JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

6 May 2009

Case T-12/08 P

M

v

European Medicines Agency (EMEA)

(Appeal – Civil service – Temporary staff – Invalidity – Application for reconsideration of the decision rejecting a first request that the Invalidity Committee be convened – Action for annulment – Non-actionable measure – Confirmatory act – New and substantial facts – Admissibility – Non-contractual liability – Non-material harm)

Appeal: brought against the order of the Civil Service Tribunal of the European Union (First Chamber) in Case F-23/07 M v EMEA [2007] ECR-SC I-A-0000 and II-0000 seeking that that order be set aside.

Held: The order of the Civil Service Tribunal of the European Union (First Chamber) of 19 October 2007 in Case F-23/07 M v EMEA [2007] ECR-SC I-A-0000 and II-0000 is set aside. The decision of the European Medicines Agency (EMEA) of 25 October 2006 is annulled in so far as it rejected M’s request of 8 August 2006 for his case to be referred to the Invalidity Committee. EMEA is ordered to pay the appellant compensation of EUR 3 000. The remainder of the appeal is dismissed. EMEA is ordered to pay the costs of the procedure before the Civil Service Tribunal and those of this case.

Summary

Officials – Invalidity – Temporary staff – Application for reconsideration of a decision refusing to initiate the invalidity procedure – Significant extension of the staff member’s sick leave following rejection of his first request – New fact justifying reconsideration and initiation of the procedure

(Conditions of Employment of Other Servants, Art. 33)

Where a member of the temporary staff submits an application for reconsideration of a decision of the authority authorised to conclude contracts of engagement which rejected a first request by that staff member for his case to be referred to the Invalidity Committee, the authority must reconsider that decision if the new application is based on new and substantial facts, and must agree to that request if, in the light of those facts, it is now conceivable that, on the basis of objective and undisputed information in the authority’s possession, the basic conditions set out in Article 33 of the Conditions of Employment of Other Servants are satisfied.

The authority authorised to conclude contracts of engagement is obliged to undertake such a reconsideration not just where the state of health of the temporary staff member concerned is different from the state of health known to the authority when it adopted the decision whose reconsideration is sought, or where the staff member’s work incapacity results from a different disorder from that identified and taken into account in that decision. It is possible that certain new circumstances may be capable, even if they do not demonstrate that the state of health of the temporary staff member concerned is different, of substantially modifying the conditions which governed the earlier decision refusing to refer the case to the Invalidity Committee and, therefore, of being treated as new and substantial facts requiring reconsideration of that decision.

The extension of the staff member’s sick leave for a significant period following the rejection of his first request to refer his case to the Invalidity Committee constitutes such a fact, even if that new leave is justified by the same disorder as that taken into consideration when the first request was rejected. While it is, admittedly, possible that the institution concerned may conclude that the absence of a member of the temporary staff from his workplace on account of illness does not justify the referral of his case to the Invalidity Committee where that institution possesses objective and undisputed evidence that the staff member in question will very shortly be able to resume his duties, the fact nevertheless remains that the extension of that person’s sick leave for a significant period undeniably constitutes sound evidence capable of creating doubt about his prospects of resuming his duties, and thus calling into question the validity of the initial refusal to refer his case to the Invalidity Committee.

(see paras 59, 63-66)