Patrick
Frydman, President of the Tribunal, Ms Fatoumata Diakité, Judge, and
Mr Yves Kreins, Judge, ...
- ... does not concern the validity of the outcome of that competition,
which, moreover, the complainant has not challenged.
11.
It follows from the foregoing that the complaint must be
dismissed in its entirety, without there being any need to rule on the
objections to receivability raised by Eurocontrol.
12.
The applications to intervene must, as a consequence of the
outcome of the complaint, also be dismissed, without it being necessary
to rule on Eurocontrol's objection to the receivability of some of them.
DECISION
For the above reasons,
The complaint and the applications to intervene are dismissed.
In witness of this judgment, adopted on 30 June 2020, Mr Patrick
Frydman, President of the Tribunal, Ms Fatoumata Diakité, Judge, and
Mr Yves Kreins, Judge, sign below, as do I, Dražen Petrovic, Registrar.
Delivered on 24 July 2020 by video recording posted on the
Tribunal's Internet page.
(Signed)
P
ATRICK
F
RYDMAN
F
ATOUMATA ...
- Judgment 4282
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.
- ... Eurocontrol
130th Session Judgment No. 4282
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by
Mr D. L. A. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
10 October
2018,
Eurocontrol's
reply
of
17 January
2019,
the
complainant's rejoinder of 2 March and Eurocontrol's surrejoinder of
14 June 2019;
Considering Articles II, paragraph 5, and VII of the ...
- ... Eurocontrol)
on
10 October
2018,
Eurocontrol's
reply
of
17 January
2019,
the
complainant's rejoinder of 2 March and Eurocontrol's surrejoinder of
14 June 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 ...
- ... Eurocontrol's
reply
of
17 January
2019,
the
complainant's rejoinder of 2 March and Eurocontrol's surrejoinder of
14 June 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 ...
- ...
Tribunal administratif Administrative Tribunal
L. A.
v.
Eurocontrol
130th Session Judgment No. 4282
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by
Mr D. L. A. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
10 October
2018,
Eurocontrol's
reply
of
17 January
2019,
the
complainant's rejoinder of 2 March and Eurocontrol's surrejoinder of
14 June 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
to
terminate
his
appointment at the end of his probationary ...
- ...
Director
General with a recommendation. On 31 July, following a few meetings
held with his management, the complainant withdrew his objection to
the extension of the probationary period.
On
9 August
2017
the
complainant
was
informed
that
the
proposal for extension of his probationary period was rejected by the
Directorate of Human Resources as it was not compliant with Article 7
of the Conditions of Employment of Contract Staff at Eurocontrol. As
a result, the complainant's line manager drafted a final report with a
recommendation to the Director General to terminate the complainant's
appointment
at
the
end
of
his
probationary
period
on
30 September
2017.
By
an internal
memorandum of 30 August 2017,
the
Director
General informed the complainant that he had decided to dismiss him
at
the
end
of
his
probationary
period
as
his ...
- ... the
dismissal decision taken on 30 August 2017 and confirmed on 3 July 2018.
He asks that these decisions be considered as an early termination of
employment in accordance with Article 37(1)c) of the Conditions of
Employment of Contract Staff, with the obligations and rights that this
entails. The complainant further asks for cancellation and destruction of
the appraisals and reports related to his case. He seeks moral damages
of 40,000 euros as well as costs.
Eurocontrol
asks
the
Tribunal
to
dismiss
the
complaint
as
unfounded.
CONSIDERATIONS
1.
The complainant, who was employed as a Service Delivery
Assistant by Eurocontrol on a three-year contract from 1 January 2017,
challenges the Director General's decision of 3 July 2018, maintaining
the initial decision of 30 August 2017 to dismiss him with effect from
30 September 2017 "as [his] work and abilities ha[d] proven inadequate
in the Agency". ...
- ... Conditions of
Employment of Contract Staff, with the obligations and rights that this
entails. The complainant further asks for cancellation and destruction of
the appraisals and reports related to his case. He seeks moral damages
of 40,000 euros as well as costs.
Eurocontrol
asks
the
Tribunal
to
dismiss
the
complaint
as
unfounded.
CONSIDERATIONS
1.
The complainant, who was employed as a Service Delivery
Assistant by Eurocontrol on a three-year contract from 1 January 2017,
challenges the Director General's decision of 3 July 2018, maintaining
the initial decision of 30 August 2017 to dismiss him with effect from
30 September 2017 "as [his] work and abilities ha[d] proven inadequate
in the Agency". This was at the end of his nine-month probationary
period provided for in Article 7 of the Conditions of Employment of
Contract
Staff.
The
complainant
seeks
an order
setting
aside ...
- ... dismiss him was wrong and should
be set aside because during his probationary period, his line manager
did
not
comply
with
the
relevant
rules or
procedures
or
with
his
obligations
to
properly
manage
his
probation;
did
no
follow-up
assessment
of
his
skills
and
competencies
and
even
actively
and
passively
hindered
his
successful
integration
into
Eurocontrol.
He
therefore
maintains that
Eurocontrol violated
its
regulations
and
procedures and did not observe the terms of his appointment, thereby
invalidating the final report for his probationary period. In response,
Eurocontrol submits that the complainant's appointment was terminated
Judgment No. 4282
5
in line with the applicable provisions and the requirements identified
by the Tribunal.
6.
In
addition
to
the ...
- ... during his probationary period, his line manager
did
not
comply
with
the
relevant
rules or
procedures
or
with
his
obligations
to
properly
manage
his
probation;
did
no
follow-up
assessment
of
his
skills
and
competencies
and
even
actively
and
passively
hindered
his
successful
integration
into
Eurocontrol.
He
therefore
maintains that
Eurocontrol violated
its
regulations
and
procedures and did not observe the terms of his appointment, thereby
invalidating the final report for his probationary period. In response,
Eurocontrol submits that the complainant's appointment was terminated
Judgment No. 4282
5
in line with the applicable provisions and the requirements identified
by the Tribunal.
6.
In
addition
to
the
guiding
principles
established
by ...
- ...
his
probation;
did
no
follow-up
assessment
of
his
skills
and
competencies
and
even
actively
and
passively
hindered
his
successful
integration
into
Eurocontrol.
He
therefore
maintains that
Eurocontrol violated
its
regulations
and
procedures and did not observe the terms of his appointment, thereby
invalidating the final report for his probationary period. In response,
Eurocontrol submits that the complainant's appointment was terminated
Judgment No. 4282
5
in line with the applicable provisions and the requirements identified
by the Tribunal.
6.
In
addition
to
the
guiding
principles
established
by
the
Tribunal,
recalled
in
considerations 2
and 3
of
this judgment,
the
applicable procedures for probationary evaluations are set out, in part,
in Article 7 of the ...
- ...
Judgment No. 4282
5
in line with the applicable provisions and the requirements identified
by the Tribunal.
6.
In
addition
to
the
guiding
principles
established
by
the
Tribunal,
recalled
in
considerations 2
and 3
of
this judgment,
the
applicable procedures for probationary evaluations are set out, in part,
in Article 7 of the Conditions of Employment of Contract Staff and in
Eurocontrol's
Probationary
Period
Information
and
Procedure
(the
Procedure). Article 7, paragraph 3, requires a report to be made, not
less than one month before the expiry of the probationary period, on
the ability of a probationer to perform in the post, and on the latter's
conduct and efficiency in the service. Article 7, paragraph 4, provides
that a report may be made at any time during the probationary period
if the probationer is proving to be obviously ...
- ...
he
met
with
the
Head
of
his
Directorate,
on
28 July
2017.
This
was
to
discuss
the
possible extension of his probationary period to provide him with an
opportunity to improve on the areas of deficient performance on the
basis of a structured improvement plan. It was by then realized that
Article 7 of the Conditions of Employment of Contract Staff precluded
an extension of his probationary period. According to Eurocontrol,
the complainant then met with his line manager for "another formal
meeting
on
9 August
2017,
which
led
to
the
drafting
of
the
final
probationary
period
report
and
the
[termination]
recommendation".
The line manager had noted in his comments the areas of deficiency in
the complainant's work and had concluded that since his probationary
period
could
not
have
been
extended
he
was ...
- ... for
steps 2 and 3 in that report signify that "no interview" was conducted.
Moreover,
the
complainant's
second
plea,
that
there
is
no
evidence
that
he
was
given
a
specific
warning
that his
employment
was
in
jeopardy
if
his
performance
did
not
improve
to
meet
the
required
standard,
is
well
founded.
In
the
foregoing
premises,
Eurocontrol did not meet its obligations under the Tribunal's case law,
as recalled in consideration 5 of Judgment 3866.
12.
The complainant's plea that his French language proficiency
objective was not monitored objectively is also well founded. This is
because, in the first place, the French language proficiency objective
was set to be met at the end of 2017. In the second place, the Tribunal
accepts
the
complainant's
assertion
that
the
comments
in ...
- ... does not change his mind to take into
account
the
comments
of
others".
However,
these
examples,
which
were ultimately provided to support the complainant's alleged inadequate
performance,
arose
from
his
objection,
at
their
meeting
on
13 July
2017, to the proposal to extend his probationary period. As it transpired,
the Administration later realized that an extension of the period would
have breached Eurocontrol's rules.
14.
In
the foregoing
premises,
the
decision
to
dismiss
the
complainant
at
the
end
of
his
probationary
period
was
tainted
with
several
irregularities and
will
be
set
aside, without
there
being
any
need to rule on the other pleas which the complainant raises.
15.
The complainant has not requested reinstatement. Instead, he
seeks
compensation pursuant ...
- ...
premises,
the
decision
to
dismiss
the
complainant
at
the
end
of
his
probationary
period
was
tainted
with
several
irregularities and
will
be
set
aside, without
there
being
any
need to rule on the other pleas which the complainant raises.
15.
The complainant has not requested reinstatement. Instead, he
seeks
compensation pursuant
to Article 37(1)c)
of
Eurocontrol's
Conditions
of
Employment of Contract
Staff. Eurocontrol
correctly
argues that he is not entitled to compensation under the provisions of
Article 37(1) because they are only applicable in cases of termination
of
limited-term
contracts
of
staff
members
who
have
successfully
completed their probationary period, which the complainant did not do.
However, the decision to dismiss the complainant wrongfully denied
him a valuable ...
- ...
at
the
end
of
his
probationary
period
was
tainted
with
several
irregularities and
will
be
set
aside, without
there
being
any
need to rule on the other pleas which the complainant raises.
15.
The complainant has not requested reinstatement. Instead, he
seeks
compensation pursuant
to Article 37(1)c)
of
Eurocontrol's
Conditions
of
Employment of Contract
Staff. Eurocontrol
correctly
argues that he is not entitled to compensation under the provisions of
Article 37(1) because they are only applicable in cases of termination
of
limited-term
contracts
of
staff
members
who
have
successfully
completed their probationary period, which the complainant did not do.
However, the decision to dismiss the complainant wrongfully denied
him a valuable opportunity to have his appointment confirmed at the
end
of
the ...
- ...
otherwise,
generated
by
his
line
manager
or created at
the Directorate of
Human
Resources
to
be
destroyed.
18.
As the complainant succeeds in part, he is entitled to costs
in the amount of 750 euros.
DECISION
For the above reasons,
1.
The
impugned
decision
of
3 July
2018
is
set
aside,
as
is
the
Director General's earlier decision of 30 August 2017.
2.
Eurocontrol
shall
pay
the
complainant material
damages in
the
amount
of
25,000 euros,
deducting
therefrom
any sums that
he
was
paid
under
Article 7 of
the
Conditions
of
Employment of
Contract Staff.
3.
Eurocontrol
shall
pay
the
complainant
moral
damages
in
the
amount of 20,000 euros.
4.
Eurocontrol shall
destroy
the
appraisals
and
reports,
whether ...
- ...
1.
The
impugned
decision
of
3 July
2018
is
set
aside,
as
is
the
Director General's earlier decision of 30 August 2017.
2.
Eurocontrol
shall
pay
the
complainant material
damages in
the
amount
of
25,000 euros,
deducting
therefrom
any sums that
he
was
paid
under
Article 7 of
the
Conditions
of
Employment of
Contract Staff.
3.
Eurocontrol
shall
pay
the
complainant
moral
damages
in
the
amount of 20,000 euros.
4.
Eurocontrol shall
destroy
the
appraisals
and
reports,
whether
electronic data or otherwise, generated by the complainant's line
manager or created at the Directorate of Human Resources.
5.
Eurocontrol shall pay the complainant 750 euros in costs.
6.
All other claims are dismissed.
Judgment No. 4282
10 ...
- ... General's earlier decision of 30 August 2017.
2.
Eurocontrol
shall
pay
the
complainant material
damages in
the
amount
of
25,000 euros,
deducting
therefrom
any sums that
he
was
paid
under
Article 7 of
the
Conditions
of
Employment of
Contract Staff.
3.
Eurocontrol
shall
pay
the
complainant
moral
damages
in
the
amount of 20,000 euros.
4.
Eurocontrol shall
destroy
the
appraisals
and
reports,
whether
electronic data or otherwise, generated by the complainant's line
manager or created at the Directorate of Human Resources.
5.
Eurocontrol shall pay the complainant 750 euros in costs.
6.
All other claims are dismissed.
Judgment No. 4282
10
In witness of this judgment, adopted on 3 July 2020, Mr Patrick
Frydman,
President
of
the
Tribunal,
Ms Dolores ...
- ...
he
was
paid
under
Article 7 of
the
Conditions
of
Employment of
Contract Staff.
