ORDER OF THE GENERAL COURT (Eighth Chamber, Extended Composition)

31 July 2020 ( *1 )

(Action for annulment and for damages — Civil service — Members of the contract staff — Refusal to employ on the ground that the candidate is unfit to perform duties — Time limit for bringing proceedings — Public policy — Delay — Calculation of the time limit — Determination of the date from which the person concerned could have become aware of the content of the decision — Manifest inadmissibility)

In Case T‑272/19,

TO, residing in Brussels (Belgium), represented by É. Boigelot, lawyer,

applicant,

v

European External Action Service (EEAS), represented by S. Marquardt and R. Spac, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU seeking, on the one hand, annulment, first, of the EEAS decision of 15 June 2018 informing the applicant that she did not fulfil all of the conditions of employment laid down in Article 82 of the Conditions of Employment of Other Servants of the European Union and that she could not be recruited as a member of the contract staff of the EEAS and, second, of the decision of the EEAS of 14 January 2019 rejecting her complaint of 14 September 2018, and, on the other hand, compensation for the damage which the applicant claims to have suffered,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

composed of J. Svenningsen, President, R. Barents, C. Mac Eochaidh, T. Pynnä (Rapporteur) and J. Laitenberger, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 By decision of 15 June 2018, the authority empowered to conclude contracts of employment (‘AECE’) of the European External Action Service (EEAS) informed the applicant, a candidate for a contract agent post within the EEAS, that she did not fulfil all of the conditions of employment laid down in Article 82 of the Conditions of Employment of Other Servants of the European Union (‘CEOS’) and that she could not be recruited as a contract agent. The EEAS sent this decision to the applicant at her personal email address on 15 June 2018.

2 On 14 September 2018, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against that decision. That complaint was lodged by electronic means using the business email address of the applicant’s legal counsel, with a copy sent to the applicant’s personal email address.

3 By decision of 14 January 2019, the AECE of the EEAS rejected the applicant’s complaint. The EEAS sent that decision to the applicant and to her counsel, first via the Ares program, a document management system that allows emails to be generated and sent to addressees who are not EEAS staff members, on 14 January 2019 at 17.46, and then by email on the same day at 17.52 and at 18.05.

4 At 8.40 on 15 January 2019, the applicant sent an email to her counsel concerning that decision, from the same email address used by the EEAS to send that decision and the decision of 15 June 2018.

5 On several occasions, the EEAS asked the applicant, by email, to confirm that she had received that decision on 14 January 2019 at 17.52 and at 18.05 and then on 22 January 2019. Those requests received no reply.

Procedure and forms of order sought

6 By application lodged at the Court Registry on 25 April 2019, the applicant brought the present action.

7 On 16 September 2019, the EEAS submitted its defence.

8 By decision of the President of the General Court of 17 October 2019, the present case was assigned to a new Judge-Rapporteur, sitting in the Eighth Chamber.

9 On 5 November 2019, the applicant lodged her reply at the Court Registry.

10 On 24 January 2020, the EEAS submitted its rejoinder.

11 On 14 February 2020, the Court (Eighth Chamber), on a proposal by the Judge-Rapporteur and in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, put written questions to the parties and invited them to reply in writing.

12 On 2 March 2020, the parties submitted their replies to the Court’s questions.

13 On 21 April 2020, on a proposal from the President of the Court, the Court decided to refer the case to a chamber sitting in extended composition pursuant to Article 28 of the Rules of Procedure.

14 By document lodged at the Court Registry on 28 April 2020, the applicant requested that a hearing be held. The EEAS did not express a view within the prescribed period as to whether there should be a hearing.

15 The applicant claims that the Court should: – annul the decision of 15 June 2018 by which the AECE of the EEAS informed her that she did not fulfil all of the conditions of employment laid down in Article 82 of the CEOS and that she could not be recruited as a member of the contract staff of the EEAS; – annul the decision of 14 January 2019 by which the EEAS rejected her complaint lodged on 14 September 2018 (‘the contested decision’); – order the EEAS to pay her compensation for various heads of loss; – order the EEAS to pay the costs.

16 The EEAS contends that the Court should: – dismiss the action as in part inadmissible and in part unfounded; – order the applicant to pay the costs.

