ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

19 August 1998

Case T-160/97

Hans Gevaert

v

Commission of the European Communities

‛Officials — Judgment of the Court of First Instance — Request for reclassification in grade — Objection of inadmissibility — Material new fact — Admissibility’

Full text in French II-1363

Application for:

annulment of the Commission's decision of 26 August 1996 rejecting the applicant's request for a review of his classification in grade.

Decision:

Application dismissed.

Abstract of the Order

By decision of the appointing authority of 18 January 1995, the applicant was appointed a probationary official of the Commission, in the capacity of junior assistant, and provisionally classified in grade B 5, step 3, with effect from1 September 1994. By decision of 6 June 1995, which took effect from 1 June 1995, the appointing authority established the applicant in his post.

On 5 October 1995 the Court of First Instance delivered its judgment in Case T-17/95 Alexopoulou v Commission [1995] ECRSC II-683 (‘the Alexopoulou judgment’)

By decision of 7 February 1996 the Commission, acting on that judgment, modified its decision of 1 September 1983 on the criteria applicable to appointment in grade and classification in step on recruitment.

On 24 June 1996 the applicant submitted to the appointing authority a request for a review of his classification in grade. The Commission rejected that request by decision of 26 August 1996 (‘the contested decision’), on the ground that it had been submitted more than three months after adoption of the initial classification decision relating to the applicant. On 25 November 1996 the applicant lodged a complaint against the contested decision. On 3 February 1997 the Commission adopted a decision expressly rejecting the complaint.

Admissibility

The applicant failed, within the period of three months provided for by Article 90(2) of the Staff Regulations of officials of the European Communities, to lodge a complaint against the appointing authority's decision of 18 January 1995 concerning his classification on recruitment. Consequently, the applicant's classification in grade became definitive with effect from the expiry of the time-limit for lodging a complaint, that is to say, 31 August 1995, the applicant having acknowledged receipt of the appointing authority's decision on 31 May 1995 (paragraph 33).

An official cannot be permitted to challenge the conditions of his initial recruitment once that recruitment has become definitive (paragraph 34).

See: 190/82 Blomefield v Commission [1983] ECR 3981, para. 10; T-131/95 Progoulis v Commission [1995] ECRSC II-907, para. 38; T-16/97 Chauvin v Commission [1997] ECRSC II-681, para. 38

The decision of 7 February 1996 does not, by its nature and legal scope, constitute a new fact justifying the review of a decision which was not contested within the prescribed time-limits.

See: 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73, 135/73, 136/73 and 137/73 Sclwts-Kortner and Others v Council, Commission and Parliament [1974] ECR 177, para. 39; 125/87 Brown v Court of Justice [1988] ECR 1619, para. 14; Chauvin v Commission, cited above, para. 46

Since the administration's right to appoint a newly recruited official to the upper grade in the starting or intermediate career bracket must be construed as an exception to the general classification rules, the adoption of the decision of 7 February 1996 is not such as to prejudice the applicant and cannot therefore constitute a new fact relating to him (paragraph 44).

See: 9/81 Williams v Court of Auditors [1982] ECR 3301, para. 14; 219/84 Powell v Commission [1987] ECR 339, para. 8; Alexopoulou v Commission, cited above, paras 20,21 and 24; Chauvin v Commission, cited above, para. 50

The Alexopoulou judgment does not constitute a material new fact authorising the applicant to submit a request for reclassification after the expiry of the time-limit for lodging a complaint (paragraph 49).

See: Chauvin v Commission, cited above, paras 39 to 45

Operative part:

The application is dismissed as inadmissible.