3.
Eurocontrol
shall
pay
the
complainant
moral
damages
in
the
amount of 20,000 euros.
4.
Eurocontrol shall
destroy
the
appraisals
and
reports,
whether
electronic data or otherwise, generated by the complainant's line
manager or created at the Directorate of Human Resources.
5.
Eurocontrol shall pay the complainant 750 euros in costs.
6.
All other claims are dismissed.
Judgment No. 4282
10
In witness of this judgment, adopted on 3 July 2020, Mr Patrick
Frydman,
President
of
the
Tribunal,
Ms Dolores
M. Hansen,
Vice
President
of
the
Tribunal,
and
Sir Hugh
A. Rawlins,
Judge,
sign
below, as do I, Dražen Petrovic, Registrar.
Delivered
on
24 July
2020
by
video ...
- Judgment 4281
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to promote him in the 2015 promotion exercise.
- ... Eurocontrol
130th Session Judgment No. 4281
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 March 2017 and corrected on 6 April, Eurocontrol's reply of
27 July, the complainant's rejoinder of 4 December, corrected on
22 December 2017, and Eurocontrol's surrejoinder of 16 April 2018;
Considering Articles II, paragraph 5, and VII of the Statute ...
- ... Eurocontrol) on
15 March 2017 and corrected on 6 April, Eurocontrol's reply of
27 July, the complainant's rejoinder of 4 December, corrected on
22 December 2017, and Eurocontrol's surrejoinder of 16 April 2018;
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 ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
H.
v.
Eurocontrol
130th Session Judgment No. 4281
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 March 2017 and corrected on 6 April, Eurocontrol's reply of
27 July, the complainant's rejoinder of 4 December, corrected on
22 December 2017, and Eurocontrol's surrejoinder of 16 April 2018;
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 promote him in ...
- ... translation,
the French text alone
being authoritative.
H.
v.
Eurocontrol
130th Session Judgment No. 4281
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
15 March 2017 and corrected on 6 April, Eurocontrol's reply of
27 July, the complainant's rejoinder of 4 December, corrected on
22 December 2017, and Eurocontrol's surrejoinder of 16 April 2018;
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 promote him in the
2015 promotion exercise.
The complainant joined Eurocontrol in 1993. On 1 July 2010,
following an administrative ...
- ... corrected on
22 December 2017, and Eurocontrol's surrejoinder of 16 April 2018;
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 promote him in the
2015 promotion exercise.
The complainant joined Eurocontrol in 1993. On 1 July 2010,
following an administrative reform, the grade to which he had been
promoted in 2007 was renamed "AST7". At the material time, he was
devoting part of his working time to staff representation activities.
In Office Notice No. 25/15 of 22 October 2015, the Director General
published the lists of promotions and accelerated step advancements
for the 2015 exercise. The complainant was not among the officials
promoted.
Judgment No. 4281 ...
- ...
to the Director General in which he requested that the decision not to
promote him be cancelled and that he be promoted to grade AST8 in
the 2015 exercise.
On 4 February 2016 his complaint was referred to the Joint
Committee for Disputes, which delivered its opinion on 5 October 2016.
Two of the Committee's four members considered that the complaint
was unfounded because the procedure laid down in Article 45 of the
Staff Regulations governing officials of the Eurocontrol Agency and
Rule of Application No. 4 concerning the procedure for grade promotion
provided for in Article 45 of the Staff Regulations had been complied with.
In their view, it was clear from Articles 4 and 5 of Rule of Application
No. 4 that the Promotion Board examines only the list of eligible
candidates centralised by the Directorate in charge of human resources.
The other two members considered that the complaint was well
founded because, contrary to Article 5 of ...
- ... 2010.
By internal memorandum of 13 December 2016, the Director General
informed the complainant that he endorsed the recommendation of two
of the Committee members that the complaint should be dismissed as
unfounded for the reasons put forward by them. That is the impugned
decision.
The complainant seeks the annulment of the impugned decision
and an award of 50,000 euros in compensation for material and moral
injury. He also claims 5,000 euros in costs.
Eurocontrol asks the Tribunal to reject all the complainant's claims
as unfounded.
Judgment No. 4281
3
CONSIDERATIONS
1.
The complainant impugns the decision of 13 December 2016
in which the Director General endorsed the recommendations of two
members of the Joint Committee for Disputes and refused to grant him
promotion to grade AST8 in the 2015 promotion exercise.
2.
According to the Tribunal's settled case law, "while every
official should ...
- ... be exclusively by selection from among officials who have
completed a minimum period of two years in their grade, after consideration
of the comparative merits of the officials eligible for promotion. Merit shall
be understood as e.g. performance and long-standing commitment.
[...]
When considering comparative merits, the Director General shall take
account of the appraisal reports on the officials.
[...]"
5.
As regards the complainant's activities as a Eurocontrol official,
the written submissions show that his performance, as described in the
performance appraisal report concerning the period 1 January 2013 to
28 February 2014, preceding the 2015 promotion exercise, was not
considered fully satisfactory. The Tribunal observes, moreover, that the
complainant's reporting manager, who had, in his performance appraisal
report for 2012, proposed that the complainant be promoted, did not
repeat that support the following year owing ...
- ... that the
complainant's reporting manager, who had, in his performance appraisal
report for 2012, proposed that the complainant be promoted, did not
repeat that support the following year owing to the complainant's
shortcomings.
From 2013, the complainant's staff union activities (representing
40 per cent of his total work) were subject to appraisals by a second
reporting manager, the President of the Executive Committee of the
Union Syndicale Brussels, Section Eurocontrol, which show that his work
was always considered "well done", "constructive and productive" and
"always in the interest of the Agency and its staff", but not "excellent"
as the complainant states in the complaint. Nothing in the file indicates
that that appraisal was not taken into account.
Under its case law referred to above, the Tribunal can only interfere
with the decision to refuse a promotion on the ground of an error of
judgement if that error is manifest. However, ...
- ... in the interest of the Agency and its staff", but not "excellent"
as the complainant states in the complaint. Nothing in the file indicates
that that appraisal was not taken into account.
Under its case law referred to above, the Tribunal can only interfere
with the decision to refuse a promotion on the ground of an error of
judgement if that error is manifest. However, given the complainant's
performance appraisal reports for his professional activities for
Eurocontrol (representing 60 per cent of his total work), the Tribunal
cannot find that the decision in question involved an obvious error
of judgement.
Judgment No. 4281
5
It also follows from the foregoing that the criteria on the basis of which
a promotion may be granted under Article 45 of the Staff Regulations
were not disregarded.
6.
Citing the principle of equal treatment, the complainant
submits that he faced discrimination owing to his staff ...
- ... from the foregoing that the criteria on the basis of which
a promotion may be granted under Article 45 of the Staff Regulations
were not disregarded.
6.
Citing the principle of equal treatment, the complainant
submits that he faced discrimination owing to his staff union activity.
That discrimination resulted from the Director General's failure at the
material time to have implemented the Memorandum of Understanding
of 16 July 2003 governing relations between Eurocontrol and three
representative staff union organisations, which provides that participation
in staff union activities may not be prejudicial to the professional
situation and career advancement of the officials concerned. According
to the complainant, this meant that the comparative examination of
officials' merits in the 2015 promotion exercise did not take into
consideration the role he played as a staff union representative, in
particular during the discussions and negotiations ...
- ... into
consideration the role he played as a staff union representative, in
particular during the discussions and negotiations on the administrative
reform of the Staff Regulations and Rules of Application. This resulted
in a breach of the principle of equal treatment, since the complainant
was not treated in the same way as other members of staff.
In support of that contention, the complainant refers to
Judgment 2869, in which the Tribunal set aside a decision of Eurocontrol
on the ground that, "by not adopting implementing rules to support the
Memorandum of Understanding, Eurocontrol violated that Memorandum
as well as the principle of equality" (consideration 6).
7.
In Judgment 3666, under 8, the Tribunal found that, by
assigning an official to a post in which 50 per cent of his activity was
devoted to the tasks listed in his job description (with the remaining
50 per cent devoted to his staff union activities), he was reintegrated ...
- ... and negotiations on the administrative
reform of the Staff Regulations and Rules of Application. This resulted
in a breach of the principle of equal treatment, since the complainant
was not treated in the same way as other members of staff.
In support of that contention, the complainant refers to
Judgment 2869, in which the Tribunal set aside a decision of Eurocontrol
on the ground that, "by not adopting implementing rules to support the
Memorandum of Understanding, Eurocontrol violated that Memorandum
as well as the principle of equality" (consideration 6).
7.
In Judgment 3666, under 8, the Tribunal found that, by
assigning an official to a post in which 50 per cent of his activity was
devoted to the tasks listed in his job description (with the remaining
50 per cent devoted to his staff union activities), he was reintegrated into
Eurocontrol's office hierarchy, which allowed for periodic performance
appraisals by a line manager. The ...
- ... that, "by not adopting implementing rules to support the
Memorandum of Understanding, Eurocontrol violated that Memorandum
as well as the principle of equality" (consideration 6).
7.
In Judgment 3666, under 8, the Tribunal found that, by
assigning an official to a post in which 50 per cent of his activity was
devoted to the tasks listed in his job description (with the remaining
50 per cent devoted to his staff union activities), he was reintegrated into
Eurocontrol's office hierarchy, which allowed for periodic performance
appraisals by a line manager. The Tribunal concluded that this restored
equality of treatment between that official and other staff members
as required under the relevant provision of the Memorandum of
Understanding and by Judgment 2869.
The complainant in this case is in a similar situation. Although,
unlike other officials, he devoted 40 per cent of his working time to staff
union activities, that situation ...
- ... this restored
equality of treatment between that official and other staff members
as required under the relevant provision of the Memorandum of
Understanding and by Judgment 2869.
The complainant in this case is in a similar situation. Although,
unlike other officials, he devoted 40 per cent of his working time to staff
union activities, that situation did not prevent him from being the
subject of various performance appraisal reports relating to his duties
as a Eurocontrol official, nor did it prevent his reporting manager from
Judgment No. 4281
6
proposing his inclusion on the list of officials to be promoted in the
2013 exercise.
Furthermore, as noted above, the complainant's staff union
activities were appraised from 2013 onwards.
The plea that the principle of equal treatment was infringed must
therefore be dismissed.
8.
In addition, the complainant submits that he was deprived of
an opportunity to be ...
- Judgment 4280
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to grant him a retirement pension.
- ... Eurocontrol
130th
Session
Judgment No. 4280
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr C. B. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
28 May
2018 and
corrected
on
9 July
2018,
Eurocontrol's
reply
of
20 February
2019,
the
complainant's
rejoinder
of
25 March
and
Eurocontrol's surrejoinder of 28 ...
- ... Eurocontrol)
on
28 May
2018 and
corrected
on
9 July
2018,
Eurocontrol's
reply
of
20 February
2019,
the
complainant's
rejoinder
of
25 March
and
Eurocontrol's surrejoinder of 28 June 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 ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
B.
v.
Eurocontrol
130th
Session
Judgment No. 4280
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr C. B. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
28 May
2018 and
corrected
on
9 July
2018,
Eurocontrol's
reply
of
20 February
2019,
the
complainant's
rejoinder
of
25 March
and
Eurocontrol's surrejoinder of 28 June 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 ...
- ...
v.
Eurocontrol
130th
Session
Judgment No. 4280
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr C. B. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
28 May
2018 and
corrected
on
9 July
2018,
Eurocontrol's
reply
of
20 February
2019,
the
complainant's
rejoinder
of
25 March
and
Eurocontrol's surrejoinder of 28 June 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 contests the decision not to grant him a retirement
pension.
The
complainant
joined
Eurocontrol ...
- ... surrejoinder of 28 June 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 contests the decision not to grant him a retirement
pension.
The
complainant
joined
Eurocontrol
in
April
1993.
As
from
1 June 1995 he was granted leave on personal grounds initially for a
year and later extended several times upon his request. Mid-May 1998
he informed Eurocontrol that he was available to work as from 1 June
1998. The complainant and the Administration had numerous exchanges
concerning his reintegration but no post could be found corresponding
to
his
grade
and
for
which
he
satisfied
the
requirements ...
- ... for which neither party has applied;
Considering
that
the
facts
of
the
case
may
be
summed
up
as
follows:
The complainant contests the decision not to grant him a retirement
pension.
The
complainant
joined
Eurocontrol
in
April
1993.
As
from
1 June 1995 he was granted leave on personal grounds initially for a
year and later extended several times upon his request. Mid-May 1998
he informed Eurocontrol that he was available to work as from 1 June
1998. The complainant and the Administration had numerous exchanges
concerning his reintegration but no post could be found corresponding
to
his
grade
and
for
which
he
satisfied
the
requirements
before
he
reached retirement age (65 years of age) on 4 February 2018.
Judgment No. 4280
2
On 28 March 2018 he wrote to the Director General requesting
the payment of his ...
- ...
reached
65 years
of
age,
he
was
"required to resign". She added that since he had contributed to the
pension scheme for a total period of 26 months he was entitled to the
transfer
of
the
actuarial
value
of
his
pension
rights
to
a
public
or
private pension scheme under the condition that the scheme fulfilled
the criteria outlined in Article 86 of the Staff Regulations governing
officials of the Eurocontrol Agency. She explained that the time spent
on leave on personal grounds was not considered as years of service;
thus,
he
had
not
completed
the
required
ten
years
of
service
to
be
entitled
to
a
retirement
pension.
