62007FO0107_EN
Parties
Grounds
Operative part
Parties
In Case F‑107/07,
ACTION under Articles 236 EC and 152 EA,
Constantin Daskalakis, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by S.A. Pappas, lawyer,
applicant,
v
Commission of the European Communities, represented by J. Currall and B. Eggers, acting as Agents,
defendant,
THE TRIBUNAL (First Chamber),
composed of H. Kreppel, President, H. Tagaras and S. Gervasoni (Rapporteur), Judges,
Registrar: W. Hakenberg,
makes the following
Order
Grounds
1. By application lodged at the Registry of the Tribunal on 8 October 2007 by fax (the original being lodged on 10 October 2007), Mr Daskalakis seeks the annulment of the decision of 28 June 2007 of the appointing authority of the Commission of the European Communities, in so far as that decision does not grant him, for a duration of more than one year, the allowance provided for in Article 7(2) of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’).
Legal context
2. Under Article 7(2) of the Staff Regulations:
‘An official may be called upon to occupy temporarily a post in a grade in his function group which is higher than his substantive grade. From the beginning of the fourth month of such temporary posting, he shall receive a differential allowance equal to the difference between the remuneration carried by his substantive grade and step, and the remuneration he would receive in respect of the step at which he would be classified if he were appointed to the grade of his temporary posting.
The duration of a temporary posting shall not exceed one year, except where, directly or indirectly, the posting is to replace an official who is seconded to another post in the interests of the service, called up for military service or absent on protracted sick leave.’
3. Article 4 of the Commission Decision of 28 April 2004 laying down rules for implementing Article 7(2) of the Staff Regulations as regards temporary management posts (A dministrative Notice  No 83-2004 of 28 June 2004, ‘the decision of 28 April 2004’), provides:
‘Decisions to temporarily fill a post as head of unit shall be taken after consulting the Joint Committee.’
4. According to the third paragraph of Section I of the Annex to the decision of 28 April 2004, to which Article 5 of that decision refers, temporary posting is proposed to the appointing authority after the Directorate-General for Personnel and Administration has examined the application.
5. Under Article 38(d) of the Staff Regulations :
‘An official on secondment pursuant to the first indent of Article 37(a) shall be entitled to a salary differential where the total remuneration carried by the post to which he is seconded is less than that carried by his grade and step in his parent institution …’
6. Under the second paragraph of Article 44 of the Staff Regulations, if an official is appointed head of unit, provided that he has performed his new duties satisfactorily during the first nine months, he is to benefit from advancement in step in that grade with effect from the time of the appointment. This advancement entails, as a general rule, an increase in his basic monthly salary corresponding to the percentage between the first and the second step in each grade. This financial advantage is generally called a ‘management premium’ (‘management premium’).
Facts
7. From 1 April 2004 to 15 September 2005, the applicant, an official in Grade AD 12, step 8, was temporary head of unit in the ‘Support to Audiovisual Content’ unit of the Directorate-General for Education and Culture, a unit which was transferred in January 2005 to the Information Society Directorate-General. It is common ground that during that period the applicant did not receive the differential allowance provided for by Article 7(2) of the Staff Regulations (‘the interim allowance’).
8. On 16 September 2005, the applicant was seconded to the Agency for Education, Audiovisual and Culture set up by decision of the Commission of 14 January 2005 (OJ 2005 L 24, p. 35, ‘the Agency’) to act as head of unit P8. The grade for this post was fixed by the Agency at AD 12, step 2. However, the applicant continued to receive the salary for the grade he held at the Commission, Grade AD 12, step 8. None of his salary statements, until November 2006 inclusive, showed payment of the differential payment provided for in Article 38(d) of the Staff Regulations (‘the secondment allowance’).
9. From August 2006 and with retrospective effect from 16 September 2005, the Office for Administration and Payment of Individual Entitlements (PMO) paid the applicant the management premium. That premium was calculated on the basis of the basic salary which the applicant received at the Commission and which he continued to receive at the Agency, that is to say, the basic salary for Grade AD 12, step 8.
