ORDER OF THE GENERAL COURT (Sixth Chamber)
16 September 2019 (*)
(Civil service — Members of the temporary staff — 2016 staff report — Sick leave — Claim for compensation — Complaint brought after expiry of the three-month period prescribed by Article 90(2) of the Staff Regulations — Force majeure — Excusable error — Manifest inadmissibility)
In Case T‑617/18,
ZH, represented by L. Levi and N. Flandin, lawyers,
applicant,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä, T. Zbihlej and C.‑M. Bergerat, acting as Agents, and by A. Duron, lawyer,
defendant,
APPLICATION pursuant to Article 270 TFEU seeking, first, annulment of the applicant’s 2016 staff report and, second, compensation for the non-material damage which she claims to have suffered,
THE GENERAL COURT (Sixth Chamber),
composed of S. Papasavvas, acting as President, Z. Csehi and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        From 1 November 2008 until 31 October 2018, the applicant, ZH, performed duties as a scientific administrator at the European Chemicals Agency (ECHA). Since she was recruited as a member of the temporary staff under Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), she received an initial contract of 5 years, which was subsequently renewed until 31 October 2018. The applicant was classified at grade AD 9 from 2011.
2        On 16 January 2017, the 2016 appraisal exercise was launched by ECHA. The applicant submitted her self-assessment on 26 January 2017.
3        The applicant then participated in two interviews, the first of which took place on 17 February 2017 with her reporting officer and the second of which took place at the applicant’s request on 17 March 2017 with her reporting officer and the appeal assessor.
4        By email of 29 March 2017, the human resources department of ECHA informed the applicant that, first, her 2016 staff report had become final as a result of the appeal assessor’s review (‘the contested staff report’) and, second, that she was entitled to challenge that report by means of a complaint within 3 months, in accordance with Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
5        In reply to an email of the same day from the applicant, the appeal assessor confirmed to the applicant the circumstances set out in paragraph 4 above. On that same day, the applicant replied to the appeal assessor that she would consider the situation and then decide what she wished to do.
6        From 31 March 2017 until 9 April 2017, the applicant was absent from work because of sickness. From 12 April 2017, she was on uninterrupted sick leave until the end of her contract.
7        On 17 April 2018, through her legal counsel, the applicant lodged a complaint against the contested staff report. In that complaint she asserted that, because of her health conditions, she had not been able previously to assert her rights under the Staff Regulations. In her view, the fact of being unable to do so for medical reasons implied that the period laid down in Article 90(2) of the Staff Regulations could not have started to run or have expired. As regards the substance, the applicant put forward a number of arguments alleging (i) infringement of the procedure which led to the adoption of the contested staff report, (ii) failures in the assessment of some of her tasks, (iii) manifest errors of assessment committed by ECHA, and (vi) breach of the obligation to state reasons on the part of the latter, which, according to the applicant, ought to have led to the annulment of the contested staff report.
8        By decision of 2 July 2018, the Executive Director of ECHA, acting as the authority empowered to conclude contracts of employment, rejected the complaint, finding that it was manifestly inadmissible (‘the decision rejecting the complaint’). The applicant became aware of the decision rejecting the complaint on 3 July 2018.
Procedure and forms of order sought
9        By application lodged at the Registry of the General Court on 12 October 2018, the applicant brought the present action.
10      On 15 February 2019, the applicant submitted a request for a hearing.
11      As a member of the Sixth Chamber was unable to sit, the President of the General Court designated another Judge in order to attain the quorum necessary to give judgment.
12      The applicant claims that the Court should:
–        annul the contested staff report;
–        also annul, to the extent necessary, the decision rejecting the complaint;
–        order that compensation be paid for the non-material damage which she has suffered;
–        order the defendant to pay all of the costs.
13      ECHA contends that the Court should:
–        dismiss the action as inadmissible or, in the alternative, as entirely unfounded;
–        reject the claim for compensation in respect of the alleged non-material damage;
–        order the applicant to pay all costs and expenses incurred by ECHA in the proceedings.