She
also
noted
that
he
did
not
fall
under the exceptions outlined in Article 77 of the Staff Regulations,
which
allowed
staff
members
to
be
entitled ...
- ...
ten
years
of
service
to
be
entitled
to
a
retirement
pension.
She
also
noted
that
he
did
not
fall
under the exceptions outlined in Article 77 of the Staff Regulations,
which
allowed
staff
members
to
be
entitled
to
a
retirement
pension
irrespective of the length of service. That is the decision he impugned
before the Tribunal on 28 May 2018.
On 14 February 2019 Eurocontrol wrote to the complainant referring
to his letter of 28 March 2018 and his complaint to the Tribunal. It
stated
that
he
was
entitled
to
the
payment
of
a
monthly
retirement
pension with effect from 1 March 2018. Eurocontrol would pay him,
as from March 2019 and with retroactive effect from 1 March 2018,
the monthly retirement pension to which he was entitled, calculated on
the basis of his active employment with Eurocontrol from 1 ...
- ...
members
to
be
entitled
to
a
retirement
pension
irrespective of the length of service. That is the decision he impugned
before the Tribunal on 28 May 2018.
On 14 February 2019 Eurocontrol wrote to the complainant referring
to his letter of 28 March 2018 and his complaint to the Tribunal. It
stated
that
he
was
entitled
to
the
payment
of
a
monthly
retirement
pension with effect from 1 March 2018. Eurocontrol would pay him,
as from March 2019 and with retroactive effect from 1 March 2018,
the monthly retirement pension to which he was entitled, calculated on
the basis of his active employment with Eurocontrol from 1 April 1993
to 31 May 1995. It would also pay him interest at a rate of 3.5 per cent
per annum (for the period March 2018 to February 2019) to compensate
him for the delay in the payment of his retirement pension. In addition,
it
offered
to pay him
5,000 ...
- ... 2019 Eurocontrol wrote to the complainant referring
to his letter of 28 March 2018 and his complaint to the Tribunal. It
stated
that
he
was
entitled
to
the
payment
of
a
monthly
retirement
pension with effect from 1 March 2018. Eurocontrol would pay him,
as from March 2019 and with retroactive effect from 1 March 2018,
the monthly retirement pension to which he was entitled, calculated on
the basis of his active employment with Eurocontrol from 1 April 1993
to 31 May 1995. It would also pay him interest at a rate of 3.5 per cent
per annum (for the period March 2018 to February 2019) to compensate
him for the delay in the payment of his retirement pension. In addition,
it
offered
to pay him
5,000 euros for
the
delay if he agreed
to
withdraw his complaint. Eurocontrol added that he should inform it of
his acceptance of that offer by 15 March 2019, failing which it would
consider that ...
- ...
the monthly retirement pension to which he was entitled, calculated on
the basis of his active employment with Eurocontrol from 1 April 1993
to 31 May 1995. It would also pay him interest at a rate of 3.5 per cent
per annum (for the period March 2018 to February 2019) to compensate
him for the delay in the payment of his retirement pension. In addition,
it
offered
to pay him
5,000 euros for
the
delay if he agreed
to
withdraw his complaint. Eurocontrol added that he should inform it of
his acceptance of that offer by 15 March 2019, failing which it would
consider that he had rejected the offer.
The
complainant
asks
the
Tribunal
to
order
the
payment
of
his
full and complete retirement pension from 1 June 1998 to March 2018.
He also seeks an award of one million euros for emotional injury, pain
and suffering, together with one million euros for loss of career path,
promotion and ...
- ... which it would
consider that he had rejected the offer.
The
complainant
asks
the
Tribunal
to
order
the
payment
of
his
full and complete retirement pension from 1 June 1998 to March 2018.
He also seeks an award of one million euros for emotional injury, pain
and suffering, together with one million euros for loss of career path,
promotion and decent pension. He further seeks costs.
Judgment No. 4280
3
Eurocontrol asks the Tribunal to reject the complaint as irreceivable
and,
subsidiarily,
as moot,
inasmuch as
he
claims
the
payment
of
a
retirement pension which he has now received. "[M]ore subsidiarily",
the complaint should be rejected as unfounded.
CONSIDERATIONS
1.
The complainant joined Eurocontrol on 1 April 1993, as an
expert
in
the
Internal
Audit
Unit.
He
was
confirmed
as
a
full-time
employee ...
- ... euros for loss of career path,
promotion and decent pension. He further seeks costs.
Judgment No. 4280
3
Eurocontrol asks the Tribunal to reject the complaint as irreceivable
and,
subsidiarily,
as moot,
inasmuch as
he
claims
the
payment
of
a
retirement pension which he has now received. "[M]ore subsidiarily",
the complaint should be rejected as unfounded.
CONSIDERATIONS
1.
The complainant joined Eurocontrol on 1 April 1993, as an
expert
in
the
Internal
Audit
Unit.
He
was
confirmed
as
a
full-time
employee
following
the
completion
of
the
six-month
probationary
period. His multiple requests for leave on personal grounds were granted
by decisions dated 19 May 1995, 3 April 1996 and 28 April 1997, for
a cumulative period of leave from 1 June 1995 to 31 May 1998. By
letter dated 15 May 1998, the complainant informed ...
- ...
the
mandatory
retirement
age
of
65 years
on
4 February
2018.
By
letter
dated
28 March
2018,
he
submitted a request to retire effective 1 March 2018. He also requested
the payment of his retirement pension to begin with effect from that
date. By letter dated 26 April 2018, the Head of Human Resources and
Services
notified
the
complainant
that,
as
he
had
contributed
to
the
Eurocontrol pension scheme for a total period of 26 months, he was
entitled to the transfer of the actuarial value of his pension rights to a
public or private pension scheme, under the condition that it fulfilled the
criteria in Article 86 of the Staff Regulations. She also noted: "As the
amount is based only on 26 months and because at the time of your
departure
on
unpaid
leave you
were
entitled
to
the
payment
of
the
severance grant allowance ...
- ... in cash, we can also exceptionally
pay
the
corresponding
amount
to
a
pension
fund
of
your
choice
(disregarding the mandatory criteria of Article 86 of the Staff Regulations)
or [...] pay it directly in cash into your bank account number." The
complainant filed the present complaint on 28 May 2018, against the
26 April 2018 decision, requesting: payment of his full and complete
retirement pension from 1 June 1998 to March 2018 "as Eurocontrol
Judgment No. 4280
4
has
demonstrated
it
never
intended
to
reinstate
[him]";
one
million
euros for emotional injury, pain and suffering; one million euros for
loss of career path, promotion and decent pension; and costs.
3.
The complaint is irreceivable in accordance with Article VII,
paragraph 1,
of
the
Statute
of
the Tribunal
which
provides that "[a]
complaint shall not be receivable ...
- ... the Director General within three months, and that an appeal to the
Tribunal
be
allowed
only
if
the
internal
complaint filed pursuant
to
Article 92(2) has
been
rejected
by
express
or
implied
decision.
The
letter of 26 April 2018 cannot be considered as a final decision within
the meaning of Article VII, paragraph 1, of the Statute of the Tribunal.
Given that the internal means of redress are open to former Eurocontrol
officials, the complainant should have requested a review of the decision
by the Director General in accordance with the Staff Regulations.
4.
In any event, the Tribunal notes that the issue of the payment
of
his
retirement
pension is
now
moot
as
the
letter
of
14 February
2019 from the Head of the Legal Service has superseded the letter of
26 April 2018. In that 14 February 2019 letter, it was communicated
to the complainant, ...
- ...
his
retirement
pension is
now
moot
as
the
letter
of
14 February
2019 from the Head of the Legal Service has superseded the letter of
26 April 2018. In that 14 February 2019 letter, it was communicated
to the complainant, inter alia, that after a close review of his file, it
had been determined that he was indeed entitled to the payment of a
monthly retirement pension with effect from 1 March 2018. He was
informed
that
Eurocontrol
would
pay
him
the
monthly
retirement
pension as from March 2019 with retroactive effect from 1 March 2018,
calculated on the basis of his active employment from 1 April 1993 until
31 May 1995, plus interest on the late payment at a rate of 3.5 per cent
per annum for the period from March 2018 until February 2019.
5.
Despite having impugned the 26 April 2018 decision, which
exclusively
addressed the
issue
of
his
request
for ...
- ...
that
these
additional
claims
are
also
irreceivable
for failure
to
Judgment No. 4280
5
exhaust the internal
means
of
redress,
as
he
did
not
challenge, in
accordance
with
the
Staff
Regulations, any
of
the
decisions
not
to
reinstate him. The complainant's submission that his claims should be
considered "receivable by the Tribunal due to the fact that Eurocontrol
implicitly
made
a
decision
not
to
reinstate
[him]"
is
unfounded.
Regardless of the lack of evidence for this submission, the "implicit"
nature of an alleged decision does not relieve the complainant of the
requirement
to seek review
of
that
decision
in
accordance
with
the
Staff Regulations prior to bringing a complaint before the Tribunal.
6.
As the complainant has not brought any proper final decision ...
- Judgment 4279
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her internal complaint of psychological harassment.
- ... Eurocontrol
130th Session Judgment No. 4279
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms M. J. A. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 21 June 2018 and corrected on 2 July, Eurocontrol's reply of
12 October 2018, the complainant's rejoinder of 15 April 2019 and
Eurocontrol's surrejoinder of 25 July 2019;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... Eurocontrol)
on 21 June 2018 and corrected on 2 July, Eurocontrol's reply of
12 October 2018, the complainant's rejoinder of 15 April 2019 and
Eurocontrol's surrejoinder of 25 July 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 to reject her internal
complaint of psychological harassment. ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
A. M. (No. 5)
v.
Eurocontrol
130th Session Judgment No. 4279
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms M. J. A. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 21 June 2018 and corrected on 2 July, Eurocontrol's reply of
12 October 2018, the complainant's rejoinder of 15 April 2019 and
Eurocontrol's surrejoinder of 25 July 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 to reject her internal
complaint of psychological harassment.
At the material time, the complainant was assigned to ...
- ... translation,
the French text alone
being authoritative.
A. M. (No. 5)
v.
Eurocontrol
130th Session Judgment No. 4279
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the fifth complaint filed by Ms M. J. A. M. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 21 June 2018 and corrected on 2 July, Eurocontrol's reply of
12 October 2018, the complainant's rejoinder of 15 April 2019 and
Eurocontrol's surrejoinder of 25 July 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 to reject her internal
complaint of psychological harassment.
At the material time, the complainant was assigned to the
Directorate of Resources and had been engaged in staff union activities
since 1993. By ...
- ... was assigned to the
Directorate of Resources and had been engaged in staff union activities
since 1993. By a letter of 15 December 2015, she made a complaint of
psychological harassment against the Principal Director of Resources,
Mr V., to the Director General. In particular, she related an incident that
had taken place on 23 March 2015 while she was participating in a
consultation meeting with the Administration in her capacity as
President of the Union Syndicale Eurocontrol France.
In March 2016 the Director General appointed two investigators
who, at the material time, held positions of responsibility within
Eurocontrol. The complainant was interviewed on 3 May 2016 and
16 January 2017. Mr V. was interviewed on 12 and 13 January 2017.
Judgment No. 4279
2
In their report of 31 January 2017, the investigators concluded that
the harassment complaint was unfounded. They found that the incidents
reported did not satisfy ...
- ... of
psychological harassment against the Principal Director of Resources,
Mr V., to the Director General. In particular, she related an incident that
had taken place on 23 March 2015 while she was participating in a
consultation meeting with the Administration in her capacity as
President of the Union Syndicale Eurocontrol France.
In March 2016 the Director General appointed two investigators
who, at the material time, held positions of responsibility within
Eurocontrol. The complainant was interviewed on 3 May 2016 and
16 January 2017. Mr V. was interviewed on 12 and 13 January 2017.
Judgment No. 4279
2
In their report of 31 January 2017, the investigators concluded that
the harassment complaint was unfounded. They found that the incidents
reported did not satisfy the cumulative criteria establishing harassment,
that is to say abusive behaviour that occurs on a regular basis, over a
long period of time, is intentional ...
- ... complaint was unfounded. They found that the incidents
reported did not satisfy the cumulative criteria establishing harassment,
that is to say abusive behaviour that occurs on a regular basis, over a
long period of time, is intentional and causes prejudice. Specifically
with regard to the incident of 23 March 2015, the investigators found
that it could not constitute harassment within the meaning of Article 12a
of the Staff Regulations governing officials of the Eurocontrol Agency.
They considered that no disciplinary sanction should be applied, and
recommended that the Director General put in place as soon as possible
the rule of application setting out arrangements for implementing the
provisions of the Staff Regulations concerning harassment, including
detailed guidelines on how investigations should be conducted.
By letter of 15 May 2017, the Director General dismissed the
harassment complaint as unfounded. However, he considered that ...
- ... 2018. In her brief, she requests that the
Director General appoint one or more investigators with a certain degree
of experience to conduct an investigation into the events complained of,
during which she and particular witnesses should be interviewed. The
complainant claims the symbolic sum of one euro for the moral injury
suffered as a result of the harassment and the impact of the length of the
internal procedure on her health. She also seeks an award of costs.
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims as unfounded.
CONSIDERATIONS
1.
The complainant impugns the decision of 19 March 2018
by which the Director General of Eurocontrol dismissed her internal
complaint against the decision of 15 May 2017 rejecting her complaint
of psychological harassment against the then Principal Director of
Resources, Mr V.
In essence, that harassment complaint concerned conduct which
the complainant - who at the ...
