ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

30 September 2014

Case F‑35/12

DM

v

Body of European Regulators for Electronic Communications (BEREC)

(Civil service — Member of the contract staff — Conditions of engagement — Medical examination on engagement — Article 100 of the CEOS — Deferment of medical cover — Contract terminated at the end of the probationary period — Claims for annulment which have become devoid of purpose — Deferment of medical cover on the engagement of the member of staff concerned by another agency of the European Union — No effect — No need to adjudicate)

Application:      under Article 270 TFEU, in which DM seeks annulment of the decision of the Body of European Regulators for Electronic Communications (BEREC) of 2 December 2011 rejecting his complaint against the decision of 6 May 2011 deferring his medical cover as provided for in Article 100 of the version of the Conditions of Employment of Other Servants of the European Union applicable in the dispute (‘the CEOS’) from the date of his entry into service, and, in so far as is necessary, annulment of the decision of 6 May 2011.

Held:      There is no further need to adjudicate on the dispute. The Body of European Regulators for Electronic Communications is to bear its own costs and is ordered to pay the costs incurred by DM.

Summary

1.      Actions brought by officials — Action against a decision rejecting a complaint — Admissibility — Obligation to adjudicate on claims directed against the decision rejecting the complaint — Claims lacking independent content or purely confirmatory decision — None

(Staff Regulations, Arts 90 and 91)

2.      Actions brought by officials — Members of the contract staff — Interest in bringing proceedings — Action by a former staff member against a decision of a Union agency deferring his medical cover — Termination of the staff member’s membership of the Joint Sickness Insurance Scheme during the proceedings — No need to adjudicate — Imposition of a further deferment of medical cover when staff member is engaged by another Union agency — No effect

(Staff Regulations, Arts 72, 90 and 91; Conditions of Employment of Other Servants, Arts 96(5), third subpara., and 100, first para.)

1.      Since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, an action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second.

In that regard, where a decision rejecting a complaint does not contain a reconsideration of the situation of the person concerned by reference to new elements of law or of fact, but confirms the contested decision, it is indeed the legality of the initial act adversely affecting the person concerned that must be examined, taking into account the grounds given for the decision rejecting the complaint, those grounds being supposed to coincide with that act.

(see paras 30, 31)

See:

judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paras 7 and 8

judgments in Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paras 58 and 59 and the case-law cited therein; and Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, para. 33

2.      The purpose of an action must exist at the time at which the action is brought, failing which it will be inadmissible, and must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it.

As regards an action by a former member of the contract staff against a decision of a Union agency to defer his medical cover on his engagement, as provided for in the first paragraph of Article 100 of the Conditions of Employment of Other Servants, the fact that the applicant’s contract was terminated in the course of the proceedings does not mean that that deferment of medical cover automatically ceased to apply. Even though it is true that the applicant’s contractual relationship with the agency was terminated at the end of the period of notice, the fact remains that he was subsequently entitled, for a certain period, to receive unemployment benefits and to membership of the Joint Sickness Insurance Scheme without paying contributions. During that period the deferment of medical cover would have had the effect of denying him the benefit of guarantees in respect of invalidity and death for the effects and consequences of the illness or disability on account of which medical cover was deferred. However, that fact does not mean that the action for annulment retained its purpose beyond the date on which the applicant’s membership of the Joint Sickness Insurance Scheme ended.

Moreover, that finding is not called into question by the fact that the staff member was subsequently recruited by another European agency which also deferred his medical cover. Since a judgment of the Civil Service Tribunal produces effects only in respect of the parties to a case, the annulment of the contested decision could not lead to the annulment of the decision to apply Article 100 of the Conditions of Employment to the staff member concerned following the medical examination preceding his engagement by another Union agency, since the applicant may obtain that annulment only by bringing an action to challenge the latter decision.

(see paras 33, 36-39, 44)

See:

judgment in Mische v Parliament, F‑93/05, EU:F:2011:168, para. 27 and the case-law cited therein