10. In November 2006, the applicant was promoted, in his institution of origin, to Grade AD 13, with effect from January 2006.
11. In December 2006, the PMO made a recalculation of the applicant’s salary, the result of which appeared in the salary statement for that month.
First, the PMO departed from its previous, erroneous, practice, and took into account in that calculation, not the basic salary which the applicant received at the Commission, but the basic salary which he should have received at the agency since his assignment there, that is to say, the basic salary for Grade AD12, step 2.
Second, as a consequence, the PMO made a fresh calculation of the components of the applicant’s salary, as the basis of calculation for contributions, deductions and allowances had changed. In particular, the management premium was calculated on the basis of Grade AD 12, step 2, rather than Grade AD 12, step 8. As the applicant’s monthly remuneration as thus recalculated was then less than he would have received at the Commission (including the part relating to advancement in grade or step), the PMO granted him entitlement to the secondment allowance amounting to EUR 894.36, which represented the difference between the remuneration paid by the Agency, including the management premium, and the remuneration the applicant would have received at the Commission.
12. Following that recalculation and despite the payment of the secondment allowance, the applicant’s monthly remuneration was EUR 271.48 less than that for November 2006. The PMO also decided, as is apparent from the salary statement for December 2006, to adjust in the same direction and retroactively the remuneration paid to the applicant since 16 September 2005 and to recover the sums unduly paid since that date, amounting to EUR 3 791.93.
13. On 7 March 2007, the applicant made two complaints about the recalculation of his remuneration, pursuant to Article 90(2) of the Staff Regulations, one to the Agency, and the other to the Commission. In those complaints, he asserted, inter alia, that he had realised, on studying the recalculation, that the administration had failed to pay him the ‘management premium’ which was due to him by virtue of the duties as head of unit ad interim which he had performed from 1 April 2004 until 15 September 2005. The applicant took the view that the remuneration he received at the Commission should have included that ‘management premium’, calculated on the basis of his salary at the Commission, and that, therefore, the secondment allowance which was paid to him should be increased, to make his remuneration while on secondment equal to that he should actually have received at the Commission, including the ‘management premium’. In his complaints, the applicant did not specify whether that ‘management premium’ was the management premium provided for by Article 44(2) of the Staff Regulations, or the interim allowance referred to in Article 7(2) of the Staff Regulations. In his observations on the plea of inadmissibility raised by the Commission, the applicant none the less asserted that, in his complaint against the reduction of his salary, he had made a claim, under Article 90(2) of the Staff Regulations, for payment of that interim allowance.
14. On 28 June 2007, the appointing authority responded (‘the decision rejecting the complaint’) to the complaint made to it, addressing the applicant’s entitlement to each of the three contested allowances payable under the Staff Regulations. First, as regards the granting of the interim allowance, the appointing authority stated that no formal decision had yet been taken to appoint the applicant head of unit ad interim from 1 April 2004 to 15 September 2005, and that the complaint, reclassified in that regard as a request, had been forwarded to the relevant departments in the Directorate-General for Personnel and Administration. Then, as regards the method of calculation of the management premium, the appointing authority took the view that the competent authority to rule on that aspect of the complaint was the Agency, which had sole responsibility for the management of its staff. Finally, as regards the method of calculation of the secondment allowance, the appointing authority considered that the management premium was a constituent element of the applicant’s remuneration paid by the Agency and that that secondment allowance had been correctly calculated as the difference between the remuneration paid to the applicant by virtue of his duties at the Agency, including the management premium, and the remuneration he would have received in his grade at the Commission. On the question of taking account of the interim allowance in the assessment of the applicant’s entitlement to the secondment allowance, the appointing authority stated that, even if the applicant could obtain recognition that he had performed the duties of head of unit ad interim, the interim allowance would only be granted to him for a limited period, on a temporary basis, and could not therefore be taken into consideration in the present comparison.