- ... she and particular witnesses should be interviewed. The
complainant claims the symbolic sum of one euro for the moral injury
suffered as a result of the harassment and the impact of the length of the
internal procedure on her health. She also seeks an award of costs.
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims as unfounded.
CONSIDERATIONS
1.
The complainant impugns the decision of 19 March 2018
by which the Director General of Eurocontrol dismissed her internal
complaint against the decision of 15 May 2017 rejecting her complaint
of psychological harassment against the then Principal Director of
Resources, Mr V.
In essence, that harassment complaint concerned conduct which
the complainant - who at the material time was assigned to the
Directorate of Resources and was thus in the reporting line to Mr V. -
considered he had subjected her to in the performance of the staff union
responsibilities that ...
- ... 15 May 2017 rejecting her complaint
of psychological harassment against the then Principal Director of
Resources, Mr V.
In essence, that harassment complaint concerned conduct which
the complainant - who at the material time was assigned to the
Directorate of Resources and was thus in the reporting line to Mr V. -
considered he had subjected her to in the performance of the staff union
responsibilities that she also performed as President of the Union
Syndicale Eurocontrol France (USEF).
Judgment No. 4279
4
2.
Article 12a of the version of the Staff Regulations in force at
the time, which lays down the principle of the prohibition of all forms
of harassment within Eurocontrol, defines psychological harassment as
"any improper conduct that takes place over a period, is repetitive or
systematic and involves physical behaviour, spoken or written language,
gestures or other acts that are intentional and that may undermine ...
- ... to the
Directorate of Resources and was thus in the reporting line to Mr V. -
considered he had subjected her to in the performance of the staff union
responsibilities that she also performed as President of the Union
Syndicale Eurocontrol France (USEF).
Judgment No. 4279
4
2.
Article 12a of the version of the Staff Regulations in force at
the time, which lays down the principle of the prohibition of all forms
of harassment within Eurocontrol, defines psychological harassment as
"any improper conduct that takes place over a period, is repetitive or
systematic and involves physical behaviour, spoken or written language,
gestures or other acts that are intentional and that may undermine the
personality, dignity or physical or psychological integrity of any person".
The procedure for dealing with harassment complaints was, at the
material time, set out in the Policy on Protecting the Dignity of Staff at
Eurocontrol, ...
- ... defines psychological harassment as
"any improper conduct that takes place over a period, is repetitive or
systematic and involves physical behaviour, spoken or written language,
gestures or other acts that are intentional and that may undermine the
personality, dignity or physical or psychological integrity of any person".
The procedure for dealing with harassment complaints was, at the
material time, set out in the Policy on Protecting the Dignity of Staff at
Eurocontrol, issued pursuant to Office Notice 10/98 of 25 June 1998.
3.
In support of her complaint, the complainant submits, first,
that the two investigators who were appointed by the Director General
to investigate her complaint, and whose report concluded that it was
unfounded, did not offer the requisite guarantees of impartiality.
However, contrary to the view expressed by two of the four
members of the Joint Committee for Disputes in the latter's opinion of
21 December ...
- ... that it was
unfounded, did not offer the requisite guarantees of impartiality.
However, contrary to the view expressed by two of the four
members of the Joint Committee for Disputes in the latter's opinion of
21 December 2017, this argument cannot be accepted.
The investigators appointed in this case were the Director of the
Maastricht Upper Airspace Control Centre (MUAC) and the Agency's
Head of Internal Audit. Since the departments headed by those two
senior Eurocontrol's officials did not come under the Directorate of
Resources, the complainant is plainly wrong in contending that they
were under the authority of Mr V. The Tribunal notes, moreover, that
the officials in question considered it important to certify in their report
that they did not have a reporting relationship with any of the parties to
the dispute. While it is true that they were answerable to the Director
General for the performance of their ordinary professional duties, ...
- ... of their ordinary professional duties, that
did not preclude them, in this case, from being entrusted with the
investigation of the complaint in question, which was not directed
against the Director General.
4.
Theoretically, it would doubtless have been preferable, as the
Director General himself admitted in his decision of 15 May 2017, to
entrust the investigation into the harassment complaint against the
Principal Director of Resources to a person outside Eurocontrol. The
investigators in fact acknowledged that they had experienced some
"discomfort" in having to investigate Mr V.'s conduct. It is furthermore
Judgment No. 4279
5
regrettable that the Rule of Application, which, under the Article 12a of
the Staff Regulations, was to lay down the implementing provisions for
that article, had not yet been adopted when the harassment complaint at
issue was made, as the Rule did not come into force until 23 May 2017. ...
- ... of a properly-conducted procedure complying with the applicable
rules of law, if they involve an obvious error of judgement (see, for
example, Judgments 3593, under 12, 3682, under 8, 3831, under 28, or
3995, under 7).
8.
The complainant's harassment complaint of 15 December 2015
shows that her allegations against Mr V. mainly related to an incident
which occurred on 23 March 2015 on the fringe of a consultation
meeting between the Director General and Eurocontrol's unions at the
Organisation's headquarters.
According to the written submissions, during an informal meeting
between the complainant and Mr V. which took place, at his initiative,
in the corridor next to the meeting room before work recommenced
Judgment No. 4279
7
after the lunch break, Mr V. sharply criticised the complainant, as the
USEF President, for not having distanced herself from a joint demand
made by the various unions that one of her ...
- ... harassment, as defined by the Article 12a of the Staff
Regulations, by Mr V.
In addition, the Tribunal considers, in the light of the evidence, that
the complainant's allegations that there was an infringement of her right
to engage in staff union activities, recognised by Article 24a of the Staff
Regulations, and that she was discriminated against on the ground of
sex, in breach of Article 1b thereof, are unfounded.
15.
The complainant asks that Eurocontrol be ordered to pay her
symbolic compensation of one euro in redress for the various injuries
that she contends that the Organisation has caused her.
Insofar as that claim is based on the existence of the alleged
harassment or on the alleged unlawfulness of the impugned decision,
the foregoing considerations provide sufficient grounds for it to be
dismissed.
However, insofar as the complainant also contends, in support of
the same claim, that the investigation and internal ...
- ...
General took an excessively long time to open the investigation.
Judgment No. 4279
11
The evidence shows that the complainant and Mr V. were notified of
its opening on 31 January 2016 and that the investigators - the selection
of whom obviously required prior consideration owing to the nature
of Mr V.'s duties - were appointed on 6 March 2016, whereas the
complainant's harassment complaint, dated 15 December 2015, had
been received by Eurocontrol on 17 December. In the Tribunal's view,
these time frames show that the Organisation acted with sufficient
diligence in view of the circumstances of the case.
It is true that the investigation itself took an unusually long time
as the investigators did not submit their report until 31 January 2017.
However, the evidence shows that the delay was solely due to Mr V.'s
absence on medical grounds for most of 2016, which prevented him
from being interviewed by the investigators ...
- Judgment 4216
129th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the decision to cancel a competition procedure in which he took part.
- ... Eurocontrol
129th Session Judgment No. 4216
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the
fifth
complaint
filed
by
Mr P. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
8 March
2017
and
corrected
on
15 March,
Eurocontrol's reply
of
30 June, the
complainant's
rejoinder
of
19 September
2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C. (No. 5)
v.
Eurocontrol
129th Session Judgment No. 4216
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the
fifth
complaint
filed
by
Mr P. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
8 March
2017
and
corrected
on
15 March,
Eurocontrol's reply
of
30 June, the
complainant's
rejoinder
of
19 September
2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the additional information submitted by Eurocontrol
on 4 November 2019 at the Tribunal's request;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
C. (No. 5)
v.
Eurocontrol
129th Session Judgment No. 4216
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the
fifth
complaint
filed
by
Mr P. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
8 March
2017
and
corrected
on
15 March,
Eurocontrol's reply
of
30 June, the
complainant's
rejoinder
of
19 September
2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the additional information submitted by Eurocontrol
on 4 November 2019 at the Tribunal's request;
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 ...
- ... (No. 5)
v.
Eurocontrol
129th Session Judgment No. 4216
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the
fifth
complaint
filed
by
Mr P. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
8 March
2017
and
corrected
on
15 March,
Eurocontrol's reply
of
30 June, the
complainant's
rejoinder
of
19 September
2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the additional information submitted by Eurocontrol
on 4 November 2019 at the Tribunal's request;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The
complainant
challenges
the lawfulness of the ...
- ...
T
RIBUNAL
,
Considering the
fifth
complaint
filed
by
Mr P. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
8 March
2017
and
corrected
on
15 March,
Eurocontrol's reply
of
30 June, the
complainant's
rejoinder
of
19 September
2017 and
Eurocontrol's surrejoinder of 17 January 2018;
Considering the additional information submitted by Eurocontrol
on 4 November 2019 at the Tribunal's request;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The
complainant
challenges
the lawfulness of the decision
to
cancel a competition procedure in which he took part.
Details
of
the ...
- ...
of
the
complainant's
employment
history
can
be
found,
inter
alia,
in
Judgment 4080,
dealing
with his
fourth
complaint.
At
the material
time,
the
complainant
was
assigned
to
the
Network
Management
Directorate.
On
17 June
2015 he
was
appointed as
"chargé de l'installation" in that Directorate.
Judgment No. 4216
2
On 21 May 2015 Eurocontrol published a vacancy notice for the
post of Team Leader, Exploitation Facilities, in the same Directorate.
The complainant applied and, having been included on the short list, he
took a technical test, was interviewed by the selection board and, on
31 August, sat assessment centre tests. On 25 September the selection
board noted that
the
assessment
centre
tests
had
issued
a
"negative
recommendation" for both the candidates who were still in ...
- ... that the Tribunal set aside that decision
and order his appointment - with all legal consequences that this entails -
to the post in question with retroactive effect from 11 December 2015.
He also seeks compensation of 80,000 euros for the moral injury that he
considers he has suffered, 5,000 euros in costs, and an additional award
of 5,000 euros for the costs relating to the internal appeal proceedings
and to disciplinary proceedings that were brought against him.
Eurocontrol
submits
that
the
complaint
should
be
dismissed
as
groundless.
CONSIDERATIONS
1.
The complainant impugns the decision of 13 December 2016
by which the Director General of Eurocontrol dismissed, for the most
part, his internal complaint challenging the cancellation of the competition
procedure advertised on 21 May 2015 to fill the post of Team Leader,
Exploitation Facilities, in the Network Management Directorate.
*
Registry's ...
- ... euros for the moral injury that he
considers he has suffered, 5,000 euros in costs, and an additional award
of 5,000 euros for the costs relating to the internal appeal proceedings
and to disciplinary proceedings that were brought against him.
Eurocontrol
submits
that
the
complaint
should
be
dismissed
as
groundless.
CONSIDERATIONS
1.
The complainant impugns the decision of 13 December 2016
by which the Director General of Eurocontrol dismissed, for the most
part, his internal complaint challenging the cancellation of the competition
procedure advertised on 21 May 2015 to fill the post of Team Leader,
Exploitation Facilities, in the Network Management Directorate.
*
Registry's translation.
Judgment No. 4216
4
The complainant considers that the cancellation of that competition
procedure, in which the selection board had ranked him first on the list
of suitable candidates, ...
- ...
application for the post in question be re-examined and not - as the
Director General evidently wrongly considered - that the complainant
not be appointed to it.
As
the
Director
General
thus
misconstrued
the purport
of
the
recommendation which he endorsed, his decision was tainted with a
further flaw in addition to the one identified above.
9.
It follows from the foregoing that the decisions of the Director
General of Eurocontrol of 13 December 2016 and 7 December 2015 must
be set aside, without there being any need to examine the complainant's
other pleas.
10.
Contrary to what the complainant submits, the setting aside of
those decisions does not in itself imply that the Director General was
obliged to
appoint
him
to the aforementioned post following
the
Judgment No. 4216
8
competition
procedure.
Under
the
case
law
cited
in ...
- ... him retroactively to the
post in question from December 2015, with all the legal consequences
that this entails, must therefore be dismissed.
It is true that the Tribunal could have considered making such an
order if, as the complainant submits, the refusal to appoint him was in
fact explained by a desire to undermine or exert pressure on him in the
context of the disciplinary proceedings brought against him during the
same period following a workplace accident at Eurocontrol's premises.
The Director General's decision would in that case have involved an
abuse of authority warranting exceptional redress. However, the evidence
in the file does not enable the Tribunal to conclude that those disciplinary
proceedings - referred to in Judgment 4080 on the complainant's fourth
complaint - played a part in the process that culminated in the decision
impugned in these proceedings.
11.
At
this
stage
in
its
findings,
the ...
- ...
competition
procedure,
this
time
basing his assessment on a consideration of the exact substance of the
findings of the selection board.
However,
the
response
to
the
Tribunal's
request
for
further
information shows
that
the
complainant
retired
on
1 January
2019.
Since the issue of his possible appointment to the post in question has
become moot, it is not advisable to remit the case to Eurocontrol, but
the Tribunal will award the complainant compensation for the various
injuries caused
to
him
by
the contested decisions, as foreseen
by
Article VIII of the Statute of the Tribunal in cases of this type.
12.
The complainant, who, as stated above, was ranked first on
the list of suitable candidates drawn up by the selection board for the
competition, was deprived, by the flaws in the decisions in question, of
a valuable opportunity to be appointed ...
- ...
are
not evident from the written submissions in this case.
Finally, for
the
same
reason the
complainant
is not entitled
to
reimbursement of the fees of his legal counsel for the aforementioned
disciplinary proceedings, which, as previously stated, cannot be regarded
as having a direct link with this case.
