JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

29 January 1997

Case T-7/94

Hilde Adriaenssens and Others

v

Commission of the European Communities

‛Officials — Actions for annulment — Pay slips applying the scales in respect of certain parental contributions fixed by an inter-institutional joint committee — Admissibility — Time-limits — Time-barred’

Full text in French II-1

Application for:

annulment of the implicit decisions of the Commission rejecting the applicants' complaints seeking to have the scales applied in Luxembourg for the parental contributions which they are required to pay as users of the nursery, kindergarten and study centres brought into line with those in force in Brussels and, in so far as those decisions are based on the decision of the Comité des Activités Sociales fixing those scales, a declaration that that decision is unlawful.

Decision:

application dismissed as inadmissible.

Abstract of the Judgment

The nursery, kindergarten and study centre services offered by the Centre Polyvalent de l'Enfance (Childhood Centre) (CPE) are provided by the Community institutions in both Luxembourg and Brussels against payment of a parental contribution deducted each month from the pay of the official or the servant concerned. In Luxembourg, the parental contribution scales in respect of those services are fixed by the Comité des Activités Sociales (CAS), an inter-institutional joint body in which representatives of the institutions based in that city participate.

The applicants, who are Commission officials, are parents of children attending the CPE.

Each of the 10 applicants submitted requests to the Commission, between 6 October and 11 November 1992, for assistance under Articles 24 and 90(1) of the Staff Regulations of Officials of the European Communities (the Staff Regulations). Claiming that the decision of the CAS fixing the scales to be applied in Luxembourg infringed the principle of equality of treatment in so far as those scales were considerably higher than the scales applied in Brussels, they asked the Commission to bear the consequences of the unlawfulness of that decision. They also asked the Commission, in its capacity as a member of the CAS, to take steps to put an end to the disparity between the scales in Brussels and Luxembourg and to ensure transparency in the administration of social activities.

On 20 April 1993, the Commission replied to the applicants' requests, stating that the inter-institutional joint character of the CAS prevented participants from exercising decisive influence on the decisions of that body.

The applicants lodged complaints in May 1993, in which they asked the Commission to bring the sums deducted from their monthly pay into line with those which would apply to them in Brussels.

On 19 October 1993 the Commission rejected those complaints.

On 13 January 1994, the applicants brought these proceedings.

Admissibility

In order to determine whether the plea of inadmissibility on the ground that the action was brought out of time is well founded, it is first necessary to consider whether the requests submitted to the Commission between 6 October and 11 November 1992 actually amount to requests for assistance within the meaning of Articles 24 and 90(1) of the Staff Regulations (paragraph 23).

Article 24 of the Staff Regulations is concerned with the defence of officials by the institution against the acts of third parties and not against acts emanating from the institution itself. The CAS, which adopted the decision fixing the scales at issue, does not constitute a third party in relation to the Commission. That inter-institutional joint body has no separate legal identity and cannot as such be brought before the Community judicature (paragraph 24).

See: T-495/93 Carrer and Others v Court of Justice [1994] ECRSC II-651, para. 22

In those circumstances, the requests submitted by the applicants cannot be considered requests for assistance within the meaning of Article 24 of the Staff Regulations (paragraph 25).

The main purpose of the requests was that the Commission, in its capacity as a member of the CAS, should take steps, in that inter-institutional body, to ensure that the level of the parental contributions deducted from their monthly pay was reduced to that which would result from the application of the scales in force in Brussels. The two other claims in the requests seem to be of secondary importance (paragraph 26).

By means of the requests referred to above, the applicants challenged the legality of the decision of the CAS fixing the scales to be applied in Luxembourg and challenging the sums deducted each month from their pay in respect of parental contributions. The possibility of submitting a request within the meaning of Article 90(1) does not enable an official to evade the time-limits laid down in Articles 90 and 91 for lodging complaints and commencing proceedings by using such a request as a means of contesting an earlier decision which was not challenged in due time. It should be added that Article 90(1) of the Staff Regulations, like Article 175 of the EC Treaty, is concerned with circumstances where there is no decision or measure and ‘not the adoption of a measure different from that desired or considered necessary by the person concerned’ (paragraph 27).

See: 232/85 Becker v Commission [1986] ECR 3401, para. 8; T-58/89 Williams v Court of Auditors [1991] ECR II-77, para. 24; T-391/94 Baiwir v Commission [1996] ECRSC II-787, para. 33

The requests submitted by the applicants cannot be considered to be requests within the meaning of Article 90(1) of the Staff Regulations. Consequently, they should have been treated by the Commission as complaints lodged by the applicants in respect of their pay slips (paragraph 28).

Pay slips are acts adversely affecting officials which may be the subject of a complaint and ultimately an action (paragraph 29).

See: 262/80 Andersen and Others v Parliament [1984] ECR 195, para. 4; T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723, para. 20; T-536/93 Benzler v Commission [1994] ECRSC II-777, para. 15

The applicants' so-called requests, submitted between 6 October and 11 November 1992 were, by virtue of the second paragraph of Article 90(2) of the Staff Regulations, implicitly rejected between 6 February and 11 March 1993. This action, which was only lodged on 13 January 1994, was brought more than 10 months after those implicit rejections and must therefore be declared inadmissible on the ground that it was brought out of time (paragraph 30).

The inadmissibility of the action is not altered by the fact that, before the time-limit for bringing an action had lapsed, the Commission replied to the applicants' complaints by letters of 20 April 1993. Even if those letters were such as to start the period for bringing an action to run afresh under the second indent of Article 91(3), this action, which was lodged on 13 January 1994, would clearly have been brought outside that new hypothetical time-limit (paragraph 32).

Finally, the same is tme in respect of the Commission's letters of 19 October 1993 in response to the complaints lodged by the applicants in May 1993. The fact that an institution has dealt with the substance of a complaint which was submitted out of time and was thus inadmissible cannot have the effect of derogating from the system of mandatory time-limits and thus reestablishing a right of action. In no circumstances could such a complaint reinstate the applicants' right of action, which has already lapsed, against the decisions rejecting their complaints of October-November 1992, which have become definitive (paragraph 33).

See: Carrer and Others v Commission, paras 20 and 21

Costs

Under Article 87(3) of the Rules of Procedure, the Court of First Instance may order even the successful party to pay the costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur. In its letters of 20 April 1993, sent before the expiry of the time-limit for challenging the implicit decisions rejecting the requests which the Commission should have treated as complaints, that institution failed to take a decision on the applicants' main claim. Those letters were likely to mislead the applicants. The Commission must therefore be ordered to pay all the costs (paragraphs 35 to 38).

Operative part:

The application is dismissed as inadmissible.

The defendant is ordered to pay all the costs.