15. On 9 July 2007, the Director of the Agency responded to the complaint addressed to him. He first declared that the Agency had no authority to rule on the applicant’s entitlement to the interim allowance and the secondment allowance, as the calculation and payment of those allowances was a matter for the Commission. Then, as regards the management premium, the Director of the Agency took the view that it was right to recalculate it on the basis of the basic salary received by the applicant at the Agency, with retrospective effect as of the date the applicant took up his duties as head of unit in the Agency, on 16 September 2005. Finally, the Director of the Agency decided to forgo the recovery of the money unduly paid, amounting to EUR 3 791.93, on the ground that the applicant could not have been aware of the previous irregularity in the calculation of his remuneration, as the Agency and the PMO themselves had only belatedly drawn a distinction between the basic salary received by the applicant at the Commission and the basic salary paid by the Agency and paid the secondment allowance to him.
16. On 5 July 2007, the relevant departments of the Education and Culture DG and the Information Society DG submitted an ex post facto request to the Directorate-General for Personnel and Administration for the appointment of the applicant as head of unit ad interim for the period from 1 April 2004 to 31 March 2005, that is to say, for a part, limited to one year, of the period when the applicant had been acting head of unit.
Forms of order sought and procedure
17. The applicant claims that the Tribunal should:
– annul the decision rejecting the complaint in so far as, by that decision, the appointing authority refused to grant him the interim allowance for longer than one year;
– order the Commission to pay the costs.
18. By separate document, lodged on 7 December 2007 at the Registry of the Tribunal, the Commission asked the Tribunal to make a decision on inadmissibility not going to the substance of the case. By its plea, the Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs of proceedings under Article 87(3) of the Rules of Procedure of the Court of First Instance of the European Communities, applicable by virtue of Article 122 of the Rules of Procedure of the Civil Service Tribunal to cases brought before the Tribunal before 1 November 2007, the date of entry into force of those rules.
19. By document received at the Registry on 14 January 2008 by fax (the original being lodged on 18 January 2008) the applicant submitted his observations on the plea of inadmissibility raised by the Commission.
20. By letter of 7 February 2008, the Tribunal asked the applicant to produce various documents. The applicant complied with that request by letter of 26 February 2008.
Law
Admissibility of the plea of inadmissibility raised by the Comission by separate document
21. The applicant contends that the plea of inadmissibility raised by the Commission is inadmissible, as it was not served on him within the period of one month prescribed by Article 78(1) of the Rules of Procedure.
22. In that connection, the legal basis for the present order must first be determined.
23. Although the Commission’s claim, brought by separate document, is presented as having been brought ‘under Article 78 of the Rules of Procedure’ that claim concerns the admissibility of an application lodged at the Registry of the Tribunal before 1 November 2007, the date of entry into force of those rules. The procedural rules referred to in Article 78 of the Rules of Procedure, in particular that laid down by paragraph 3 of that article, which empowers the Tribunal to decide by way of order not going to the substance of the case, together
with the rules on admissibility of the application to which Article 114 of the Rules of Procedure of the Court of First Instance referred, applicable mutatis mutandis to the Tribunal pending the entry into force of the Rules of Procedure, must, therefore, be applied (see, to that effect, the order of the Tribunal of 25 January 2008 in Case F-80/06 Duyster v Commission [2008] ECR-SC I-A-0000 and II-0000, paragraphs 38 to 43).
24. Second, it must be considered whether the period within which the plea of inadmissibility must be lodged is the period of one month laid down by Article 78(1) of the Rules of Procedure, or the period of two months laid down by the Rules of Procedure of the Court of First Instance for the lodging of a plea of inadmissibility before that court (see Duyster v Commission, paragraph 43).
25. The time allowed to the defendant for submitting a plea of inadmissibility begins to run, whether under Article 114 of the Rules of Procedure of the Court of First Instance or under Article 78 of the Rules of Procedure, from the service of the application. As such service was effected, in the present case, before the entry into force of the Rules of Procedure, the period to be observed by the Commission was necessarily that which was then in force, of two months, running from the time of service, laid down by the Rules of Procedure of the Court of First Instance. The entry into force of the Rules of Procedure could not have the effect in law of reducing the period, which had already begun to run on 1 November 2007, for the lodging of a plea by separate document. As the Commission rightly observes, that interpretation is required for the sake of legal certainty (see, to that effect, the order of the Tribunal
of 14 December 2007 in Case F-82/06 Duyster v Commission
[2007] ECR-SC I-A-0000 and II-0000, paragraph 40, and, by analogy, as regards the predictability of the rules of court proceedings, the judgment of the Tribunal in Case F-16/05 Falcione v Commission [2006] ECR-SC I-A-0000 and II-0000, paragraph 84).