Judgment No. 4216
10
DECISION
For the above reasons,
1.
The decisions of the Director General of Eurocontrol of 13 December
2016 and 7 December 2015 are set aside.
2.
The
Organisation
shall
pay
the complainant
compensation of
25,000 euros under all heads.
3.
It shall also pay him costs in the amount of 5,000 euros.
4.
All other claims are dismissed.
In
witness
of
this
judgment,
adopted
on 11 November
2019,
Mr Patrick Frydman, President of the Tribunal, Ms Fatoumata Diakité,
Judge, and Mr Yves Kreins, Judge, ...
- Judgment 4168
128th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the retroactive calculation of his salary after he was promoted.
- ... Eurocontrol
128th Session Judgment No. 4168
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr D. T. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 5 July
2016 and corrected on 26 July, Eurocontrol's reply of 28 October 2016,
the
complainant's
rejoinder
of
6 February
2017
and
Eurocontrol's
surrejoinder of 12 May 2017;
Considering Articles II, paragraph 5, and VII of the Statute ...
- ... internationale du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
T.
v.
Eurocontrol
128th Session Judgment No. 4168
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr D. T. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 5 July
2016 and corrected on 26 July, Eurocontrol's reply of 28 October 2016,
the
complainant's
rejoinder
of
6 February
2017
and
Eurocontrol's
surrejoinder of 12 May 2017;
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: ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
T.
v.
Eurocontrol
128th Session Judgment No. 4168
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr D. T. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 5 July
2016 and corrected on 26 July, Eurocontrol's reply of 28 October 2016,
the
complainant's
rejoinder
of
6 February
2017
and
Eurocontrol's
surrejoinder of 12 May 2017;
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 retroactive calculation ...
- ... French text alone
being authoritative.
T.
v.
Eurocontrol
128th Session Judgment No. 4168
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr D. T. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 5 July
2016 and corrected on 26 July, Eurocontrol's reply of 28 October 2016,
the
complainant's
rejoinder
of
6 February
2017
and
Eurocontrol's
surrejoinder of 12 May 2017;
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 retroactive calculation of his salary
after he was promoted.
On 1 July 2008 a wide-ranging administrative reform entered into
force at ...
- ... of 12 May 2017;
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 retroactive calculation of his salary
after he was promoted.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, aiming to modernise human resource management
by, in particular, placing emphasis on staff performance; details of this
reform
are
explained
in
Judgment 3189.
The
reform
involved
the
establishment of a new structure comprising more grades and fewer
steps and, therefore, of a new salary scale. Given the aim of the reform,
it was intended to
have no adverse
effect
on
the
situation
of
staff
members. Accordingly, under ...
- ... performance; details of this
reform
are
explained
in
Judgment 3189.
The
reform
involved
the
establishment of a new structure comprising more grades and fewer
steps and, therefore, of a new salary scale. Given the aim of the reform,
it was intended to
have no adverse
effect
on
the
situation
of
staff
members. Accordingly, under Article 7 of Part 2 of Annex XIII to the
Staff Regulations governing officials of the Eurocontrol Agency, all
Judgment No. 4168
2
officials
recruited
before
1 July 2008
were
to
have,
in
the
new
classification of functions, a grade offering remuneration and scope for
increases equivalent to those offered by the grade which they had held
under
the
previous
classification. That
result
was
to be achieved by
applying a multiplication factor equal to the ratio between the basic
salary paid ...
- ... cancelled.
The complainant filed his complaint with the Tribunal on 5 July
2016. He indicates that he impugns the implicit decision to dismiss his
internal
complaint
of
12 December 2015, as supplemented
on
28 January 2016, and asks the Tribunal to set aside that decision, his
pay slip of 31 October 2015 and all his subsequent pay slips insofar as
they did not apply the multiplication factor of 1 in his case. He also
claims 5,000 euros in costs.
Eurocontrol
submits
that
the
complaint should be
dismissed
as
groundless.
CONSIDERATIONS
1.
The
complainant
impugns
the
implicit
decision
of
the
Director General of Eurocontrol to dismiss his internal complaint of
12 December 2015, as supplemented on 28 January 2016. He asks for
his pay slip of 31 October 2015 and subsequent pay slips to be set aside
insofar
as
the
multiplication
factor
applied
in ...
- ... January 2016, and asks the Tribunal to set aside that decision, his
pay slip of 31 October 2015 and all his subsequent pay slips insofar as
they did not apply the multiplication factor of 1 in his case. He also
claims 5,000 euros in costs.
Eurocontrol
submits
that
the
complaint should be
dismissed
as
groundless.
CONSIDERATIONS
1.
The
complainant
impugns
the
implicit
decision
of
the
Director General of Eurocontrol to dismiss his internal complaint of
12 December 2015, as supplemented on 28 January 2016. He asks for
his pay slip of 31 October 2015 and subsequent pay slips to be set aside
insofar
as
the
multiplication
factor
applied
in
his
case
was
reduced
from 1 to 0.9816196 on his promotion to grade AD10 with retroactive
effect from 1 July 2015.
2.
The Tribunal considers it regrettable that the complainant's
internal
complaint ...
- ... to 1.
By
a
decision
of
the
Director
General
of
26 October
2015,
the
complainant
was
promoted
to
grade AD10,
step 1,
with
retroactive
effect from 1 July 2015. At that juncture, the multiplication factor which
was applied in his case was put back to 0.9816196.
4.
The complainant contends that by reducing retroactively the
multiplication
factor
that
had
been assigned
to him, Eurocontrol
breached Article 7(6) of Part 2 of Annex XIII to the Staff Regulations
and the general principle of respect for acquired rights. He considers
that as of 30 June 2015 he had acquired the two years of seniority in his
step and that, as a result, the multiplication factor of 1 was applicable to
him as of 1 July 2015 and should have been applied when he was promoted.
Judgment No. 4168
5
In this case, the two-year period began to run on 1 July 2013 ...
- ... be calculated on step advancement. This was
due
to occur on
1 July
2015.
The
multiplication
factor
was
indeed
recalculated on that date and reached the level of 1, but, for a reason
that is not clear from the file, the step advancement was not granted.
From 1 July to 26 October 2015 the complainant received a salary
to which the multiplication factor of 1 was applied, which had been
assigned to him in accordance with the applicable rules. Eurocontrol
could not retroactively reduce it without breaching the principle of the
non-retroactivity of administrative acts (see Judgment 3185, under 7(b)).
It follows that the plea is well-founded.
5.
The implicit decision of the Director General to dismiss the
complainant's internal complaint must therefore be set aside without
there being any need to examine the other pleas. The same applies to
the pay slip of 31 October 2015 and to subsequent pay slips insofar as
the ...
- ... administrative acts (see Judgment 3185, under 7(b)).
It follows that the plea is well-founded.
5.
The implicit decision of the Director General to dismiss the
complainant's internal complaint must therefore be set aside without
there being any need to examine the other pleas. The same applies to
the pay slip of 31 October 2015 and to subsequent pay slips insofar as
the
multiplication
factor
applied
was
reduced
from 1
to 0.9816196.
Eurocontrol
shall
ensure
that
the
complainant's
remuneration
is
calculated as if the multiplication factor of 1 had been applied in his
case from 1 July 2015.
6.
As the complainant succeeds, he is entitled to costs, which the
Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The Director General's implicit decision to dismiss the complainant's
internal
complaint
of
12 December
2015,
as
supplemented ...
- ...
1.
The Director General's implicit decision to dismiss the complainant's
internal
complaint
of
12 December
2015,
as
supplemented
on
28 January 2016, is set aside.
Judgment No. 4168
6
2.
The
pay slip
of
31 October
2015
and subsequent
pay
slips
are
set aside insofar
as
the
multiplication
factor
was
reduced
from
1 to 0.9816196,
and
Eurocontrol
shall
proceed
as
indicated in
consideration 5, above.
3.
Eurocontrol shall pay the complainant 5,000 euros in costs.
In witness of this judgment, adopted on 9 May 2019, Mr Patrick
Frydman, Vice-President of the Tribunal, Ms Fatoumata Diakité, Judge,
and
Mr
Yves
Kreins,
Judge,
sign
below,
as
do
I,
Dražen
Petrovic,
Registrar.
Delivered in public in Geneva on 3 July 2019.
(Signed)
P
ATRICK
F
RYDMAN
F
ATOUMATA ...
- ...
complaint
of
12 December
2015,
as
supplemented
on
28 January 2016, is set aside.
Judgment No. 4168
6
2.
The
pay slip
of
31 October
2015
and subsequent
pay
slips
are
set aside insofar
as
the
multiplication
factor
was
reduced
from
1 to 0.9816196,
and
Eurocontrol
shall
proceed
as
indicated in
consideration 5, above.
3.
Eurocontrol ...
- Judgment 4167
128th Session, 2019
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 reject her complaint of psychological harassment and seeks compensation for the injury she considers she has suffered.
- ... Eurocontrol
128th Session Judgment No. 4167
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Mrs B. J. A. T. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
22 November 2016 and corrected on 7 December 2016, Eurocontrol's
reply of 10 March 2017, the complainant's rejoinder of 27 April and
Eurocontrol's surrejoinder of 27 July 2017;
Considering Articles II, paragraph 5, and VII of the ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
T.
v.
Eurocontrol
128th Session Judgment No. 4167
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Mrs B. J. A. T. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
22 November 2016 and corrected on 7 December 2016, Eurocontrol's
reply of 10 March 2017, the complainant's rejoinder of 27 April and
Eurocontrol's surrejoinder of 27 July 2017;
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 ...
- ...
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
T.
v.
Eurocontrol
128th Session Judgment No. 4167
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Mrs B. J. A. T. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
22 November 2016 and corrected on 7 December 2016, Eurocontrol's
reply of 10 March 2017, the complainant's rejoinder of 27 April and
Eurocontrol's surrejoinder of 27 July 2017;
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 Director General's decision to reject
her complaint of ...
- ... French text alone
being authoritative.
T.
v.
Eurocontrol
128th Session Judgment No. 4167
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Mrs B. J. A. T. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
22 November 2016 and corrected on 7 December 2016, Eurocontrol's
reply of 10 March 2017, the complainant's rejoinder of 27 April and
Eurocontrol's surrejoinder of 27 July 2017;
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 Director General's decision to reject
her complaint of psychological harassment and seeks compensation for
the injury she considers she has ...
- ... 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 Director General's decision to reject
her complaint of psychological harassment and seeks compensation for
the injury she considers she has suffered.
The complainant joined Eurocontrol on 1 February 2002. Assigned
to the Internal Audit Service as of 1 July 2013, she was placed under
the direct supervision of Ms F. from 1 February 2014 until May 2015,
when she was reassigned at her own request.
On
20 July
2015 the
complainant
lodged
a
complaint
of
psychological harassment against Ms F. and requested the opening of
an
administrative
inquiry.
In
particular,
she
alleged
that
Ms F.
had
gradually ...
- ... of his
decision to initiate a preliminary investigation. The complainant was heard
on 14 January 2016. On 15 March the Director General informed her
that based on the facts established during the preliminary investigation,
the situation could not be regarded as psychological harassment in the
workplace, in particular because of Ms F.'s lack of intention, which was
required
by
Article 12a of
the
Staff
Regulations
governing
officials
of the Eurocontrol Agency, and that no sanction would therefore be
imposed on Ms F. The Director General further pointed out that both
parties had "suffered from [their] difficult relations"
ż
and offered to
allow the complainant to
remain
in
the
post
to
which
she
had
been
reassigned in order to ensure the stability of her professional situation.
On 27 April 2016 the complainant lodged an internal complaint
with the Director General seeking the setting ...
- ... Tribunal impugning the implied decision
to
reject
her internal complaint.
The complainant
asks
the Tribunal
to set aside that decision as well as the decision of 15 March 2016.
She seeks
compensation
for
the
moral
and
material
injury
suffered,
ż
Registry's translation.
Judgment No. 4167
3
amounting to 20,000 euros and 1 938,06 euros respectively, as well as
costs.
In its reply, Eurocontrol informs the Tribunal that, on 12 October
2016, the Joint Committee for Disputes delivered its opinion. Its members
considered that they were not in a position to provide an opinion on the
merits of the case, because they had not had access to a summary of the
facts, or to the documents and conclusions of the investigators, and they
therefore requested that the case be reconsidered at a later session, once
these
items
had
been forwarded
to
them.
By ...
- ... or to the documents and conclusions of the investigators, and they
therefore requested that the case be reconsidered at a later session, once
these
items
had
been forwarded
to
them.
By
a
memorandum
dated
13 December 2016, to which the Committee's opinion was appended,
the Director General informed the complainant that he did not share the
Committee's opinion and rejected the complaint on the grounds that it
was
unfounded. Eurocontrol
asks
the Tribunal to
reject
all
the
complainant's claims as unfounded.
In her rejoinder, the complainant reiterates her claims. She also
seeks the setting aside of the decision of 13 December 2016.
In its surrejoinder, Eurocontrol maintains its position.
CONSIDERATIONS
1.
Although it was initially directed against an implied decision
rejecting the complainant's internal complaint, the present complaint
must now be seen as impugning the express ...
- ... 2016, to which the Committee's opinion was appended,
the Director General informed the complainant that he did not share the
Committee's opinion and rejected the complaint on the grounds that it
was
unfounded. Eurocontrol
asks
the Tribunal to
reject
all
the
complainant's claims as unfounded.
In her rejoinder, the complainant reiterates her claims. She also
seeks the setting aside of the decision of 13 December 2016.
