JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

19 June 2013

Case F‑81/11

BY

v

European Aviation Safety Agency (EASA)

(EASA staff — Temporary staff — Admissibility — Time-limit for instituting proceedings — Unfavourable assessment report — Reassignment — Psychological harassment — Misuse of powers)

Application:      by BY pursuant to Article 270 TFEU, seeking annulment of the decision of the Executive Director of the European Aviation Safety Agency (‘EASA’ or the ‘Agency’), of 17 December 2010, reassigning the applicant to a non-managerial post in the interests of the service.

Held:      The application is dismissed. BY is to bear his own costs and is ordered to pay those incurred by EASA.

Summary

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Applicant’s lawyer stamping the original request as received by post ‘true copy’ but no such stamp appearing on the version sent by fax — Irregularity not giving rise to inadmissibility

(Rules of Procedure of the Civil Service Tribunal, Art. 34(1) and (6))

2.      Judicial proceedings — Application initiating proceedings — Formal requirements — Failure to lodge a sufficient number of true copies of the original application — Irregularity not giving rise to inadmissibility

(Rules of Procedure of the Civil Service Tribunal, Arts 34(1) and 94(a))

3.      Actions brought by officials — Pleas in law — Misuse of powers –Meaning — Decision conforming to the interests of the service — No misuse of powers

1.      Where the applicant’s lawyer has stamped the cover sheet of the original application ‘true copy’, and has applied the firm’s stamp next to his handwritten signature on the last page, the document does not, by virtue of those circumstances, lose its character as the original of the application sent by fax, just as an original document which is stamped ‘original’ does not lose its character as such, even though it is changed by virtue of being stamped. The fact that the lawyer stamped the original ‘true copy’ was a mere material error, which does not make the application inadmissible.

(see para. 37)

2.      The fact that the number of copies of an application, not counting the original, is less than the number of certified copies which should be lodged with the original, in accordance with the second paragraph of Article 34(1) of the Rules of Procedure of the Civil Service Tribunal, does not make the application inadmissible. The contrary view would be excessively severe, having regard to the proportionality principle and the applicant’s right to an effective remedy, and in the absence of any threat to legal certainty. In this regard, non-compliance with the second paragraph of Article 34(1) may be met with a sanction under Article 94(a) of the Rules of Procedure.

(see para. 38)

3.      The concept of misuse of powers, of which misuse of procedures is a manifestation, has a very precise meaning and relates to the use by an administrative authority of its powers for a purpose other than that for which they were conferred. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated.

In the case of a reassignment, where this has not been held to be contrary to the interests of the service, there can be no question of misuse of powers. More particularly, the fact that an official’s hierarchical superior drew up the official’s assessment report, when the superior had been expressly accused in a complaint of harassment made by the official, cannot of itself, without more, call the superior’s impartiality into question.

(see paras 69, 70 and 72)

See:

14 July 1983, 176/82 Nebe v Commission, para. 25; 5 June 2003, C‑121/01 P O’Hannrachain v Parliament, para. 46

10 July 1992, T‑59/91 and T‑79/91 Eppe v Commission, para. 57; 11 June 1996, T‑118/95 Anacoreta Correia v Commission, para. 25; 17 November 1998, T‑131/97 Gómez de Enterría y Sanchez v Parliament, para. 62; 6 July 1999, T‑112/96 and T‑115/96 Séché v Commission, para. 139; 14 October 2004, T‑389/02 Sandini v Court of Justice, para. 123