JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 July 1997

Case T-156/95

Diego Echauz Brigaldi and Others

v

Commission of the European Communities

‛Officials — Commission decisions refusing special leave for elections and travelling time — Admissibility’

Full text in Spanish II-509

Application for:

first, annulment of the Commission's decisions of 2 May 1995 refusing the applicants special leave for elections and travelling time in order to enable them to exercise their right to vote in Spain, where they were still officially resident and had gone to vote in the European Parliament elections in June 1994, and secondly, an order that the Commission allow each official the travelling time used by each of them to travel to Spain to vote, or pay them an amount corresponding to the days used.

Decision:

Application dismissed.

Abstract of the Judgment

Artide 57 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) provides that an official may, exceptionally, on application, be granted special leave. Annex V to the Staff Regulations lays down the detailed rules for such leave. Opinion No 201/92 of the Board of the Heads of Administration, implemented by an internal Commission directive of 24 January 1992 on special leave and travelling time for elections, provides that special leave and travelling time are not to be granted if voting by post or voting at the diplomatic or consular representation is possible without compromising the right of officials and other servants to exercise their entitlement to vote in other elections. The Kingdom of Spain makes provision for citizens living abroad to register with their consulate and subsequently vote by post. The register kept at consulates for that puipose is the Censo Electoral de Residentes Ausentes (CERA).

The applicants, who are all officials of the Commission of Spanish nationality, have, since their recruitment, remained officially resident in Spain. They applied for special leave and travelling time in order to travel to Spain to vote in the elections to the European Parliament on 12 June 1994. Since their recruitment as officials of the Commission they had availed themselves of that possibility for previous elections in Spain. At the end of September 1994 the applicants learned that the days which they had used to travel to Spain to vote had not been taken into account as special leave for an election and travelling time.

Some of the applicants (the officials on List A) lodged complaints under Article 90(2) of the Staff Regulations between 15 and 19 December 1994.

They received a negative reply in writing dated 8 May 1995 informing them of the decision adopted by the Commission on 2 May in respect of each of them, which was notified to them on 10 May at the earliest.

Other applicants (the officials on List B) lodged their complaints under Article 90(2) of the Staff Regulations on 14 or 15 December 1994. Since they received no reply from the Commission they claim in their application, which was lodged at the Registry of the Court of First Instance on 9 August 1995, that their complaints had been impliedly rejected.

However, in their reply, the applicants stated that all the officials on List B had belatedly received an express negative response after the present application had been lodged.

Admissibility

It is common ground that the officials on List B lodged their complaint on 14 or 15 December 1994. In accordance with Article 90(2) of the Staff Regulations, the failure of the Commission to give an express reply within four months from the date on which the complaint was lodged is to be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged. Under Article 91(3) of the Staff Regulations, an appeal against such an implied decision rejecting a complaint must be filed within three months from the date of that decision. The appeal was not, however, filed until 9 August 1995, that is to say after the period prescribed in the Staff Regulations and the additional days' extension on account of distance. The applicants refer only to reasons of procedural economy to justify the late filing of their application. The time-limits laid down in Articles 90 and 91 of the Staff Regulations are, however, a matter of public policy and, since they were introduced in order to ensure legal clarity and certainty, do not constitute a plea at the discretion of the parties or the Court (paragraph 19).

See: 191/84 Barcella and Others v Commission [1986] ECR 1541, para. 12; 302/85 Pressler-Hoeftv Court of Auditors [1987] ECR 513, para. 5; T-55/92 Knijffv Court of Auditors [1993] ECR II-823, para. 27; T-495/93 Carrer and Others v Court of Justice [1994] ECRSC II-651, para. 20

The Court of First Instance cannot therefore find the application admissible in so far it has been lodged by the officials on List B, since it is not disputed that as far as those officials were concerned the application was lodged after the prescribed date (paragraph 20).

Furthermore, the fact that the officials on List B received an express decision rejecting their complaint after the application had been lodged cannot justify any extension of the period prescribed for bringing an action. Article 91(3) of the Staff Regulations makes it quite clear that an express decision rejecting a complaint which is taken after an implied decision to that effect does not cause the three-month period prescribed for bringing an action to start to run afresh unless it is notified within that period. In this case the express decisions rejecting the complaint reached the officials on List B only after the expiry of the prescribed period and did not therefore cause it to start to run afresh (paragraph 21).

It follows from the foregoing that in so far as it has been lodged by the officials on List B the application must be held inadmissible (paragraph 22).

The express decision rejecting the complaint may well constitute an actionable measure, since an official's action formally directed against the express or implied rejection of a prior administrative complaint lodged under Article 90(2) of the Staff Regulations has the effect of bringing before the Court the act adversely affecting the official against which a complaint was submitted (paragraph 23).