In its surrejoinder, Eurocontrol maintains its position.
CONSIDERATIONS
1.
Although it was initially directed against an implied decision
rejecting the complainant's internal complaint, the present complaint
must now be seen as impugning the express decision of 13 December
2016 by which the Director General informed the complainant that he
had decided to dismiss her internal complaint against the decision of
15 March 2016 rejecting her complaint of psychological harassment
(see Judgments 4018, ...
- ... be set aside.
At this stage of its findings, the Tribunal should, in principle, remit
the
case
to
the
Organisation
for
a fresh
examination
of
the
internal
complaint of 27 April 2016. However, in the present case, taking into
account
the
elements
of
the
file,
and
in
particular
the
time that has
elapsed since the facts, the Tribunal considers it appropriate not to remit
the
case
to
Eurocontrol
and
to
examine
itself
the
lawfulness of
the
decision of 15 March 2016.
6.
In seeking the setting aside of this decision, the complainant
submits, inter alia, that the Director General erred in law by rejecting
her complaint of harassment on the grounds that Article 12a(3) of the
Staff Regulations must be interpreted as meaning that the intention to
harass is a necessary condition for establishing harassment.
7.
At
the material ...
- ... according to her, from the harassment she allegedly
suffered.
However,
the
documents
on
file
do
not
establish
a
causal
link
between these expenses and the alleged harassment. This claim will
therefore be rejected.
11.
As she succeeds for the most part, the complainant is entitled
to costs, which the Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The decisions of the Director General of Eurocontrol of 15 March
2016 and 13 December 2016 are set aside.
2.
Eurocontrol
shall
pay
the complainant 20,000 euros
in
moral
damages.
3.
It shall also pay her 5,000 euros in costs.
4.
All other claims are dismissed.
Judgment No. 4167
8
In witness of this judgment, adopted on 10 May 2019, Mr Patrick
Frydman, Vice-President of the Tribunal, Ms Fatoumata Diakité, Judge,
and Mr
Yves
Kreins,
Judge,
sign ...
- ...
documents
on
file
do
not
establish
a
causal
link
between these expenses and the alleged harassment. This claim will
therefore be rejected.
11.
As she succeeds for the most part, the complainant is entitled
to costs, which the Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The decisions of the Director General of Eurocontrol of 15 March
2016 and 13 December 2016 are set aside.
2.
Eurocontrol
shall
pay
the complainant 20,000 euros
in
moral
damages.
3.
It shall also pay her 5,000 euros in costs.
4.
All other claims are dismissed.
Judgment No. 4167
8
In witness of this judgment, adopted on 10 May 2019, Mr Patrick
Frydman, Vice-President of the Tribunal, Ms Fatoumata Diakité, Judge,
and Mr
Yves
Kreins,
Judge,
sign
below,
as
do
I,
Dražen
Petrovic,
Registrar.
Delivered ...
- Judgment 4166
128th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s decision to recover various sums which it considers were unduly paid to him.
- ... Eurocontrol
128th Session Judgment No. 4166
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the complaint
filed
by Mr A. F. d. S. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
25 November
2015
and
corrected
on
9 December
2015,
Eurocontrol's
reply
of
14 April
2016,
corrected
on
4 May,
the
complainant's rejoinder of 28 June and Eurocontrol's surrejoinder ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
F. d. S.
v.
Eurocontrol
128th Session Judgment No. 4166
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the complaint
filed
by Mr A. F. d. S. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
25 November
2015
and
corrected
on
9 December
2015,
Eurocontrol's
reply
of
14 April
2016,
corrected
on
4 May,
the
complainant's rejoinder of 28 June and Eurocontrol's surrejoinder of
21 October 2016;
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 ...
- ... Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
F. d. S.
v.
Eurocontrol
128th Session Judgment No. 4166
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the complaint
filed
by Mr A. F. d. S. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
25 November
2015
and
corrected
on
9 December
2015,
Eurocontrol's
reply
of
14 April
2016,
corrected
on
4 May,
the
complainant's rejoinder of 28 June and Eurocontrol's surrejoinder of
21 October 2016;
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 ...
- ...
v.
Eurocontrol
128th Session Judgment No. 4166
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the complaint
filed
by Mr A. F. d. S. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
25 November
2015
and
corrected
on
9 December
2015,
Eurocontrol's
reply
of
14 April
2016,
corrected
on
4 May,
the
complainant's rejoinder of 28 June and Eurocontrol's surrejoinder of
21 October 2016;
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
recover
various sums which it considers were unduly paid to him.
The complainant joined Eurocontrol ...
- ...
reply
of
14 April
2016,
corrected
on
4 May,
the
complainant's rejoinder of 28 June and Eurocontrol's surrejoinder of
21 October 2016;
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
recover
various sums which it considers were unduly paid to him.
The complainant joined Eurocontrol in 1990. On 2 May 2000 he
informed
the Administration
of
his
marriage,
which
took
place
on
15 April 2000, and requested that his wife's son be recognised as a
dependent child, a request which was granted on 14 July 2000. In 2003
the
complainant
and
his
wife
had
a
daughter.
On 3 March 2009, ...
- ... surrejoinder of
21 October 2016;
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
recover
various sums which it considers were unduly paid to him.
The complainant joined Eurocontrol in 1990. On 2 May 2000 he
informed
the Administration
of
his
marriage,
which
took
place
on
15 April 2000, and requested that his wife's son be recognised as a
dependent child, a request which was granted on 14 July 2000. In 2003
the
complainant
and
his
wife
had
a
daughter.
On 3 March 2009,
however, they were divorced. On 17 September 2009 the complainant
sent the Administration a change of family status form ...
- ... did not complete the sections of the form entitled
Judgment No. 4166
2
"Dependent
child(ren)"
ż
and "No longer
dependent
child(ren)"
*
but
designated his former spouse's son and their daughter as beneficiaries
of the health insurance scheme as dependent children "within the meaning
of Article 2 of Rule of application No. 7" concerning remuneration.
The two children thus continued to benefit from top-up cover under the
Eurocontrol health insurance scheme.
In
March
2014,
at
the
request
of
the Administration,
the
complainant submitted,
for
his
former
spouse's
son,
a
certificate
of
schooling together with a certificate of enrolment in a school for the
2013/2014 school year. On 14 May he was informed that based on the
information in his file, he was not entitled to family allowances for the
two children beyond the date of the divorce, namely ...
- ... that he
had provided all relevant documents in 2009 and that he inferred from
the fact that he was receiving family allowances for his daughter that
they had been recorded in his file. According to him, if his file was
incomplete, this was because some documents had been lost.
On 11 July 2014 the complainant was informed that, following his
divorce,
his former
spouse's son
could
no
longer
be
considered
a
dependent child and that Eurocontrol would therefore have to recover
undue payments. The complainant replied that his former spouse's son
had been recognised by Eurocontrol as a dependent child on 14 July
2000 and that, if, as a result of his divorce, the latter's administrative
status had changed, the Organisation should have informed him of this.
According to him, Eurocontrol had to take responsibility for its errors.
By letter of 15 October 2014 the Directorate of Resources informed
the complainant that, ...
- ... his daughter that
they had been recorded in his file. According to him, if his file was
incomplete, this was because some documents had been lost.
On 11 July 2014 the complainant was informed that, following his
divorce,
his former
spouse's son
could
no
longer
be
considered
a
dependent child and that Eurocontrol would therefore have to recover
undue payments. The complainant replied that his former spouse's son
had been recognised by Eurocontrol as a dependent child on 14 July
2000 and that, if, as a result of his divorce, the latter's administrative
status had changed, the Organisation should have informed him of this.
According to him, Eurocontrol had to take responsibility for its errors.
By letter of 15 October 2014 the Directorate of Resources informed
the complainant that, since his former spouse's son could no longer be
considered as a dependent child, the recovery of undue payments would
be made in respect ...
- ... his
divorce,
his former
spouse's son
could
no
longer
be
considered
a
dependent child and that Eurocontrol would therefore have to recover
undue payments. The complainant replied that his former spouse's son
had been recognised by Eurocontrol as a dependent child on 14 July
2000 and that, if, as a result of his divorce, the latter's administrative
status had changed, the Organisation should have informed him of this.
According to him, Eurocontrol had to take responsibility for its errors.
By letter of 15 October 2014 the Directorate of Resources informed
the complainant that, since his former spouse's son could no longer be
considered as a dependent child, the recovery of undue payments would
be made in respect of all the benefits paid to him for that child since the
date
of
his
divorce,
amounting
to
a total of
36,926.16 euros,
in
accordance with Article 87 of the Staff Regulations ...
- ... errors.
By letter of 15 October 2014 the Directorate of Resources informed
the complainant that, since his former spouse's son could no longer be
considered as a dependent child, the recovery of undue payments would
be made in respect of all the benefits paid to him for that child since the
date
of
his
divorce,
amounting
to
a total of
36,926.16 euros,
in
accordance with Article 87 of the Staff Regulations governing officials
of the Eurocontrol Agency.
ż
Registry's translation.
Judgment No. 4166
3
On 7 January 2015 the complainant lodged an internal complaint
against the decision of 15 October 2014, which he considered unlawful
in
light
of
the
provisions
of Article 87.
On
14 July
2015 the
Joint
Committee for Disputes issued a divided opinion. Two of its members
considered
that
there
had
been
a
breach
of
the "duty ...
- ...
dependent
on
him. Consequently,
the
Director
General had decided to apply Article 87 of the Staff Regulations on the
recovery of undue payments received during the last five years. That is
the impugned decision.
The
complainant
asks
the
Tribunal
to
set
aside
the
decision
of
15 October 2014 to recover the sum of 36,926.16 euros and to award
him a sum of 36,900 euros by way of moral damages and costs.
Eurocontrol asks the Tribunal to reject the complainant's claim for
moral damages as irreceivable and to dismiss all his claims as unfounded.
Judgment No. 4166
4
CONSIDERATIONS
1.
The complainant asks the Tribunal, firstly, to set aside the
decision of 15 October 2014 to recover the sum of 36,926.16 euros and,
secondly, to order Eurocontrol to pay an overall amount of 36,900 euros
in compensation for the moral injury he considers he has suffered and
for ...
- ... the sum of 36,926.16 euros and to award
him a sum of 36,900 euros by way of moral damages and costs.
Eurocontrol asks the Tribunal to reject the complainant's claim for
moral damages as irreceivable and to dismiss all his claims as unfounded.
Judgment No. 4166
4
CONSIDERATIONS
1.
The complainant asks the Tribunal, firstly, to set aside the
decision of 15 October 2014 to recover the sum of 36,926.16 euros and,
secondly, to order Eurocontrol to pay an overall amount of 36,900 euros
in compensation for the moral injury he considers he has suffered and
for his costs.
2.
Eurocontrol submits that the claim for moral damages, which
was not raised in the internal appeal proceedings, is inadmissible.
3.
Under article 87 of the Staff Regulations:
"Any sum overpaid shall be recovered if the recipient was aware that there
was no due reason for the payment or if the fact of the overpayment was
patently ...
- ... claim for
moral damages as irreceivable and to dismiss all his claims as unfounded.
Judgment No. 4166
4
CONSIDERATIONS
1.
The complainant asks the Tribunal, firstly, to set aside the
decision of 15 October 2014 to recover the sum of 36,926.16 euros and,
secondly, to order Eurocontrol to pay an overall amount of 36,900 euros
in compensation for the moral injury he considers he has suffered and
for his costs.
2.
Eurocontrol submits that the claim for moral damages, which
was not raised in the internal appeal proceedings, is inadmissible.
3.
Under article 87 of the Staff Regulations:
"Any sum overpaid shall be recovered if 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.
The request for recovery must be made no later than five years from the date
on which the sum was paid. ...
- ... the meaning of those
provisions.
Since, by virtue of the abovementioned case law, the complainant
must be deemed to have been aware of the provisions in question, it
must be considered that he was aware of the irregularity of the payments
which he received unduly. Accordingly the Organisation was entitled,
pursuant to the first paragraph of Article 87 of the Staff Regulations, to
proceed with the recovery of the sums concerned.
While the complainant criticises Eurocontrol for not notifying him
of a decision that it did not recognise this child as being his dependant,
there was no provision requiring the Organisation to notify him of such
a decision before taking the decision to recover the undue payments.
5.
The
complainant's second
plea is based
on
the
limitation
period applicable to the contested claim. He explains that, in accordance
with Article 87 of the Staff Regulations, the request for recovery must
be ...
- ... was no provision requiring the Organisation to notify him of such
a decision before taking the decision to recover the undue payments.
5.
The
complainant's second
plea is based
on
the
limitation
period applicable to the contested claim. He explains that, in accordance
with Article 87 of the Staff Regulations, the request for recovery must
be made no later than five years from the date on which the sum was
paid, i.e. before March 2014.
Eurocontrol argues that, pursuant to Article 87(2), no limitation period
applies because the complainant deliberately misled the Organisation.
However,
the
Tribunal finds
that,
while it
is
established
that
the
Organisation was indeed misled by the complainant, in particular because,
on 17 September 2009, he incorrectly completed a form concerning a
change
of
family
status, Eurocontrol
has
not
proved
that
he
did
so
deliberately. ...
- ... on which the sum was
paid, i.e. before March 2014.
Eurocontrol argues that, pursuant to Article 87(2), no limitation period
applies because the complainant deliberately misled the Organisation.
However,
the
Tribunal finds
that,
while it
is
established
that
the
Organisation was indeed misled by the complainant, in particular because,
on 17 September 2009, he incorrectly completed a form concerning a
change
of
family
status, Eurocontrol
has
not
proved
that
he
did
so
deliberately.
