Judgment — ECLI:EU:F:2011:12
Date: 2011-02-15
Language of the case: English
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible

summary form. Such flexibility would have the practical effect of rendering largely ineffective the special, and later, rule set out in Annex I to the Statute of the Court of Justice (judgment of 26 June 2008 in Case F‑1/08 Nijs v Court of Auditors, paragraph 25). 31 In addition, the third indent of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the Tribunal by virtue of Article 7(1) of Annex I to the Statute, provides that the parties, other than the Member States, the institutions of the European Union, the States which are parties to the Agreement on the European Economic Area and the EFTA Surveillance Authority, which is covered by that Agreement, must be represented by a lawyer. The main role of that lawyer, as a legal representative, is to ensure that the heads of claim of the application are based on sufficiently intelligible and coherent arguments, specifically in view of the fact that the written procedure before the Tribunal comprises, in principle, only one exchange of written pleadings (Nijs v Court of Auditors, paragraph 26). 32 In the present case, as the Commission correctly stated in its response to the measures of organisation of procedure ordered by the Tribunal and at the hearing, not only does the application not adduce any plea in law or argument in support of the annulment of the decision of 11 December 2008 refusing the applicant’s request of 16 August 2008 relating to the payment of aid under Article 76a of the Staff Regulations, but it does not even mention that provision of the Staff Regulations. 33 Therefore, the application manifestly fails to meet the minimum conditions of clarity and precision that would enable the defendant to prepare its defence and the Tribunal to rule on that alternative head of claim. The second head of claim, seeking annulment of the decision applying the reimbursement ceiling established in paragraph 2 of Chapter 3 of Title II of the GIP to the costs of incurred for a carer 34 The Commission submits that that head of claim is inadmissible because it was out of time. Since the letter of 16 August 2008 contains both a complaint within the meaning of Article 90(2) of the Staff Regulations concerning the reimbursement ceiling and a request within the meaning of Article 90(1) of the Staff Regulations relating to the application of Article 76a of the Staff Regulations, the application, lodged on 14 September 2009, was out of time as regards the claim relating to the reimbursement ceiling. 35 According to settled case‑law, the time-limit of three months for lodging a complaint against an act adversely affecting an official and that of three months for bringing an action against an express or implied decision rejecting the complaint, prescribed by Articles 90 and 91 of the Staff Regulations, are a matter of public policy and are not subject to the discretion of the parties or the court, since they were established in order to ensure that legal positions are clear and certain. Those time-limits must be regarded as applying to any challenge to an act subject to the review of the European Union courts, regardless of its nature (see, to that effect, judgment of 4 February 1987 in Case 276/85 Cladakis v Commission, paragraph 11; judgments of 17 October 1991 in Case T‑129/89 Offermann v Parliament, paragraphs 31 and 34, and of 8 March 2006 in Case T‑289/04 Lantzoni v Court of Justice, paragraphs 40 and 41). 36 In the present case, it appears from the documents before the Tribunal that the decision allowing the applicant to benefit from the services of a carer for the period from 1 April 2008 to 31 March 2009 is dated 31 March 2008. It also follows from the Commission’s letter of 15 July 2008, which was placed on the case-file that, following a conversation with a Commission social assistant, the applicant was aware that the maximum amount which could be paid to her for her treatment under the GIP, was in the region of EUR 2 200 per month. It also appears from the payment declaration of July 2008, annexed by the Commission to its defence, that that amount is indeed the amount which the applicant, in her letter of 16 August 2008, complains is insufficient in the light of her situation. 37 It follows that, in so far as, in the letter of 16 August 2008, the applicant contests the application of the ceiling provided for in Chapter 3 of Title II of the GIP to the costs of a carer, that letter must be regarded as a complaint within the meaning of Article 90(2) of the Staff Regulations, by which the Commission is requested to reconsider its decision to apply such a ceiling. 38 According to settled case‑law, a letter from an official, which does not expressly request the withdrawal of the decision in question but is clearly intended to achieve an amicable settlement of his complaints, or a letter which clearly manifests the applicant’s intention to challenge the decision which adversely affects him, is a complaint (see, the orders of 7 June 1991 in Case T-14/91 Weyrich v Commission, paragraphs 39 and 40, and the case‑law cited, and of 7 December 1999 in Case T‑108/99 Reggimenti v Parliament, paragraph 27). 39 It must be observed that under Article 90(2) of the Staff Regulations, the appointing authority is to notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this is to be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91 of the Staff Regulations. 40 In fact, the date on which the applicant’s letter of 16 August 2008 was received by the Commission is not clear from the file. However, the applicant confirms in her letter of 12 October 2008, annexed to the defence that the Commission, by letter of 29 September 2008, had replied to her letter of 16 August 2008. 41 It must therefore be held that, at the latest on 29 September 2008, the complaint in the letter of 16 August 2008 had been known to the Commission and that in the event of a decision not being taken in the following four months, the applicant should have brought her action within the three‑month period, prescribed in Article 91(3) of the Staff Regulations, from the date on which the implied decision of rejection was taken, namely 29 January 2009. 42 The Tribunal accordingly finds that the three month period began on 30 January 2009 and that it expired on 29 April 2009. Thus, taking into account the extension of 10 days on account of distance provided for in Article 100(3) of the Rules of Procedure, the period for bringing an action should, in the present case, have expired at midnight on 9 May 2009. 43 However, the first subparagraph of Article 100(2) of those Rules of Procedure lays down that ‘[i]f the period would otherwise end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day’. Since 9 May 2009 was a Saturday, the time for instituting an action was extended, in the present case, until Monday, 11 May 2009 inclusive. 44 In the present case, the application was lodged at the Tribunal Registry on 14 September 2009. In those circumstances, the Tribunal finds that the statutory time limits were not respected and, therefore, the application must be dismissed as inadmissible as regards the challenge to the application of the ceiling provided for in Chapter 3 of Title II of the GIP to the reimbursement of the expenses for care incurred by the applicant. 45 It follows that the action must be dismissed in its entirety as inadmissible. Costs 46 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any. 47 It is apparent from the reasons set out above that the applicant has been unsuccessful. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, the applicant must therefore be ordered to pay all the costs. On those grounds, THE CIVIL SERVICE TRIBUNAL (First Chamber) hereby: 1. Dismisses the action as inadmissible. 2. Orders AH to bear all the costs. Gervasoni Kreppel Rofes i Pujol Delivered in open court in Luxembourg on 15 February 2011. W. Hakenberg S. Gervasoni Registrar President * Language of the case: English.