Law
14      Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the Court may decide to give a decision by reasoned order and without taking further steps in the proceedings.
15      In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to Article 126 of its Rules of Procedure, to give a decision without taking further steps in the proceedings, even though the applicant did request a hearing (see, to that effect and by analogy, orders of 24 September 2008, Van Neyghem v Commission, T‑105/08 P, EU:T:2008:402, paragraph 21, and of 2 December 2010, Apostolov v Commission, T‑73/10 P, EU:T:2010:495, paragraph 11).
16      As a preliminary point, it should be noted that the applicant has specifically limited the subject matter of her action to the annulment of the contested staff report and of the decision rejecting the complaint and to the payment of compensation for the non-material damage relating thereto. The decision of ECHA’s authority empowered to conclude contracts of employment to terminate its employment relationship with the applicant, the complaint against that decision, the response to the complaint relating thereto, all matters which occurred after the contested staff report which the applicant relies on in the application (see, inter alia, paragraphs 31, 33 to 35, 37 and 38) and the related documentation (see, in particular, Annexes A.9, A.11, A.12 and A.14) are therefore irrelevant for the purposes of the present case.
17      As regards the admissibility of her action, the applicant claims, first of all, that she did not lodge a complaint within the three-month period following receipt of the contested staff report, provided for in Article 90(2) of the Staff Regulations, since she was not in a position, for medical reasons, to exercise her employment rights, that is to say, to examine the assessment of her performance and, subsequently, to decide whether that assessment should be challenged by a complaint. She adds that her state of health was negatively impacted by the adverse working conditions with which she was faced.
18      The applicant then goes on to point out that the fact that she was on sick leave constitutes a case of force majeure which should be taken into consideration for the purposes of a derogation from the time limit laid down in Article 90(2) of the Staff Regulations.
19      Finally, the applicant submits that, in any event, the fact that she lodged a complaint after the time limit laid down in Article 90(2) of the Staff Regulations had passed should be regarded, at the very least, as an excusable error, having regard to her state of health and her sickness.
20      ECHA contends that the applicant’s complaint against the contested staff report was submitted out of time and that the conditions for acknowledging a case of force majeure or excusable error, which might justify a derogation from the time limit laid down in Article 90(2) of the Staff Regulations, are manifestly not satisfied in the present case. The action must therefore, in its view, be dismissed as being inadmissible.
21      In this respect, it should be noted, in the first place, that Articles 90 and 91 of the Staff Regulations, applicable by analogy to members of the temporary staff by virtue of Article 46 of the CEOS, make the admissibility of an action brought before the Court by an official or a former official against the institution to which he belongs or belonged conditional on the proper observance of the preliminary administrative procedure and on compliance with the prescribed time limits for that procedure (judgment of 6 July 2004, Huygens v Commission, T‑281/01, EU:T:2004:207, paragraph 125). Even though the lodging of a complaint against a staff report is not mandatory (see, to that effect, judgment of 3 July 1980, Grassi v Council, 6/79 and 97/79, EU:C:1980:178, paragraph 15), where the person concerned pursues the path of making a prior complaint, he must comply with the procedural requirements applicable to it (judgment of 3 December 2015, Cuallado Martorell v Commission, T‑506/12 P, EU:T:2015:931, paragraph 56).
22      Thus, pursuant to Article 90(2) of the Staff Regulations, a complaint must be lodged within 3 months of the date of notification of the decision to the person concerned, and in no case later than the date on which the latter received such notification, if the measure affects a specified person.
23      According to settled case-law, the period of 3 months for lodging a complaint against an act adversely affecting an official, laid down by Article 90(2) of the Staff Regulations, is a matter of public policy and is not subject to the discretion of the parties or of the Court, since it was established in order to ensure that legal positions are clear and certain and that there is legal certainty (see order of 7 September 2005, Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 35 and the case-law cited).
