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

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Last updated: 07.03.2024 ^ top