26. Thirdly, and finally, it should be pointed out that, contrary to the applicant’s allegations, the relevant date for verifying observance of the prescribed period of two months is the date on which the plea of inadmissibility is ‘lodged’ with the Tribunal, a formality expressly required by Article 114 of the Rules of Procedure of the Court of First Instance, and not that of service of that plea on the applicant (see, by analogy, as regards the period prescribed for lodging the defence Case T-47/92 Lenz
v Commission
[1992] ECR II-2523, paragraph 34). The interpretation advocated by the applicant, apart from the fact that it runs counter to the relevant text, would have the effect, in practice, o f reducing the length of time allowed to the defendant and would make the latter’s procedural rights depend on the degree of diligence shown by the Registry of the Tribunal in serving the application.
27. Consequently, in lodging its plea of inadmissibility on 7 December 2007, less than two months after the lodging of the application and thus a fortiori
less than two months after its service, the Commission observed the time-limit imposed on it in this case under the provisions of the Rules of Procedure of the Court of First Instance.
28. The plea of inadmissibility raised by the Commission is, therefore, admissible.
The admissibility of the action
29. Under Article 78(1) and (2) of the Rules of Procedure, if a party applies to the Tribunal for a decision on admissibility not going to the substance of the case, the remainder of the procedure on the application is oral, in the absence of a decision to the contrary by the Tribunal.
In the present case, the Tribunal considers that it has sufficient information from the documents on the file and has decided, pursuant to these provisions, to rule without further procedure.
30. Unlike the complaints submitted by the applicant, which criticised the recalculation of his remuneration as a whole and the formulation of which, given the ambiguous use of the term ‘management premium’, did not give a clear picture of his grievances, the terms of the application show clearly, first, that it is directed only against the Commission, as the applicant has not disputed the response of the Agency to his complaint and, second, that the applicant limits his criticism to the application by the Commission of Article 7(2) of the Staff Regulations, to the exclusion of other components of his remuneration. By his action, the applicant is thus disputing only the failure to grant him the interim allowance for a period longer than one year, by virtue of the duties he performed at the Commission from 1 April 2004 to 15 September 2005.
31. Neither of the two decisions susceptible of being construed as acts adversely affecting the applicant in these proceedings, that is to say, the decision rejecting the complaint and the salary statement of December 2006, determines the applicant’s entitlement to the interim allowance.
32. First, as regards the decision rejecting the complaint, as stated in paragraph 14 of this order, the appointing authority confined itself, in that decision, to informing the applicant that no decision had yet been taken to appoint him head of unit ad interim for the period from 1 April 2004 to 15 September 2005, and that the request made to that effect by the applicant had been forwarded to the departments responsible.
33. Admittedly, the appointing authority pointed out, essentially, that the absence of a decision at that stage assigning the duties of head of unit ad interim to the applicant prevented the award of the interim allowance to the applicant and its inclusion in the calculation of his remuneration. However, such an assessment, which lends itself necessarily to an interpretation a contrario, cannot be construed as a position on the part of the administration opposing the applicant’s entitlement to the interim allowance from the outset. Still less, therefore, could the appointing authority, by its decision rejecting the complaint, limit the payment of that allowance to the applicant to a period of one year. Moreover, that decision closes with the statement: ‘as for his claim regarding his appointment [to the post of head of unit] ad interim, it has been transmitted to the responsible services’.
34. Second, as regards the salary statement for December 2006, none of the information given in it suggests the existence of a decision by the administration concerning the claims of the applicant to the interim allowance. The statement only shows the new method of calculation by the PMO of the remuneration paid by the Agency to the applicant and the consequences for the calculation of the secondment allowance. It is limited to a depiction of the financial situation of the applicant while on secondment for the period from 16 September 2005 to 31 December 2006 and contains no information concerning the previous duties as acting head of unit, performed by the applicant more than one year previously at the Commission.