Judgment No. 4166
6
Eurocontrol also argues that the limitation period did not begin to
run until it became aware of the irregularity, in March 2014, after it
asked the complainant, on 8 January 2014, to provide it with documents
proving that his former spouse's son was a dependent child. However,
contrary
to
its
allegations,
it is
clear from
Article 87(2) ...
- ... because the complainant deliberately misled the Organisation.
However,
the
Tribunal finds
that,
while it
is
established
that
the
Organisation was indeed misled by the complainant, in particular because,
on 17 September 2009, he incorrectly completed a form concerning a
change
of
family
status, Eurocontrol
has
not
proved
that
he
did
so
deliberately.
Judgment No. 4166
6
Eurocontrol also argues that the limitation period did not begin to
run until it became aware of the irregularity, in March 2014, after it
asked the complainant, on 8 January 2014, to provide it with documents
proving that his former spouse's son was a dependent child. However,
contrary
to
its
allegations,
it is
clear from
Article 87(2)
that
the
limitation period begins to run from the date on which the payments
were
made
and
not
from
the ...
- ... considers that there is no reason to grant him compensation in
this respect.
8.
As he succeeds
in
part,
the complainant
will
be
awarded
300 euros in costs.
Judgment No. 4166
7
DECISION
For the above reasons,
1.
The impugned decision is set aside to the extent that it concerns the
recovery of the sums unduly received by the complainant during
the period prior to 15 October 2009.
2.
Eurocontrol shall pay the complainant 300 euros in costs.
3.
All other claims are dismissed.
In witness of this judgment, adopted on 9 May 2019, Mr Patrick
Frydman, Vice-President of the Tribunal, Ms Fatoumata Diakité, Judge,
and
Mr
Yves
Kreins,
Judge,
sign
below,
as
do
I,
Dražen
Petrovic,
Registrar.
Delivered in public in Geneva on 3 July 2019.
(Signed)
P
ATRICK
F
RYDMAN
F
ATOUMATA
D
IAKITÉ
Y
VES ...
- Judgment 4122
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application for review of Judgment 4016.
- ... Eurocontrol
(Application for review)
127th Session Judgment No. 4122
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the application for review of Judgment 4016 filed by
Mr I. A. on 2 November 2018;
Considering Articles II, paragraph 5, and VI, paragraph 1, of the
Statute of the Tribunal and Article 7 of its Rules;
Having examined the written submissions;
CONSIDERATIONS
1.
The complainant
requests
the
review
of
Judgment 4016, ...
- ... II, paragraph 5, and VI, paragraph 1, of the
Statute of the Tribunal and Article 7 of its Rules;
Having examined the written submissions;
CONSIDERATIONS
1.
The complainant
requests
the
review
of
Judgment 4016,
delivered in public on 26 June 2018, by which the Tribunal dismissed
his
fifth complaint
filed
on 29 March
2016 against
the
European
Organisation
for the
Safety
of
Air
Navigation
(Eurocontrol).
In
that
complaint,
the
complainant,
who
was an
air
traffic
controller
at
the
Maastricht Upper Area Control Centre, challenged the decision not to
extend his appointment beyond the mandatory retirement age. His main
argument was that paragraph 2 of Article 53 of the General Conditions
of Employment (GCE), which provided at the material time that air
traffic controllers recruited after 2 May 1990 would be retired on the
last ...
- ... decision in Judgment 4016 the Tribunal made a material error.
In his view, in order to determine whether there had been any unlawful
difference of treatment, the Tribunal ought to have compared the treatment
of older and younger air traffic controllers, instead of comparing the
treatment of air traffic controllers with that of other servants. He points
out
that
air
traffic
controllers
recruited
after
the
entry
into
force
of
Eurocontrol's
administrative
reform
in
July
2016
benefited
from
an
amendment of the provisions of Article 53 of the GCE and were able to
continue working until the age of 57.
5.
In Judgment 4016, the Tribunal observed that the amendment
of
paragraph 2
of
Article 53
did
not
affect
the
conclusion
that
this
provision was not unlawfully discriminatory. The Tribunal considered
Judgment No. 4122
3 ...
- ...
provision was not unlawfully discriminatory. The Tribunal considered
Judgment No. 4122
3
that
the complainant's
contention
that
the
amendment
in
question
created unlawful discrimination based on age was unfounded. Air traffic
controllers recruited prior to the entry into force of the administrative
reform are, by definition, not in the same situation in fact or in law as
their younger counterparts who joined Eurocontrol after Article 53 had
been
amended.
Accordingly
the
difference
in
treatment
as
between
these two different categories of servants was not, in itself, considered
unlawful. Moreover, in consideration 7 of Judgment 4016 the Tribunal
stated that "[the] work situation [of the air traffic controllers] is also
different from that of pilots". It may be inferred from this statement that
the reference made by the complainant to the judgment of the European ...
- ... in the case of Reinhard Prigge and others v. Deutsche
Lufthansa AG (13 September 2011, C-447/09) was considered by the
Tribunal to be irrelevant to its decision.
6.
The complainant also contends that the Tribunal did not take
into account several material facts, namely: the fact that the age limit
of 55 was not based on "generally accepted socio-physiological and
psychological criteria" but rather on the age limitation applied in certain
Member States of Eurocontrol; developments in international legislation;
changes in the technological environment; and the existence of mandatory
competence and medical checks within Eurocontrol. He argues that the
omission to take into account these facts meant that the Tribunal could
not
properly
evaluate
whether
the
contested
provision
violated the
principle of non-discrimination.
7.
By this plea, the complainant simply expresses his disagreement
with the Tribunal's ...
- ...
6.
The complainant also contends that the Tribunal did not take
into account several material facts, namely: the fact that the age limit
of 55 was not based on "generally accepted socio-physiological and
psychological criteria" but rather on the age limitation applied in certain
Member States of Eurocontrol; developments in international legislation;
changes in the technological environment; and the existence of mandatory
competence and medical checks within Eurocontrol. He argues that the
omission to take into account these facts meant that the Tribunal could
not
properly
evaluate
whether
the
contested
provision
violated the
principle of non-discrimination.
7.
By this plea, the complainant simply expresses his disagreement
with the Tribunal's appraisal of the evidence and its interpretation of
the law. His application for review does not raise any of the admissible
grounds for review recalled in consideration ...
- Judgment 4082
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the salary he receives at his new grade.
- ... Eurocontrol
127th Session Judgment No. 4082
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. M. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 26 June
2015, Eurocontrol's reply of 8 October 2015, the complainant's rejoinder
of 15 February 2016 and Eurocontrol's surrejoinder of 20 May 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
M.
v.
Eurocontrol
127th Session Judgment No. 4082
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. M. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 26 June
2015, Eurocontrol's reply of 8 October 2015, the complainant's rejoinder
of 15 February 2016 and Eurocontrol's surrejoinder of 20 May 2016;
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 salary he receives at ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
M.
v.
Eurocontrol
127th Session Judgment No. 4082
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. M. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 26 June
2015, Eurocontrol's reply of 8 October 2015, the complainant's rejoinder
of 15 February 2016 and Eurocontrol's surrejoinder of 20 May 2016;
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 salary he receives at his new grade.
The complainant, ...
- ... Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
M.
v.
Eurocontrol
127th Session Judgment No. 4082
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr G. M. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 26 June
2015, Eurocontrol's reply of 8 October 2015, the complainant's rejoinder
of 15 February 2016 and Eurocontrol's surrejoinder of 20 May 2016;
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 salary he receives at his new grade.
The complainant, who joined Eurocontrol in 2000, was appointed
to a grade B5 post on 1 August 2004.
On ...
- ... 2015, the complainant's rejoinder
of 15 February 2016 and Eurocontrol's surrejoinder of 20 May 2016;
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 salary he receives at his new grade.
The complainant, who joined Eurocontrol in 2000, was appointed
to a grade B5 post on 1 August 2004.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, the details of which are explained in Judgment 3189.
At
that
juncture,
the non-operational staff
categories B and
C were
replaced for a two-year transitional period by the categories B* and C*
respectively. The complainant was then placed in grade B*5. On 1 July
2010, at the end of the transitional period, ...
- ... 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 salary he receives at his new grade.
The complainant, who joined Eurocontrol in 2000, was appointed
to a grade B5 post on 1 August 2004.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, the details of which are explained in Judgment 3189.
At
that
juncture,
the non-operational staff
categories B and
C were
replaced for a two-year transitional period by the categories B* and C*
respectively. The complainant was then placed in grade B*5. On 1 July
2010, at the end of the transitional period, categories B*and C* were
merged and placed in the Assistant group (AST). From that date, the
complainant
held
grade AST5,
step 3.
He ...
- ... - who then held grade AST5,
step 6 - was informed that he had been promoted to grade AST6, step 1,
with retroactive effect as of 1 July 2014. On 28 January 2015 he filed an
internal complaint challenging his payslip for the month of November
2014.
He
complained
that
the
salary
at
his
new
grade
had
not been
calculated in accordance with Article 7(4) of Part 2 of Annex XIII to
the Staff Regulations governing officials of the Eurocontrol Agency.
He requested, amongst other relief, the cancellation of his payslip for
November 2014 and all subsequent payslips.
On
26 June
2015
the
complainant
filed
his
complaint
with
the
Tribunal. He
indicates that
he is impugning the
implied
decision to
dismiss his internal complaint, and he asks the Tribunal to quash that
decision and to cancel his payslip for November 2014, as well as all his
subsequent payslips. He ...
- ... of his payslip for
November 2014 and all subsequent payslips.
On
26 June
2015
the
complainant
filed
his
complaint
with
the
Tribunal. He
indicates that
he is impugning the
implied
decision to
dismiss his internal complaint, and he asks the Tribunal to quash that
decision and to cancel his payslip for November 2014, as well as all his
subsequent payslips. He also claims 5,000 euros in costs.
In
its
reply,
Eurocontrol
submits
that
the
complaint
should
be
dismissed as groundless.
In his rejoinder, the complainant maintains his claims.
In its surrejoinder, Eurocontrol informs the Tribunal that, on 21 March
2016, the Joint Committee for Disputes, to which the complainant's
internal
complaint
was
referred,
issued its
opinion,
in
which
it
held
unanimously that the complaint was unfounded and should be dismissed
on the grounds that ...
- ... that
he is impugning the
implied
decision to
dismiss his internal complaint, and he asks the Tribunal to quash that
decision and to cancel his payslip for November 2014, as well as all his
subsequent payslips. He also claims 5,000 euros in costs.
In
its
reply,
Eurocontrol
submits
that
the
complaint
should
be
dismissed as groundless.
In his rejoinder, the complainant maintains his claims.
In its surrejoinder, Eurocontrol informs the Tribunal that, on 21 March
2016, the Joint Committee for Disputes, to which the complainant's
internal
complaint
was
referred,
issued its
opinion,
in
which
it
held
unanimously that the complaint was unfounded and should be dismissed
on the grounds that the complainant's salary at his new grade had been
calculated in
accordance with
the
applicable provisions
of
the
Staff
Regulations. Eurocontrol adds that, ...
- ... Eurocontrol informs the Tribunal that, on 21 March
2016, the Joint Committee for Disputes, to which the complainant's
internal
complaint
was
referred,
issued its
opinion,
in
which
it
held
unanimously that the complaint was unfounded and should be dismissed
on the grounds that the complainant's salary at his new grade had been
calculated in
accordance with
the
applicable provisions
of
the
Staff
Regulations. Eurocontrol adds that, by a memorandum dated 27 April
2016, the complainant was informed that the Director General shared the
Committee's view and that his internal complaint was therefore dismissed.
CONSIDERATIONS
1.
The complainant asks the Tribunal to cancel his payslip for
November 2014, as well as all his subsequent payslips. He also asks the
Tribunal to quash the implied decision dismissing his internal complaint
lodged on 28 January 2015 and to order the defendant Organisation ...
- ... increment for that grade throughout the
span of the actual steps."
5.
It is clear from the provisions of Article 7(4), contained, as
mentioned above, in Annex XIII, on transitional measures applicable to
officials, that
the "last
step
of
[the]
grade"
referred
to
in
the
third
subparagraph of Article 7(4) must be understood as being the last step
of the grade held by the official concerned before the implementation
of Eurocontrol's administrative reform in 2008.
6.
In the present case, prior to the entry into force of the reform,
the complainant held a post at grade B5, step 4, and there were only
four steps in that grade. Since the complainant was therefore at the last
step of his grade, he is not entitled to benefit from the provisions of the
third subparagraph of Article 7(4), which are not applicable to him.
7.
It
follows
from
the
foregoing
that
the
complaint ...
- Judgment 4081
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Director General not to allow him to carry out an assignment outside the Organisation.
- ... Eurocontrol
127th Session Judgment No. 4081
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 13 May
2015, Eurocontrol's reply of 4 September, the complainant's rejoinder
of 19 November 2015, Eurocontrol's surrejoinder of 26 February 2016, the
complainant's further submissions of 23 March and Eurocontrol's final
comments thereon of 4 May 2016;
Considering ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
127th Session Judgment No. 4081
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 13 May
2015, Eurocontrol's reply of 4 September, the complainant's rejoinder
of 19 November 2015, Eurocontrol's surrejoinder of 26 February 2016, the
complainant's further submissions of 23 March and Eurocontrol's final
comments thereon of 4 May 2016;
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.
D.
v.