See: T-36/94 Capitaniov Commissioni 1996] ECRSC II-1279. para. 33. and the judgments cited therein

The applicants' claim that the Court should order the Commission to grant them the travelling time that they used or the financial equivalent is inadmissible, since the Court cannot, without encroaching on the prerogatives of the institutions, issue directions to them or assume the role assigned to them (paragraph 24).

See: T-1/90 Pérez-Minguez Casariego v Commission [1991] ECR II-143. para. 91; T-156/89 Valverde Mortit v Court of Justice [1991] ECR II-407, para. 150

Only the claim seeking the annulment of the Commission decisions of 2 May 1995 refusing the officials on List A special leave for elections and travelling time is admissible (paragraph 25).

Substance

The applicants put forward four pleas in law in support of the forms of order sought, namely manifest error in assessing issues of fact and law, breach of the principle of nondiscrimination, failure to comply with the ‘concertation’ procedure amending the arrangements for special leave for elections and breach of the principle of the protection of legitimate expectations (paragraph 26).

First plea in law: manifest error in assessing issues of fact and law

The applicants rely on Article 12(b) of the Protocol on the Privileges and Immunities of the European Communities annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities of 8 April 1965, which provides that, in the territory of each Member State and whatever their nationality, officials and other servants of the Communities, together with their spouses and dependent members of their families, shall not be subject to immigration restrictions or to formalities for the registration of aliens. That provision enables Community officials to maintain their official residence in their country of origin. The applicants should not, therefore, be obliged to establish their residence in Belgium in order to obtain the right to vote by post (paragraph 28).

Since, under Article 20 of the Staff Regulations, officials are to reside at the place where they are employed or at no great distance therefrom, Article 12(b) of the Protocol provides that they are not to be subject to immigration restrictions or to formalities for the registration of aliens, in order to facilitate their installation in any Member State. Article 12(b) therefore essentially concerns relations between officials and the State in which they are employed. It does not, however, govern the relations between officials and their State of origin (paragraph 35).

Second plea in law: breach of the principle of non-discrimination

Discrimination consists in treating comparable situations differently, unless such differentiation is objectively justified (paragraph 47).

See: 817/79 Buyland Others v Commission [1982] ECR 245, para. 29; 198/81 to 202/81 Micheli and Outers v Commission [1982] ECR 4145, para. 6; T-6/92 and T-52/92 Reinar: v Commission (1993] ECR II-1047, para. 103

Whilst it is true that certain other Community institutions allow special leave for elections, in the absence of any legal obligation laid down by the Staff Regulations it is granted voluntarily. Accordingly, at least in this case, the Commission is under no obligation to ensure that its officials and other servants receive the same treatment as officials of the Council and the Economic and Social Committee. The fact that officials from other institutions have been allowed to benefit from such leave does not therefore constitute a breach of the principle of nondiscrimination (paragraph 48).

See: C-193/87 and C-194/87 Maurissen and European Public Service Union v Conn of Auditors [1990] ECR I-95, paras 26 and 27

The Commission has not treated comparable situations differently without objective justification. The applicants have not produced evidence to support their assertion that the Commission's decision constitutes discrimination on the ground of nationality, since the refusal they met with was not attributable to their nationality but to the fact that they did not fulfil the conditions required by Opinion No 201/92 in order to be granted special leave for elections with travelling time (paragraph 49).

Third plea in law: failure to comply with the ‘concertation’ procedure for amending the arrangements for special leave for elections

The phrase ‘the general provisions for giving effect’ [to these Staff Regulations] in Article 110 of the Staff Regulations refers, first, to the implementing measures expressly provided for by certain special provisions of the Staff Regulations. In the absence of any express provision, the obligation to adopt implementing measures subject to the formal requirements of that article can be recognized only in exceptional circumstances, that is, when the provisions of the Staff Regulations are so unclear and imprecise that any application of them must be arbitrary. Article 57 of the Staff Regulations and Article 6 of Annex V thereto do not constitute such special provisions (paragraph 53).

See: 110/63 Willame v Commission [1965] ECR 649

Fourth plea in law: breach of the principle of protection of legitimate expectations

An official may only rely on breach of the principle of protection of legitimate expectations where the administration's conduct has led him to entertain reasonable expectations. The fact that special leave and travelling time might have been granted to applicants in the past does not constitute conduct on the part of the administration of such a kind as to give rise to such expectations (paragraph 57).

See: T-20/91 Holtbecker v Commission [1992] ECR II-2599, para. 53; T-45/91 McAvoy v Parliament [1993] ECR II-83, para. 56

Operative part:

The application is dismissed.