JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

13 December 2007

Joined Cases F-51/05 and F-18/06

Tineke Duyster

v

Commission of the European Communities

(Civil service – Officials – Languages – Admissibility – Decision adversely affecting an official – None – Parental leave – Application to defer the date when parental leave begins – Effect of sick leave)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Duyster seeks in particular: in Case F‑51/05, first, annulment of three decisions of the Commission, namely, the decision of 22 October 2004 awarding her parental leave from 1 November 2004 to 30 April 2005 inclusive, the decision of 30 November 2004 refusing her request for deferment or cancellation of the parental leave, and her salary slip for November 2004; second, a finding that parental leave with regard to her son may still be requested; third, payment of various amounts in damages, in particular to compensate for the uncertainty caused to her as to her status as an official and the non-material detriment resulting from that uncertainty; in Case F‑18/06, first, annulment of the Commission’s decision of 17 November 2005 fixing the date for the start of her parental leave on 8 November 2004, and second, damages in compensation for the material and non-material damage caused by that decision.

Held: The actions are dismissed. The Commission is ordered, in addition to its own costs, to bear one third of the applicant’s costs. The applicant is to bear two thirds of her own costs.

Summary

1.      Officials – Administration’s duty to have regard for the interests of officials

(Art. 21, third para., EC)

2.      Officials – Actions – Act adversely affecting an official – Definition

(Staff Regulations, Art. 91)

3.      Actions for annulment – Actionable measures – Reasons for a decision – Exclusion

(Art. 230 EC)

4.      Procedure – Objection of lis pendens

5.      Officials – Leave – Parental leave – Withdrawal of application – Conditions

(Staff Regulations, Art. 42a)

6.      Officials – Leave – Parental leave – Interruption – Conditions

(Staff Regulations, Art. 42a)

1.      The institutions are under a duty to have regard for the welfare of their officials and therefore to address to an official an individual decision worded in a language of which he has a thorough knowledge, given that the administration has an obligation to ensure that officials are effectively and easily able to acquaint themselves with administrative acts which are of individual concern to them.

It is not, however, possible to infer from the third paragraph of Article 21 EC that any decision addressed by a Community institution to one of its officials should be drawn up in that official’s mother tongue. The references to the use of languages in the European Union contained in the Treaty cannot be regarded as evidencing a general principle of Community law that confers a right on every citizen to have a version of anything that might affect his interests drawn up in his language in all circumstances.

(see paras 56-58)

See:

C-361/01 P Kik v OHIM [2003] ECR I‑8283, para. 82

T-197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, para. 46

2.      Only acts producing binding legal effects capable of affecting, directly and individually, the interests of the parties concerned by bringing about a distinct change in their legal situation can be considered to affect them adversely.

However, certain decisions, even though they do not affect the pecuniary interests or rank of the official, may be regarded, in the light of the nature of the functions concerned and the circumstances, as acts adversely affecting that official if they adversely affect his non-pecuniary interests or future prospects. The essential aspect of an act adversely affecting an official is that the act affects that person’s interests, in other words that it is capable of harming his interests, particularly in relation to an application that he has submitted. An action must be capable, if successful, of procuring an advantage to the party bringing it.

(see paras 78-80)

See:

35/72 Kley v Commission [1973] ECR 679, paras 4 and 5; 125/80 Arning v Commission [1981] ECR 2539, para. 17; C-32/92 P Moat v Commission [1992] ECR I‑6379, para. 9; C-373/04 P Commission v Alvarez Moreno [2006] ECR I‑1, para. 42

3.      The assessments made in the recitals in the preamble to a decision are not in themselves capable of forming the subject of an application for annulment and can be subject to review by the Community judicature only to the extent that, as grounds for an act adversely affecting a person’s interests, they constitute the essential basis for the enacting terms of that act, or if, at very least, those recitals could change the substance of what was provided for in the enacting terms of the act in question.

(see para. 84)

See:

T-387/04 EnBW Energie Baden-Württemberg v Commission [2007] ECR II‑1195, para. 127 and the case-law cited therein

4.      An action which is between the same parties, has the same purpose and is brought on the basis of the same submissions as an action brought previously must be dismissed as inadmissible.

(see paras 94, 102)

See:

172/83 and 226/83 Hoogovens Groep v Commission [1985] ECR 2831, para. 9; 358/85 and 51/86 France v Parliament [1988] ECR 4821, para. 12

Judgment of 14 June 2007 in T-68/07 Landtag Schleswig-Holstein v Commission not published in the ECR, para. 16

5.      A request for parental leave may be unilaterally withdrawn by the official, but only within a reasonable period, and in any event not after the date on which the decision on that request has been notified or, at the latest, by the date on which the official in question has acquainted himself with that decision.

(see para. 139)

6.      Article 2(4) of the General Provisions for Implementing Article 42a of the Staff Regulations, adopted by the Commission, which states that the appointing authority may, at the request of the official concerned, cancel a decision awarding parental leave, must be interpreted as meaning that it also allows parental leave to be interrupted temporarily.

The fact that that article specifies that the appointing authority ‘may’ cancel the leave, and is therefore not obliged to agree to all requests for cancellation or interruption, shows that any decision taken to that effect by the appointing authority must be based on legitimate grounds put forward by the official, taking account of the purpose of parental leave, and must balance the interests of the official against those of the institution.

However, the discretion which the administration enjoys is limited where the official who is on parental leave establishes, in his request to interrupt that leave, that events occurring after the grant of leave incontestably make it impossible for him to look after the child under the conditions originally foreseen. That may particularly be the case where the official is affected by an illness the seriousness or nature of which place him in that impossible situation.

(see paras 163, 167, 169-170)

See:

C-116/06 Kiiski [2007] ECR I-7643, para. 38