ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

14 October 1998

Case T-224/97

Isabel Martinez del Peral Cagigal

v

Commission of the European Communities

‛Officials — Judgment of the Court of First Instance — Application for reclassification in grade — Objection of inadmissibility — New material fact — Admissibility’

Full text in Spanish II-1741

Application for:

annulment, first, of the Commission decision of 24 October 1996 rejecting the applicant's application for reclassification and, second, the Commission decision of 29 April 1997 rejecting the complaint against the decision of 24 October 1996.

Decision:

Application dismissed.

Abstract of the Order

On 9 November 1993 the applicant was appointed as a probationary official and classified in Grade A 7, Step 1. On 26 November 1993 the appointing authority classified her in Grade A 7, Step 3, with effect from 16 October 1993. On 5 October 1995 the Court of First Instance delivered its judgment in Case T-17/95 Alexopoulou v Commission [1995] ECRSC II-683. On 7 February 1996 the Commission amended its decision of 1 September 1983 on the criteria applicable to appointment in grade and classification in step on appointment, the first paragraph of Article 2 of which now reads as follows:

‘[The appointing authority] shall appoint a probationary official in the starting grade of the career bracket to which he is recruited. By way of exception to this principle, the appointing authority may decide to appoint a probationary official to the higher grade of the career bracket where the specific needs of the service require the recruitment of a person with particular qualifications or where the person recruited has exceptional qualifications.’

On 21 June 1996 the applicant applied for a review of her classification in grade on entering the service; her application was rejected on 24 October 1996 on the ground that it had been submitted more than three months after the original classification decision. On 23 January 1997 the applicant lodged a complaint against the decision of 24 October 1996. On 29 April 1997 the Commission rejected her complaint.

Admissibility

The applicant did not lodge a complaint against the classification decision of 26 November 1993 within the three moths prescribed in Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations). The classification therefore became final (paragraph 26).

An official cannot call in question the conditions of his initial recruitment after it has become final. Only the existence of material new facts may justify the submission of a request to reconsider a decision which was not challenged within the time-limits prescribed in Articles 90 and 91 of the Staff Regulations (paragraph 27).

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. 37

The purpose of the applicant's application of 21 June 1996 was to call in question the conditions of her initial recruitment, since it was a request to reconsider her classification in grade on the date on which she took up her post (paragraph 28).

The nature and legal impact of the decision of 7 February 1996 are not such that it constitutes a new fact which would permit the introduction of an application for reclassification after the time-limit for lodging a complaint has expired. It has neither the purpose nor the effect of calling in question administrative decisions which had become final before it entered into force (paragraphs 29 and 30).

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 Schots-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

Article 31(2) of the Staff Regulations, which confers a discretion on the appointing authority to appoint a newly recruited official, by way of exception, to the higher grade in his career bracket, is an exception to the general rules on classification. The decision of 7 February 1996 expresses a reservation which is consistent with that provision and may therefore be distinguished from the general decisions of 6 June 1973 and 1 September 1983 which established internal directives applicable to all officials. Accordingly, the case-law established by the Blomefield judgment, cited above, in the judgment of the Court of Justice in Case 231/84 Valentini v Commission [1985] ECR 3027 and in the order of the Court of Justice in Case 101/86 Mogensen v Commission [1987] ECR 825 is not capable of being applied to the present case (paragraph 32).

See: Blomefield v Commission, cited above, para. 20; Chauvin v Commission, cited above, para. 50

The use of the power conferred on the institutions by Article 31(2) of the Staff Regulations must be reconciled with observance of the requirements inherent in the concept of a career bracket resulting from Article 5 of the Staff Regulations and from Annex I thereto. A person can therefore be recruited to the higher grade in a career bracket only exceptionally, where the specific needs of the service require the recruitment of a particularly well-qualified person or where the person recruited has exceptional qualifications and seeks to take advantage of Article 31(2). As a general rule, when appointing a newly-recruited official, the appointing authority is not required to examine in each case whether Article 31(2) of the Staff Regulations should be applied or to state reasons for its decision not to make use of that provision (paragraph 33).

See: 146/84 De Santis v Court of Auditors [1985] ECR 1723; Alexopoulou v Commission, cited above, para. 21

The rejection of an application for reclassification submitted out of time does not therefore infringe Article 5(3) of the Staff Regulations (paragraph 34).

The duty to have regard to the interests of officials cannot lead the administration to construe a Community provision in a manner contrary to its actual wording. Article 31(2) of the Staff Regulations applies only exceptionally when an official is recruited. The Commission therefore did not fail to fulfil its obligations by refusing to reconsider the applicant's classification in grade (paragraph 35).

See: T-93/94 Becker v Court of Auditors [1996] ECR II-141, para. 36, with reference to the case-law; Chauvin v Commission, cited above, para. 52

Since the applicant has put forward no new facts capable of causing time to begin to run afresh for the purpose of Articles 90 and 91 of the Staff Regulations, the present action is inadmissible (paragraphs 37 and 38).

Operative part:

The application is dismissed as inadmissible.