21.2.2009

Official Journal of the European Union

C 44/50

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(Case T-513/08 P)

(2009/C 44/88)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by K. Hermann and D. Martin, Agents)

Other party to the proceedings: Daniele Smadja (New Delhi, India)

Form of order sought by the appellant

—Set aside the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-135/07;

—Dismiss the action brought by Mrs Smadja;

—Order that each of the parties bear their own costs before the Court of First Instance and the Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, the Commission seeks the setting aside of the judgment of the Civil Service Tribunal (CST) of 11 September 2000 in Case F-135/07, by which the CST annulled the Commission decision of 21 December 2006 grading the applicant at first instance in Grade A*15, step 1, in consequence of the judgment of the Court of First Instance of 29 September 2005 in Case T-218/02 Napoli Buzzanca v Commission.

In support of its appeal, the Commission relies one one ground of appeal, alleging error of law in the interpretation of the principle of proportionality.

In three parts, the Commission claims that:

—the principle of proportionality cannot be invoked when statutory provisions, such as Articles 3 and 4 of the Staff Regulations of Officials of the European Communities, prohibit the Commission from making appointments with retrospective effect;

—the principle of proportionality cannot lead to the denial of the authority of a judgment delivered but still possibly subject to appeal enjoyed by a judgment of the Court of First Instance;

—the principle of proportionality cannot be invoked when statutory provisions, such as Article 5(5) of Annex XIII, read with Article 46(1)(a) of the Staff Regulations of Officials of the European Communities, exclude in this instance grading in a step higher than step 1.

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