Action brought on 13 February 2006 - Duyster v Commission

(Case F-18/06)

Language of the case: Dutch

Parties

Applicant: Tinike Duyster (Oetrange, Luxembourg) (represented by: W.H.A.M. van den Muijsenbergh, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

Annul the Appointing Authority's decision of 17 November 2005 to send the applicant on parental leave from 8 November 2004 until an unspecified date;

Annul the Appointing Authority's decision of 6 April 2005;

Annul the decision to grant parental leave from 1 November 2004 to 30 April 2005 inclusive, and/or the salary slip for November 2004, and/or the Commission's decision of 30 November 2004 not to take account of the request for deferment or cancellation of the parental leave;

Find that from 1 November 2004 (or 8 November 2004) until 30 April 2005 inclusive the applicant had all the substantive rights connected with the active service of an official and that therefore payment according to her grade and step must be made to her with retroactive effect;

Find that this payment must be made with interest for late payment;

Find that the applicant may still request parental leave (even if, after the date when judgment is delivered, her son is more than or nearly 12 years old) since the failure to approve the request submitted is the Commission's fault; alternatively, that, since the Commission is responsible for the applicant's inability to take parental leave, she must be paid compensation corresponding to the loss of the benefits for parental leave, insurance, seniority, pension rights, appraisal reports and promotion opportunities; or, in the further alternative, that she must be paid damages for the period of parental leave not taken for loss of the benefits for parental leave, insurance and pension rights;

Order the defendant to pay compensation for the material and non-material damage caused by the decision of 17 November 2005, assessed at EUR 4 000 and EUR 5 000 respectively;

Order the defendant to pay EUR 2 500 as compensation for the uncertainty caused to the applicant regarding her status as an official and the non-material damage resulting from that uncertainty;

Compensate the applicant for the value of seven days of parental leave;

Order the defendant to pay the costs.

Pleas in law and main arguments

In Case F-51/05, ¹ the applicant already challenged the fact that the Commission granted her parental leave for the period from 1 November 2004 to 30 April 2005. In this case, she challenges the Appointing Authority's decision, taken in the meantime, of 17 November 2005, which set the date of the start of the parental leave as 8 November 2004.

In support of her action, the applicant submits that the decision of 17 November 2005 infringed the Treaty, the Staff Regulations and a number of legal principles. In particular, according to the applicant, that decision: (i) contains errors including, for example, an incorrect statement about a Court of First Instance case; (ii) is inaccurate for a number of reasons including, among others, a failure to specify on which of the applicant's complaints the decision is based, a failure to include the date of the end of the parental leave and a failure to include a description of the decision's effects; (iii) is drafted in a language other than that used by the applicant, in breach of Article 21 EC; (iv) does not cite any legal basis; (v) contains contradictions; (vi) states insufficient reasons; (vii) has retroactive effect although there was no longer any application for parental leave pending; (viii) fails to take account of the fact that the Appointing Authority's original decisions over the whole period were unlawful; (ix) takes no account of the application to defer the parental leave.

Furthermore, the wording of the contested decision creates the impression that the applicant is at least in part responsible for the muddle, whereas she has acted very carefully and produced a large number of documents.

____________

¹ - OJ C 217, 3.9.2005 (case initially registered before the Court of First Instance of the European Communities under number T-249/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).