Eurocontrol
127th Session Judgment No. 4081
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 13 May
2015, Eurocontrol's reply of 4 September, the complainant's rejoinder
of 19 November 2015, Eurocontrol's surrejoinder of 26 February 2016, the
complainant's further submissions of 23 March and Eurocontrol's final
comments thereon of 4 May 2016;
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 ...
- ... Administrative Tribunal
Registry
'
s translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
127th Session Judgment No. 4081
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 13 May
2015, Eurocontrol's reply of 4 September, the complainant's rejoinder
of 19 November 2015, Eurocontrol's surrejoinder of 26 February 2016, the
complainant's further submissions of 23 March and Eurocontrol's final
comments thereon of 4 May 2016;
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 of the Director General ...
- ... authoritative.
D.
v.
Eurocontrol
127th Session Judgment No. 4081
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr P. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 13 May
2015, Eurocontrol's reply of 4 September, the complainant's rejoinder
of 19 November 2015, Eurocontrol's surrejoinder of 26 February 2016, the
complainant's further submissions of 23 March and Eurocontrol's final
comments thereon of 4 May 2016;
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 of the Director General
not to allow him to carry out an assignment outside the Organisation.
At the material time, the ...
- ... 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 of the Director General
not to allow him to carry out an assignment outside the Organisation.
At the material time, the complainant was Head of the Collection,
Accounting and Treasury Unit. Until 31 December 2012, he had been
Executive Officer of the Eurocontrol Pension Fund. By a letter of 1 July
2014 he was informed of his nomination, with immediate effect, for a
three-year assignment as a professional member and expert in pension
funds of the Governing Board of the Pension Fund of the European
Organization for Nuclear Research (CERN). On 14 July he requested
the
Director
General's
permission
to
carry
out
this assignment.
Judgment No. 4081
2
He explained that the Governing Board ...
- ...
letter
dated
1 August
2014,
the
Director
General
told
the
Chairman of the Governing Board of the CERN Pension Fund that he
would greatly appreciate another person being nominated instead of the
complainant, since he would rather have the complainant concentrate
on his duties as Head of the Collection, Accounting and Treasury Unit.
He also explained why he considered that participation in the Governing
Board might not be beneficial for Eurocontrol. On 4 August the Director
General informed the complainant's supervisor
that,
owing
to
the
Organisation's shortage of resources, he did not consider it appropriate
for the complainant to carry out the assignment and asked him to inform
the complainant accordingly, which the supervisor did the following day.
On
5 August
the
complainant
asked
the
Director
General
to
reconsider his decision, pointing out that he planned to use ...
- ... the decision of 4 August 2014 claiming compensation for moral
and material injury.
On
13 May
2015
he
filed
his
complaint
with
the
Tribunal. He
indicates that he is impugning the implied decision to reject his internal
complaint, and he seeks the quashing of that decision as well as the
decision of 4 August 2014. He also claims compensation for moral and
material injury and costs.
Judgment No. 4081
3
Eurocontrol
submits
that
the
complaint
should
be
dismissed
as
unfounded. It informs the Tribunal that, on 30 April 2015, the Joint
Committee for Disputes, to which the dispute had been referred, issued
its opinion. The Joint Committee concluded that the procedure followed
had
been "unfortunate
and
inappropriate",
particularly because the
Director General had contacted the Chairman of the Governing Board
of the CERN Pension Fund directly, ...
- ...
beforehand, and because in the first place he had notified the supervisor
of the complainant that he would not grant the latter permission to carry
out the assignment. In addition, the majority of the Joint Committee
members considered that the Director General's refusal was not properly
substantiated. The Committee unanimously recommended that the Director
General contact the complainant to set the amount of compensation due
for the moral injury suffered. Eurocontrol adds that, on 29 July 2015, the
Director General informed the complainant that his refusal was justified
by
the
fact
that
the
complainant
had
important
responsibilities
that
would not allow him to carry out the assignment, particularly since, in
the Director General's view, the complainant's absences would probably
have been "far more" than six days per year. He added that owing to the
late submission of his request, the complainant had ...
- ... the
Director General informed the complainant that his refusal was justified
by
the
fact
that
the
complainant
had
important
responsibilities
that
would not allow him to carry out the assignment, particularly since, in
the Director General's view, the complainant's absences would probably
have been "far more" than six days per year. He added that owing to the
late submission of his request, the complainant had "deliberately placed
[Eurocontrol] in a situation where it had to take a decision" and, in so
doing, he had not observed Eurocontrol's "codes of ethical conduct".
Lastly, he informed him that the experience he might have gained with
the
Governing
Board
would
be
neither
beneficial
nor
necessary
for
Eurocontrol, since his term of office with the CERN Pension Fund had
ended.
Accordingly,
the
Director
General
informed
the
complainant
that his internal ...
- ...
that
the
complainant
had
important
responsibilities
that
would not allow him to carry out the assignment, particularly since, in
the Director General's view, the complainant's absences would probably
have been "far more" than six days per year. He added that owing to the
late submission of his request, the complainant had "deliberately placed
[Eurocontrol] in a situation where it had to take a decision" and, in so
doing, he had not observed Eurocontrol's "codes of ethical conduct".
Lastly, he informed him that the experience he might have gained with
the
Governing
Board
would
be
neither
beneficial
nor
necessary
for
Eurocontrol, since his term of office with the CERN Pension Fund had
ended.
Accordingly,
the
Director
General
informed
the
complainant
that his internal complaint was dismissed as unfounded.
CONSIDERATIONS
1.
The complainant asks the Tribunal ...
- ... probably
have been "far more" than six days per year. He added that owing to the
late submission of his request, the complainant had "deliberately placed
[Eurocontrol] in a situation where it had to take a decision" and, in so
doing, he had not observed Eurocontrol's "codes of ethical conduct".
Lastly, he informed him that the experience he might have gained with
the
Governing
Board
would
be
neither
beneficial
nor
necessary
for
Eurocontrol, since his term of office with the CERN Pension Fund had
ended.
Accordingly,
the
Director
General
informed
the
complainant
that his internal complaint was dismissed as unfounded.
CONSIDERATIONS
1.
The complainant asks the Tribunal to set aside, firstly, the
implied decision rejecting his internal complaint against the decision of
4 August 2014 and, secondly, the latter decision itself, by which the
Director General rejected the complainant's ...
- ... the decision of
4 August 2014 and, secondly, the latter decision itself, by which the
Director General rejected the complainant's request for permission to
carry out an external assignment, namely a three-year mandate with
Judgment No. 4081
4
the Governing
Board
of
the
CERN
Pension
Fund.
He
also
claims
50,000 euros in moral damages, 100,000 euros in material damages and
4,000 euros in costs.
2.
Eurocontrol requests that the Tribunal dismiss the complaint
as unfounded.
3.
This
complaint,
which
was
originally
directed
against an
implied decision to dismiss the complainant's internal complaint, must
now be regarded as impugning the express decision of 29 July 2015,
taken in the course of the proceedings, by which the Director General
informed the complainant of his decision to reject the internal complaint
against the aforementioned decision ...
- ... must
now be regarded as impugning the express decision of 29 July 2015,
taken in the course of the proceedings, by which the Director General
informed the complainant of his decision to reject the internal complaint
against the aforementioned decision of 4 August 2014 (for a similar
case, see, for example, Judgment 3667, consideration 1).
4.
The complainant submits that the Director General's decision
of 4 August 2014 is insufficiently substantiated. In Eurocontrol's view,
the reasons for this decision, albeit brief, were set forth in the decision
of 29 July 2015.
5.
The
Tribunal
recalls
that, according
to
its
case
law,
the
reasons for a decision must be sufficiently explicit to enable the person
concerned to take an informed decision accordingly; they
must also
enable the competent review bodies to determine whether the decision
is lawful and, in particular, the Tribunal to exercise its ...
- ... by such a decision, this plea will be dismissed.
6.
The complainant submits that the assignment for which he
was nominated was not contrary to the interests of the Organisation and
would
not
interfere
with
the
performance
of
his
duties.
He
should
therefore have been allowed to carry out the assignment in accordance
with
Article 12b
of
the
Staff
Regulations governing
officials
of
the
Eurocontrol Agency. He adds that the argument concerning the shortage
of
resources
is
not
relevant
to
Article 12b,
as
it
would
have been
possible for him to engage in an activity outside the Organisation by
taking annual leave. He points out in this regard that the application
form for engaging in an activity outside the Organisation provides for
the possibility of carrying out such an activity during annual leave.
Eurocontrol considers that the ...
- ...
the
Eurocontrol Agency. He adds that the argument concerning the shortage
of
resources
is
not
relevant
to
Article 12b,
as
it
would
have been
possible for him to engage in an activity outside the Organisation by
taking annual leave. He points out in this regard that the application
form for engaging in an activity outside the Organisation provides for
the possibility of carrying out such an activity during annual leave.
Eurocontrol considers that the Director General's refusal to grant
the
complainant
permission
to
carry
out
an
assignment outside
the
Organisation is justified under Article 12b, given the important position
held by
the complainant
and
the
fact
that
his
absences
would
be
incompatible with the interests of the Organisation.
Judgment No. 4081
6
7.
According to Article 12b of the Staff Regulations, ...
- ... in such an activity. Nonetheless,
the Tribunal recalls that although annual leave is usually granted to
officials upon submission of a request approved by the administration,
such approval is subject to the requirements of the service. Given the
frequency
of
the
meetings
of
the
Governing
Board
of
the
CERN
Pension Fund (six times per year) and, moreover, the fact that the dates
of such meetings would not have been set according to Eurocontrol's
requirements,
the
complainant
could
not say
in
advance that
his
absences would be compatible with the efficient running of the service.
11.
The complainant contends that Eurocontrol has deprived him
of a beneficial experience and acted in contradiction with its staff training
policy. However, the Tribunal considers that, whilst this argument is
not, in itself, completely devoid of merit, in the present case the Director
General
did ...
- ... of the service. Given the
frequency
of
the
meetings
of
the
Governing
Board
of
the
CERN
Pension Fund (six times per year) and, moreover, the fact that the dates
of such meetings would not have been set according to Eurocontrol's
requirements,
the
complainant
could
not say
in
advance that
his
absences would be compatible with the efficient running of the service.
11.
The complainant contends that Eurocontrol has deprived him
of a beneficial experience and acted in contradiction with its staff training
policy. However, the Tribunal considers that, whilst this argument is
not, in itself, completely devoid of merit, in the present case the Director
General
did
not
misuse
his
discretionary
power
by
holding
that
the
request to carry out the assignment should be refused, in view of the
Organisation's shortage of resources, as mentioned above. ...
- ... opinion. This plea therefore fails.
Judgment No. 4081
8
13.
The
complainant
then
raises
several
objections concerning
the letter of 1 August 2014, in which the Director General informed the
Chairman of the Governing Board of the CERN Pension Fund that he
would prefer the complainant to concentrate on his duties as head of
unit and that he considered that participation in the Governing Board
would not be beneficial for Eurocontrol.
14.
Firstly,
the
complainant
criticises
the
Director
General
for
having directly informed the Chairman of the Governing Board that he
was not authorised to carry out the assignment in question and of having
thus "closed all possibility of discussion".
Eurocontrol
explains
that
since
the
complainant's
request
was
submitted late, the Director General had been "pressed for time" and,
out of respect, wished to ...
- ...
would prefer the complainant to concentrate on his duties as head of
unit and that he considered that participation in the Governing Board
would not be beneficial for Eurocontrol.
14.
Firstly,
the
complainant
criticises
the
Director
General
for
having directly informed the Chairman of the Governing Board that he
was not authorised to carry out the assignment in question and of having
thus "closed all possibility of discussion".
Eurocontrol
explains
that
since
the
complainant's
request
was
submitted late, the Director General had been "pressed for time" and,
out of respect, wished to notify CERN directly.
The Tribunal notes that by submitting his request on 14 July 2014,
in other words after the date on which his mandate was due to commence
(1 July), the complainant failed to comply with Article 12b of the Staff
Regulations, which required that the request be submitted first to the ...
- ... to
him, the Director General stated that he was willing to offer the services
of another staff member to replace the complainant.
The Tribunal notes that, contrary to the complainant's allegations,
in his letter of 1 August 2014 the Director General merely stated that he
would greatly appreciate another person being nominated in place of
Judgment No. 4081
9
the complainant and that he was not in a position to offer the services
of Eurocontrol's "current
Pension Fund Executive Officer", which, in
any event, could not be construed as a proposal to nominate another
staff member of Eurocontrol. The plea must therefore be dismissed.
17.
The complainant argues that the reasons set forth in the letter
of 1 August 2014 are not consistent with the reason given in the decision
of 4 August 2014. The Tribunal considers that there is no inconsistency
between the Director General's reference in the e-mail of 4 ...
- ... that, contrary to the complainant's allegations,
in his letter of 1 August 2014 the Director General merely stated that he
would greatly appreciate another person being nominated in place of
Judgment No. 4081
9
the complainant and that he was not in a position to offer the services
of Eurocontrol's "current
Pension Fund Executive Officer", which, in
any event, could not be construed as a proposal to nominate another
staff member of Eurocontrol. The plea must therefore be dismissed.
17.
The complainant argues that the reasons set forth in the letter
of 1 August 2014 are not consistent with the reason given in the decision
of 4 August 2014. The Tribunal considers that there is no inconsistency
between the Director General's reference in the e-mail of 4 August 2014
to the Organisation's shortage of resources as grounds for his decision
not to allow the complainant to carry out the assignment and the wish
expressed ...
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