ORDER OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 July 2016

Serena Trampuz, as heir of Mario Alberto de Pretis Cagnodo

v

European Commission

‛Civil service — Social security — Sickness insurance scheme — Recovery of advance payment of medical expenses — Enforcement of a judgment of the Tribunal annulling a measure — Plea of inadmissibility — Failure to satisfy the requirements of the pre-litigation procedure — Act adversely affecting an official — Pension statement — Requirement to submit a complaint — Out of time — Article 83 of the Rules of Procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Mario Alberto de Pretis Cagnodo, who died on 19 May 2016, leaving as his sole heir Ms Serena Trampuz, his spouse, who takes on the claims made by him, seeks in essence from the Tribunal a ‘declaration that, in breach of the judgment [of the Tribunal of 16 May 2013 in de Pretis Cagnodo and Trampuz de Pretis Cagnodo v Commission (F‑104/10, EU:F:2013:64)) the European Commission unlawfully withheld from [his] pension the sum of EUR 14207.60’.

Held:

The action is dismissed as inadmissible. Ms Serena Trampuz is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Actions brought by officials — Prior administrative complaint — Time limits — Point from which time starts to run — Action against the reduction of an entitlement made monthly and reflected in all the pension statements — Time-limit set running by receipt of the first pension statement

Actions brought by officials — Act adversely affecting an official — Concept — Salary statement — Inclusion commonly accepted for the purposes of exercising rights of action — Pension statement constituting a measure for the settlement of a note from the administration claiming the payment of an amount — Not included

Actions brought by officials — Act adversely affecting an official — Concept — Note from the administration giving the addressee formal notice to make a payment within a particular time limit — Included

Only measures which produce binding legal effects such as to affect the interests of an applicant directly and immediately by bringing about a distinct change in his legal position, and which definitively determine the position of the institution may be the subject of an action for annulment. This is the case of a note by which the institution gives notice individually to an official to make a payment to it within a particular time limit, indicating the procedure for making that payment and stating that the relevant amount will automatically be deducted from his pension unless payment is made within the stated time limit and that the official may ask for the payment to be made to the settlements office in instalments. Such a note produces binding legal effects such as to affect the interests of the official concerned directly and immediately by bringing about a distinct change in his legal position, and definitively determines the position of the institution. (see paras 30, 32-33) See: Judgment of 14 February 1989 in Bossi v Commission, 346/87, EU:C:1989:59, para. 23 Judgment of 18 September 2008 in Angé Serrano and Others v Parliament, T‑47/05, EU:T:2008:384, para. 61 Judgment of 20 May 2010 in Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, para. 46 Judgment of 11 April 2016 in Zink v Commission, F‑77/15, EU:F:2016:74, para. 33

A letter whereby an official clearly seeks to achieve an amicable settlement of his claims or a letter which clearly manifests the applicant’s intention to challenge the decision which adversely affects him constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations, even if he does not expressly request the withdrawal of the decision in question. In that respect, the content of the act takes precedence over its form. An administrative complaint lodged by an official does not need to take any particular form. It is sufficient that it should clearly and precisely manifest its author’s intention to challenge a decision taken concerning him. In that regard, a mere request for clarification cannot be classified as a complaint within the meaning of Article 90(2) of the Staff Regulations. (see paras 35-36) See: Judgments of 31 May 1988 in Rousseau v Court of Auditors, 167/86, EU:C:1988:266, para. 8, and of 17 July 1988, Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, para. 13 Judgment of 16 February 2005 in Reggimenti v Parliament, T‑354/03, EU:T:2005:54, para. 44 Judgment of 13 March 2013 in Mendes v Commission, F‑125/11, EU:F:2013:35, paras 33 and 34 and the case law cited

Salary statements may constitute acts adversely affecting an official, against which a complaint and, if necessary, an appeal may be brought. That is so where a decision relates purely to remuneration and is likely, by its nature, to be reflected in that statement. In that case, notification of the monthly salary statement has the effect of setting time running for the purpose of the time limit for lodging a complaint and an appeal, referred to in Article 90(2) and Article 91(3), respectively, of the Staff Regulations, against an administrative decision, where the existence and the scope of such a decision are clearly apparent for the first time from that statement. However, pension statements, which are no more than measures for the settlement of a note from the administration requesting the party concerned to effect payment of a certain amount within a specified time and according to the prescribed procedure cannot be considered to be acts adversely affecting an official having the effect of setting time running for the purpose of the time limit for lodging a complaint referred to in Article 90(2) of the Staff Regulations. (see paras 39-41) See: Judgment of 19 January 1984 in Andersen and Others v Parliament, 262/80, EU:C:1984:18, para. 4 Judgments of 27 October 1994 in Benzler v Commission, T‑536/93, EU:T:1994:264, para. 15, and of 9 January 2007 in Van Neyghem v Committee of the Regions, T‑288/04, EU:T:2007:1, paras 39 and 40 Judgment of 26 June 2013 in Buschak v Commission, F‑56/12, EU:F:2013:96, para. 19; orders of 20 March 2014 in Michel v Commission, F‑44/13, EU:F:2014:40, paras 49 and 50; of 23 April 2015 in Bensai v Commission, F‑131/14, EU:F:2015:34, para. 35; and judgment of 11 April 2016 in Zink v Commission, F‑77/15, EU:F:2016:74, para. 34