17 In the rejoinder, the EEAS further submits that the action is inadmissible as the application was lodged out of time.

Law

18 Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In the present case, as the Court considers that it has sufficient information in the file before it, it has decided to give a decision on the action without taking further steps in the proceedings, even though the applicant has submitted a request for a hearing (see, to that effect, orders of 24 September 2008, Van Neyghem v Commission, T‑105/08 P, EU:T:2008:402, paragraph 21, and of 2 December 2010, Apostolov v Commission, T‑73/10 P, not published, EU:T:2010:496, paragraph 11).

19 In the rejoinder, without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, the EEAS submits for the first time that the contested decision was notified to the applicant on 14 January 2019 and that the three-month period for bringing an appeal under Article 91(3) of the Staff Regulations, increased by the 10-day extension on account of distance, had therefore begun to run on 14 January 2019 and ended on 24 April 2019. The application, which was lodged on 25 April 2019, is therefore, the EEAS submits, inadmissible as it was lodged out of time.

20 It must be borne in mind that, under Article 91(3) of the Staff Regulations, an appeal before the Court must be filed within three months, which period is to begin on the date of notification of the decision taken in response to the complaint. Under Article 60 of the Rules of Procedure, ‘the procedural time limits shall be extended on account of distance by a single period of 10 days’.

21 In the first place, the applicant’s argument that the plea of inadmissibility relied on by the EEAS in the rejoinder is a new plea and is therefore inadmissible under Article 84 of the Rules of Procedure must be rejected.

22 According to settled case-law, the periods for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with. Those periods meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (judgments of 7 July 1971, Müllers v ESC, 79/70, EU:C:1971:79, paragraph 18, and of 30 January 2013, Wahlström v Frontex, F‑87/11, EU:F:2013:10, paragraph 32; see, also, order of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 36 and the case-law cited).

23 In the second place, it must be noted that, in the application, the applicant does not deny that the contested decision was received in her inbox and in that of her counsel on 14 January 2019. Thus, in the application, she states that ‘on 14 January 2019, the Appointing Authority of the EEAS [notified] the applicant and her counsel of its decision on the complaint lodged on 14 September 2018’. In her submissions in response to the Court’s questions, the applicant argues that ‘this is merely information as to the date indicated on the decision itself …, and not as to when it was received and when she became aware of it’. However, in response to the Court’s question inviting her to ‘specify on what date and by what means she received the [contested decision]’, the applicant states that that decision ‘was sent to her by email … on 14 January 2019 at 18.04.43’.

24 Furthermore, the EEAS maintains that the contested decision was validly notified to the applicant on 14 January 2019, with the result that the period for bringing proceedings expired on 24 April 2019, whereas the applicant submits in her observations in response to the Court’s questions that that period expired on 25 April 2019, the day on which the application was lodged. According to the applicant, ‘if [Article 58(1)(a) of the Rules of Procedure] is to take effect and be given its full meaning, it must be inferred from that provision that the action is deemed [to be] carried out on the day following that on which it is addressed to the official for the purpose of calculating the time limit for bringing proceedings’ and, ‘in the present case, the first relevant day is, therefore, 15 January 2019, not 14 January 2019’.

25 The applicant’s observations in response to the questions put by the Court make it clear that her calculation of the time limit for bringing proceedings is based on a misinterpretation of Article 58(1) of the Rules of Procedure.

26 Article 58(1)(a) of the Rules of Procedure, on the one hand, provides that ‘where a time limit expressed in days, weeks, months … is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the time limit in question’. Article 58(1)(b) of the Rules of Procedure, on the other hand, provides that ‘a time limit expressed in weeks, months … shall end with the expiry of whichever day in the last week, month … is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place’.

27 It is apparent from the case-law, established by the Court of Justice in the judgment of 15 January 1987, Misset v Council (152/85, EU:C:1987:10, paragraphs 7 and 8), that, contrary to what the applicant claims, there is no contradiction between Article 58(1)(a) and Article 58(1)(b) of the Rules of Procedure. It is true that time does not begin to run until the end of the day of notification. Nevertheless, where the time limit for bringing proceedings is expressed in months, that period expires at the end of the day which, in the month indicated by the time limit, bears the same number as the day of notification (order of 12 May 2009, CHEMK and KF v Council and Commission, T‑190/08, not published, EU:T:2009:154, paragraph 21).

28 In the present case, if the contested decision was validly notified to the applicant on 14 January 2019, the three-month period for bringing proceedings would have begun on 15 January at 00.00 and ended on 14 April at midnight. Increased by the 10-day extension on account of distance, the period for commencing proceedings would therefore have expired on 24 April at midnight. As a result, the application, which was filed on 25 April 2019, would be out of time.