35. Moreover, the applicant cannot complain that, by that salary statement, the PMO altered the method of calculation of the total remuneration attaching to his previous duties at the Commission within the meaning of Article 38(d) of the Staff Regulations, on the ground that the PMO had stopped taking account, from December 2006, of the interim allowance. At no time before December 2006 did the PMO include that allowance in the total remuneration of the applicant in the above sense, that is to say, the remuneration which, when compared with the remuneration attaching to the post on secondment, gives rise, if it is higher than the latter, to the payment of a secondment allowance. If the PMO had included the interim allowance in the total remuneration of the applicant at the Commission, that total remuneration, calculated on the basis of a basic salary for Grade AD 12, step 8, and including a premium calculated in accordance with that salary, would have been higher than the applicant’s total remuneration at the Agency (that salary being calculated on the basis of a lower basic salary, for Grade AD 12, step 2), with the consequence that the other premiums and allowances and, in any event, the management premium, would have been lower than those calculated on the basis of a basic salary for Grade AD 12, step 8. In that event, the applicant should have received a secondment allowance to cover that disparity. According to the applicant’s salary statements he did not receive that allowance at any time before December 2006.
36. The action is, therefore, not directed against an act adversely affecting the applicant at that stage and must, for that reason alone, be declared inadmissible.
37. In any event, although the applicant maintains, in his observations on the plea of inadmissibility and in his letter to the Tribunal of 26 February 2008, that he submitted a request, under Article 90(1) of the Staff Regulations, for the payment of the interim allowance for the whole period of his posting ad interim at the Commission, a request which was ‘incorporated’ into his complaint of 7 March 2007 addressed to the Commission and rejected by the decision rejecting the complaint, that fact is not, in any event, such as to establish that the application is admissible. Even if the decision rejecting the complaint may contain a definitive position on the part of the administration on that request by the applicant, in the sense that the interim allowance could be paid to him for a maximum period of one year only, and thus constituted an act adversely affecting him, the claims made against that act would not be admissible because they were not preceded by a complaint under the conditions required by Articles 90 and 91 of the Staff Regulations. In any event, any act adversely affecting the applicant relating to the grant of the interim allowance can only post-date the facts of the present case and be the result either of a refusal to grant that allowance or of a failure to recognise fully the entitlement which the applicant claims in that regard.
Costs
38. Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought before the Tribunal from the date on which those Rules enter into force, that is to say from 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance remain applicable mutatis mutandis
to cases pending before the Court before that date.
39. Under Article 87(2) of the Rules of Procedure of the Court of First Instance 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 88 of those rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. However, under the second subparagraph of Article 87(3) of those rules, the Court of First Instance may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.
40. In that regard, the fact that an application is dismissed as inadmissible is not, in principle, a fact which in itself is liable to establish that the applicant’s conduct is abusive. Moreover, apart from a passing reference to the attitude of the applicant in paragraph 21 of the request for a decision on inadmissibility not going to the substance of the case, the Commission has given no grounds for its claim that the applicant should be ordered to pay the costs. It is true that the applicant could have realised, on reading the responses to his complaints, that the administration had not yet made a decision on his entitlement to the interim allowance. However, it cannot be ruled out that the applicant might have had doubts about the intentions of the administration following the decision rejecting his complaints. Similarly, account should be taken of the overall context of the dispute and the uncertain position in which the applicant was placed, before the lodging of his complaints, uncertainty which warranted the Agency’s discontinuance of its action for recovery of sums unduly paid.
41. Against that background the Commission’s claims that the applicant should be ordered to pay the costs pursuant to Article 87(3) of the Rules of Procedure of the Court of First Instance cannot be upheld.
42. Accordingly, a fair appraisal of the circumstances of the case requires that each party should bear its own costs.
Operative part
On those grounds,
THE TRIBUNAL (First Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. The parties shall bear their own costs.
Luxembourg, 22 May 2008.