24      In the second place, the obligation to observe the time limit for lodging a complaint does not preclude the possibility that the person concerned may, in exceptional circumstances, justify the lateness of his complaint by establishing, where appropriate, the existence of an unforeseeable circumstance, force majeure or excusable error (see judgment of 18 December 2008, Lofaro v Commission, T‑293/07 P, EU:T:2008:607, paragraph 38 and the case-law cited).
25      The concepts of ‘unforeseeable circumstances’ or ‘force majeure’ require there to be abnormal difficulties, independent of the will of the applicant and which appear to be inevitable, even if all due care had been taken. Both concepts contain an objective element relating to abnormal circumstances unconnected with the person in question, and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, inter alia, act diligently in order to comply with the prescribed time limits. Thus, the concept of force majeure does not apply to a situation in which a diligent and prudent person would objectively have been able to take the necessary steps before the expiry of the period prescribed for lodging a complaint (see order of 12 October 2009, Aayhan and Others v Parliament, T‑283/09 P, EU:T:2009:397, paragraph 19 and the case-law cited).
26      In addition to unforeseeable circumstances, which were not relied on by the applicant in the present case, and force majeure, an excusable error also constitutes a potential derogation, established by case-law, from the time limit for lodging a complaint. Such a concept must, however, be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institutions had been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally prudent person (see judgment of 5 October 2009, de Brito Sequeira Carvalho and Commission v Commission and de Brito Sequeira Carvalho, T‑40/07 P and T‑62/07 P, EU:T:2009:382, paragraph 204 and the case-law cited).
27      In those circumstances, it is necessary in the present case to verify whether the complaint, which the applicant acknowledges that she did not lodge within the three-month period from the date of receipt of the contested staff report, which occurred on 29 March 2017, could, however, be regarded as admissible on account of the existence of a case of force majeure or an excusable error, as the applicant claims.
28      In the first place, as regards the alleged existence of a case of force majeure advanced by the applicant, it must be noted, first, that the applicant’s poor state of health, which, moreover, is not disputed by ECHA, appears to be an objective element relating to abnormal circumstances unconnected with the applicant. Contrary to ECHA’s submissions, the applicant’s sick leave is not an event for which she can be held responsible (see, to that effect, judgment of 14 November 2017, Vincenti v EUIPO, T‑586/16, EU:T:2017:803, paragraph 26).
29      However, in order for the sickness relied on by the applicant to come under the concept of force majeure, it must be ascertained whether the seriousness of the applicant’s health conditions actually prevented her from safeguarding herself against the consequences of such an abnormal event by taking appropriate steps without making unreasonable sacrifices, as required by the case-law cited in paragraph 25 above. An official or servant on sick leave cannot generally be regarded as not being in a position to assert his rights under the Staff Regulations (see, to that effect, judgment of 14 November 2017, Vincenti v EUIPO, T‑586/16, EU:T:2017:803, paragraph 34).
30      In the present case, the medical certificates presented by the applicant, dated 4 April 2018 and 3 October 2018, show that she was affected by a deterioration in her state of mental health, which also led to her hospitalisation from 6 June 2017 to 29 July 2017. The doctor who issued those certificates concluded that the applicant was unable to exercise her employment rights from the beginning and throughout her period of sick leave. Such medical certificates establish, however, a presumption which is not irrebuttable (see, to that effect, judgment of 5 December 2002, Stevens v Commission, T‑277/01, EU:T:2002:302, paragraph 55). It is therefore appropriate to analyse, in the present proceedings, the other evidence put forward by ECHA and contained in the file in order to ascertain whether it is capable of calling into question the applicant’s alleged inability to exercise her rights under the Staff Regulations.
