Order — ECLI:EU:F:2015:126
Date: 2015-10-27
Language of the case: French
Court formation: Single Judge
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - inadmissible;Action for damages - unfounded

Summary 1. Actions brought by officials — Action alleging that the failure to adopt a decision reclassifying a member of the contract staff was unlawful — Objection by the defendant institution that the action is inadmissible on the basis that the person concerned has not been successful in a selection test — Lack of any requirement for that person to be successful given that the institution had not been practically able to hold that test — Rejection (Staff Regulations, Art. 90) 2. Actions brought by officials — Act having an adverse effect — Meaning — Memo from the ‘Office for the Administration and Payment of Individual Entitlements’ inviting the administration to reclassify members of the contract staff in a different function group — Not included (Staff Regulations, Arts 90(2) and 91(1)) 3. Actions brought by officials — Time-limits — Point from which time starts to run — Notification — Meaning — Decision brought to the attention of staff by means of publication on the institution’s intranet site — Included (Staff Regulations, Arts 90(2) and 110(4)) 4. Actions brought by officials — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Reopening — Condition — New and material fact — Meaning — Discovery of a memo from the administration not constituting an act having an adverse effect — Not included (Staff Regulations, Art. 90) 1. In the context of an action brought by a member of the contract staff who was employed without first having successfully taken a CAST test, because the European Personnel Selection Office (EPSO) was not practically able to hold such a test, the Commission cannot legitimately object that the action is inadmissible on the basis that the applicant has not been successful in that selection procedure and, therefore, that there was no act having an adverse effect. It is not open to the Commission to rely on irregularities which may have been due to its own conduct. (see paras 20-22) See: Judgment of 13 July 1972 in Bernardi v Parliament, 90/71, EU:C:1972:68, paragraph 10 Judgment of 21 July 1998 in Mellett v Court of Justice, T‑66/96 and T‑221/97, EU:T:1998:187, paragraph 98 2. A memo by which the Office for Administration and Payment of Individual Entitlements (PMO) invited the Director General of the Commission Directorate-General for Personnel and Administration to offer contracts classifying the holder in function group II to individually identified members of the contract staff classified in function group I cannot be regarded as an act having an adverse effect for the purposes of Article 90(2) and Article 91(1) of the Staff Regulations. The memo has not produced legal effects liable to change the situation of the staff concerned, given that their reclassification would require a decision to that effect to be adopted by the authority empowered to conclude contracts of employment. (see para. 25) 3. The receipt of notification of an act which is referred to in Article 90(2) of the Staff Regulations, and which causes the three-month time-limit for complaints to begin to run, connotes knowledge resulting from the notification or publication of that act, as opposed to knowledge a person acquires by unofficial means. This covers a decision which, in accordance with Article 110(4) of the Staff Regulations, was brought to the attention of all staff by being put online on the institution’s intranet site. (see para. 30) See: Judgment of 18 March 1997 in Rasmussen v Commission, T‑35/96, EU:T:1997:36, paragraph 40 4. While the existence of a new and material fact can certainly justify the submission of an application for reconsideration of a decision which has become final, it must be stated that the fact in question must be capable of substantially changing the situation of the person seeking reconsideration of the decision. That is not true of a memo from the administration which is not an act having an adverse effect, the discovery of which cannot, therefore, be regarded as a new and material fact justifying reconsideration of the decision which has become final. (see paras 31, 32) See: Judgment of 13 November 1986 in Becker v Commission, 232/85, EU:C:1986:428, paragraph 10 Judgment of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 51 Orders of 19 February 2008 in R v Commission, F‑49/07, EU:F:2008:18, paragraph 79, and 11 June 2009 in Ketselidis v Commission, F‑72/08, EU:F:2009:58, paragraph 35