29 In the third place, it is therefore appropriate to examine whether it is established that the contested decision was validly notified to the applicant on 14 January 2019.

30 In that regard, the applicant claims that, even if she made an error in her calculation of the time limit for bringing proceedings, she was not validly notified on 14 January 2019. According to the applicant, it is the moment when she became aware of the contested decision sent by email that should be decisive for the date of notification. She claims that she ‘probably’ became aware of the email at issue only on the morning of 15 January 2019.

31 It should be recalled, in addition to the case-law cited in paragraph 22 above, that it is for the party claiming that the time limit has been exceeded, in this case the EEAS, to prove the date on which the period began to run (judgment of 5 June 1980, Belfiore v Commission, 108/79, EU:C:1980:146, paragraph 7; see also judgment of 30 January 2013, Wahlström v Frontex, F‑87/11, EU:F:2013:10, paragraph 33 and the case-law cited). If the latter has placed itself in a position in which it cannot adduce conclusive evidence on this point, the benefit of the doubt concerning when the period for bringing proceedings began to run must be given to the applicant (see, to that effect, judgments of 5 June 1980, Belfiore v Commission, 108/79, EU:C:1980:146, paragraph 7, and of 9 July 2020, Commission v HM, C‑70/19 P, not published, EU:C:2020:544, paragraph 123).

32 However, various circumstances may provide proof that the addressee of a decision was able to gain effective knowledge of that decision, in particular where the institution concerned relies not on mere circumstantial evidence, but on direct evidence, including such evidence provided by the person concerned, indicating that, as addressee, he or she received an email via his or her email address and that it is possible, in all likelihood, that he or she opened it and thus duly became aware of that decision (see, to that effect, order of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 44). According to case-law, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see judgment of 17 November 2016, Fedtke v EESC, T‑157/16 P, not published, EU:T:2016:666, paragraph 39 and the case-law cited).

33 In the light of the foregoing, the onus is therefore on the Court to ascertain whether it is established that the period for bringing proceedings had not expired at the time when the action was brought in the present case, namely on 25 April 2019, which would nevertheless be the case if the contested decision had been validly notified to the applicant on 14 January 2019.

34 In that regard, notification by registered letter with postal acknowledgement of receipt, as provided for in the third paragraph of Article 26 of the Staff Regulations, constitutes a valid method of notification. In the present case, the EEAS chose not to use this method. However, that method is not the only one that can be used to notify administrative decisions (see, to that effect, orders of 16 December 2010, AG v Parliament, F‑25/10, EU:F:2010:171, paragraph 38, and of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 42).

35 In particular, where the administration accepts the lodging of a complaint under Article 90(2) of the Staff Regulations by electronic means — in this case from the business email address of the complainant’s counsel, with a copy being sent to the complainant’s personal email address — it is reasonable, given that that method of communication was chosen by the person concerned herself, that the administration may, in application of the principle of congruent forms, notify its response to the person concerned also by means of an email sent from the AECE’s email address or from its email management program — in this case via the Ares program — to the email addresses of the complainant and her counsel (see, to that effect, order of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 43).

36 Moreover, it follows from the principle of representation that, where a complaint is lodged by a lawyer on behalf of someone whom he or she represents, notification of the response to that lawyer is tantamount to notification to that person (see, to that effect and by analogy, judgment of 6 May 2009, Sergio and Others v Commission, F‑137/07, EU:F:2009:46, paragraph 125).

37 However, in order for a decision to be validly notified for the purposes of the provisions of the Staff Regulations, it is necessary not only that it has been communicated to the addressee, but also that the addressee has been given the opportunity to gain effective knowledge of its contents (judgment of 15 June 1976, Jänsch v Commission, 5/76, EU:C:1976:92, paragraph 10; see, also, judgment of 30 January 2013, Wahlström v Frontex, F‑87/11, EU:F:2013:10, paragraph 34 and the case-law cited).

38 Sending an email does not in itself guarantee that it is actually received by the person to whom it is addressed. An email may not reach him or her for technical reasons. Furthermore, even where an email actually reaches the person to whom it is addressed, it may not be received on the day on which it was sent (judgment of 8 October 2008, Sogelma v EAR, T‑411/06, EU:T:2008:419, paragraph 77; see also, to that effect, judgments of 28 November 2013, Gaumina v EIGE, T‑424/12, not published, EU:T:2013:617, paragraph 40, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 51 (not published)).