31      In that respect, it is clear from the file that the applicant sent to ECHA (i) a request for advice concerning the manner in which a complaint is lodged on 1 April 2017 (Annex B.5 to the defence), (ii) a request for advice on submitting a complaint on 11 April 2017 (Annex B.7 to the defence), (iii) a request concerning education allowances on 4 May 2017 (Annex B.8 to the defence), (vi) an expression of interest concerning a career enhancement opportunity with ECHA on 19 November 2017 (Annex B.10 to the defence) and (v) that she had a remote interview concerning that opportunity on 7 December 2017 (Annex B.11 to the defence). Notwithstanding the sickness as attested by the medical certificates and contrary to the conclusion reached by her doctor, the applicant was therefore able to exercise some of her employment rights in a number of instances while she was on sick leave.
32      It is also important to note that the applicant expressed her dissatisfaction with the staff report at a very early stage, that is to say, on the same day as that on which it was received (see Annex B.4 to the defence) and that she expressed on several occasions her intention to lodge a complaint in the exchanges which she had with the appeal assessor and the departments of ECHA (see Annexes B.5, B.6 and B.7 to the defence). Even if, as the applicant claims, she was not in fact in a position fully to assess the contested staff report and to formulate a complaint by herself on account of her state of health, as attested by the medical certificates, her exchanges with ECHA in April 2017 demonstrate at the very least that she was in a state which enabled her to be assisted by a lawyer, as she did subsequently, and thus lodge a complaint against the contested staff report within the period laid down for that purpose.
33      As regards the applicant’s claim that she could not have lodged a complaint at the time when the three-month period had expired, given that she had been hospitalised during the months of June and July 2017, it should be noted that the complaint was lodged by the applicant’s lawyer several months later and well beyond the applicable period and, in total, more than 1 year after the notification of the contested staff report, while the applicant remained on sick leave. The applicant has not established that it was not open to her to do so also at an earlier date.
34      In those circumstances, the condition as to the existence of a subjective element of diligence required by the case-law referred to in paragraph 25 above in order for her situation to come under the concept of force majeure is not satisfied in the present case.
35      Second, with regard to the applicant’s argument that ECHA did not request a second medical opinion, this is irrelevant since, contrary to what the applicant claims, ECHA does not call into question her state of health. That argument is, in any event, ineffective, since it has no impact for the purposes of assessing whether there is a case of force majeure.
36      Third, in so far as the applicant suggests that the period laid down in Article 90(2) of the Staff Regulations had not started to run, or even had to be regarded as having been interrupted as a result of her sick leave, with the result that it could not have expired, it must be noted that EU law does not recognise the possibility of suspending ab initio or of interrupting the period for lodging a complaint and allows only the person concerned, in exceptional circumstances, to justify any delay in submitting such a complaint, something which the applicant has not succeeded in doing in the present case.
37      In those circumstances, the existence of a case of force majeure cannot be established.
38      In the second place, as regards the alleged existence of an excusable error, it should be noted that the applicant does not establish by any evidence, or even allege, that ECHA’s conduct had given rise to a pardonable confusion in her mind within the terms of the case-law referred to in paragraph 26 above. She merely refers to her state of health and her sickness, which, in her view, justified on that basis a derogation from the limitation period laid down in Article 90(2) of the Staff Regulations.
39      It is apparent from the exchanges that the applicant had with ECHA in April 2017, as mentioned in paragraph 31 above, that she received precise and consistent information from ECHA, in particular in relation to the time limit laid down in Article 90(2) of the Staff Regulations, with the result that ECHA could not have given rise to any doubt in the applicant’s mind.
40      It follows that the existence of an excusable error cannot be established.
41      Thus, the complaint which the applicant lodged on 17 April 2018 must be considered to be out of time in the light of the three-month period referred to in Article 90(2) of the Staff Regulations and, consequently, the applicant’s action must be declared manifestly inadmissible for failure to comply with the requirements of the pre-litigation procedure.
42      In the light of all the foregoing considerations, the action must be dismissed in its entirety as being manifestly inadmissible.
Costs
43      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
44      Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by ECHA.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      The action is dismissed.
2.      ZH shall pay the costs.
Luxembourg, 16 September 2019.
E. Coulon
S. Papasavvas
Registrar
Acting as President
*      Language of the case: English.