ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

10 September 2007

Case F-146/06

Michael Alexander Speiser

v

European Parliament

(Civil service – Members of the temporary staff – Remuneration – Expatriation allowance – Complaint submitted out of time – Manifest inadmissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Speiser seeks annulment of the decision of the Secretary-General of the Parliament rejecting his complaint regarding refusal to pay him the expatriation allowance.

Held: The action is dismissed as manifestly inadmissible. The applicant is ordered to pay one third of his own costs. Parliament is ordered to pay its own costs and two thirds of the costs of the applicant.

Summary

1. Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 46)

2. Procedure – Costs – Set-off – Exceptional grounds

(Rules of Procedure of the Court of First Instance, Art. 87(3), first subpara.; Council Decision 2004/752, Art. 3(4))

1. An official or member of the temporary staff is not allowed to circumvent the time‑limits laid down by Articles 90 and 91 of the Staff Regulations for lodging a complaint and an appeal by calling into question, by means of a request, a previous decision which has not been challenged within the period prescribed, since only the existence of material new facts may justify the submission of a request for a review of a decision which has become definitive.

The fact that the administration subsequently re-examined the case of the official or temporary staff member at his request in order to provide him with further information cannot be regarded as a new fact permitting derogation from the system of mandatory time-limits. A letter from the administration stating that an earlier decision of rejection remains unchanged is merely a confirmation of that earlier decision and cannot therefore have the effect of setting a new time-limit for appeal running.

(see paras 22, 27)

See:

127/84 Esly v Commission [1985] ECR 1437, para. 10; 153/85 Trenti v ESC [1986] ECR 2427, para. 13

T-144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, para. 147; T-358/03 Krahl v Commission [2005] ECR-SC I‑A‑215 and II‑993, para. 52 and the case-law cited therein

F-11/05 Chassagne v Commission [2006] ECR-SC I-A-1-65 and II‑A-1-241, para. 24

2. Pursuant to the first subparagraph of Article 87(3) of the Rules of Procedure of the Court of First Instance, where the circumstances are exceptional, the Court of First Instance may order that the costs be shared.

The fact that, in an appeal that was rejected because the prior complaint was submitted late, the administration has, at least in part, occasioned the late complaint by encouraging the person concerned to lodge a complaint against a confirmatory act that did not adversely affect him, constitutes an exceptional circumstance justifying a sharing between the institution in question and the official who is the applicant of the costs incurred by the latter for the purposes of the proceedings.

Furthermore, although it is indisputable that a party may, at any time, rely on a rule of public policy concerning the admissibility of the action, it appears incompatible with the good faith that should govern the Community institutions’ relations with their officials for an institution to invoke before the court the confirmatory nature of an act after having given the official the mistaken impression that that act could form the subject of a complaint.

(see paras 30-33)