39 In the present case, the EEAS has established that it sent the contested decision to the applicant and to her counsel on 14 January 2019, both by email and via the Ares program.

40 It is also apparent from the evidence provided by the EEAS that, when sending the contested decision, its services used the same email address for the applicant as had previously been used to send the decision of 15 June 2018, which is the subject of the applicant’s complaint, and that they did not make any error when entering that address. Furthermore, the EEAS used the same email address for the applicant’s counsel as that from which that counsel had, on behalf of the applicant, lodged the complaint of 14 September 2018. It follows that the email addresses used by the EEAS to send the contested decision were valid addresses.

41 As already mentioned in paragraph 23 above, the applicant does not deny that, in the present case, the contested decision arrived in her inbox and in that of her counsel instantly on 14 January 2019 and thus coincided with the moment at which it was sent. Thus, in response to the Court’s question inviting her to ‘specify on what date and by what means she received the [contested decision]’, the applicant states that that decision ‘was sent to her by email … at 18.04.43 on 14 January 2019’.

42 It is clear from the case-law referred to in paragraph 37 above that, in order for a decision to be validly notified for the purposes of the Staff Regulations, it is necessary not that the addressee should actually gain effective knowledge of its content, but that he or she should be given the opportunity to gain effective knowledge of it. In that regard, various circumstances may provide proof that the addressee of a decision has not only received it, but has also been able to gain effective knowledge of it (order of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 44).

43 Thus, in the order of 14 January 2014, Lebedef v Commission (F‑60/13, EU:F:2014:6, paragraphs 45 to 48), the Civil Service Tribunal noted that it had been established that the applicant had been in a position to check his business inbox, that he had received the email at issue and that he was given the opportunity to open it and to gain effective knowledge of it, even if he had chosen not to open it at that time.

44 In the present case, it should be noted that the decision of the AECE of the EEAS of 15 June 2018, which is the subject of the applicant’s complaint, had also been sent to the applicant by email to the same email address. It was also that email address which the applicant used to send an email to her counsel at 8.40 on 15 January 2019 in which she states that she has become aware of the contested decision.

45 The documents produced by the parties before the Court therefore show not only that the applicant does not allege that there was a technical obstacle preventing her from receiving or consulting the emails from the EEAS at issue, but also that she had the opportunity to check her email inbox and that, before and after the communication of the contested decision, she had used that inbox in the course of her exchanges with the EEAS and with her counsel.

46 It follows that the EEAS has provided sufficient factual evidence to show that the contested decision was communicated to the applicant and to her counsel on 14 January 2019 and that the applicant was given the opportunity to become aware of the content of that decision from that date.

47 More specifically, the applicant does not deny that she or her counsel had the opportunity to become aware of the contested decision on 14 January 2019. On the contrary, she submits that she cannot be criticised for not consulting her email inbox during the evening of 14 January 2019, and that her counsel cannot be criticised for not responding to that email on that evening, thus acknowledging that it would have been possible to do so.

48 By contrast, she argues that it was ‘at 8.40 on the morning of 15 January’ that she ‘probably [became] aware (of a part, namely the last page of the document) of the email that [had been] sent to her private email inbox at the end of the previous day’.

49 However, as was stated in paragraph 42 above, the fact that the applicant submits that she probably actually became aware of the email at issue only on the morning of 15 January 2019 is not decisive for the purpose of determining when the period for bringing proceedings started. It is apparent from the applicant’s reply that she relied on a misinterpretation of case-law, according to which the date on which the addressee actually becomes aware of the decision is decisive for the purpose of establishing the date of notification. However, as has been pointed out in paragraph 42 above, in order for a decision to be duly notified for the purposes of the Staff Regulations, the addressee need not actually become aware of its content, but rather must have been given the opportunity to gain effective knowledge of it.

50 If the applicant’s line of argument were to be accepted, it would in effect be an acknowledgement that, in the case where a decision is sent without a request for acknowledgement of receipt, the addressee has the right to choose on what date he or she was given the opportunity to gain effective knowledge of the content of that decision (see, to that effect, judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 63). However, the principle of legal certainty precludes time periods for bringing proceedings from being triggered at the discretion of one of the parties (order of 16 December 2010, AG v Parliament, F‑25/10, EU:F:2010:171, paragraph 51).

51 In so far as the applicant alleges that she or her counsel had, at the time of the alleged notification, namely at 18.05 on 14 January 2019, no obligation to check their respective inboxes, it must be noted that there is no generally applicable time slot within which a decision can be validly notified and outside of which a notification is invalid.

52 First, according to the case-law cited in paragraph 37 above, the defining feature of notification of a decision is that the addressee is given the opportunity to gain effective knowledge of the content of the decision that has been sent to him or her. According to that definition, it is therefore irrelevant whether such notification takes place in the morning, at midday, in the evening or even at night. If the addressee is given the opportunity to gain effective knowledge of the content of a decision that is sent to him or her late in the evening, the decision is notified to him or her at that moment. If the addressee is given the opportunity to gain effective knowledge of the content of the decision only on the following day or later, it is only at that moment that the decision is notified to him or her.

53 Second, the Court observes that it would be impossible to establish, with the requisite legal certainty, time slots during which a notification would be considered valid and to exclude other slots. The availability of potential addressees and their ability to connect may vary considerably. In that regard, it should be pointed out that the legislature has chosen to express the periods for bringing proceedings in days, weeks and months and not in hours, which shows that the legislature does not consider it important that decisions be notified within a specific time slot.

54 Third, it would also be inconsistent to establish such a time slot for notification by email, while an addressee can be notified by registered letter, in principle, at any time of the day. The delivery times for registered mail depends, above all, on postal arrangements. In order to maximise the chances of actually being able to deliver registered mail, it is not unusual, at least nowadays, for deliveries to be made early in the morning or late in the afternoon. The question whether or not the time is convenient is not decisive in determining whether the notification is valid, as long as the addressee receives the document to be notified.

55 In that regard, it follows from Article 58(1)(b) of the Rules of Procedure that, in the case of measures which must be notified, the period for bringing proceedings begins to run from the end of the day of notification, irrespective of the time at which notification of the contested measure took place (see, to that effect and by analogy, judgment of 15 January 1987, Misset v Council, 152/85, EU:C:1987:10, paragraph 7, and order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 30).

56 Lastly, and given that it is established in the present case that the contested decision was received (see paragraphs 23 and 40 et seq. above), only obstacles arising from the situation of the applicant and her counsel which would have prevented them from becoming aware of the contested decision on 14 January 2019 after having received it could call into question the conclusion that they were also given the opportunity to gain effective knowledge of that decision on that date. Having regard to the factual evidence provided by the EEAS concerning the notification of the contested decision to the applicant and to her counsel by email and via the Ares program, and the fact that it has been established that the contested decision was received in the present case, the applicant should therefore have provided reasons as to why neither she nor her counsel were given the opportunity to gain effective knowledge of the contested decision received on 14 January 2019 (see, to that effect and by analogy, judgment of 17 November 2016, Fedtke v EESC, T‑157/16 P, not published, EU:T:2016:666, paragraph 41).

57 However, the applicant has provided no details in that regard, notwithstanding the questions put by the Court. On the contrary, she has merely stated that she ‘probably’ became aware of the emails from the EEAS only on 15 January 2019 and that she took the view that she was not obliged to check her inbox before then. Furthermore, she has not denied that she was, at that time, represented by counsel, who had received the email from the EEAS on the same date, namely 14 January 2019.

58 Consequently, and bearing in mind what has been recalled in paragraphs 31 and 32 above, the Court concludes that, in view of the evidence provided by the EEAS and the absence of any evidence provided by the applicant showing that she and her counsel were prevented from gaining effective knowledge of the emails received on 14 January 2019, the burden of proof has been met by the EEAS. It has therefore been established that the applicant not only received the contested decision on 14 January 2019, but that she was also given the opportunity to gain effective knowledge of it on that date.

59 It must be concluded that the contested decision was validly notified, within the meaning of the case-law referred to in paragraph 37 above, to the applicant on 14 January 2019.

60 In those circumstances, in application of the method for calculating the time limit explained in paragraphs 26 to 28 above, the application, lodged on 25 April 2019, is out of time.

61 It follows that the action must be dismissed as being manifestly inadmissible.

Costs

62 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the EEAS.

On those grounds, THE GENERAL COURT (Eighth Chamber, Extended Composition) hereby orders:

1. The action is dismissed as being manifestly inadmissible.

2. TO shall pay the costs.

Luxembourg, 31 July 2020. E. Coulon Registrar J. Svenningsen President

( *1 ) Language of the case: French.