ORDER OF THE GENERAL COURT (Appeal Chamber)

2 December 2010( )

(Appeal — Staff cases — Recruitment — Competition — Rejection of application — Period allowed for bringing proceedings — Delay — Appeal in part clearly inadmissible and in part clearly unfounded)

In Case T-73/10 P,

APPEAL brought against the order of the European Union Civil Service Tribunal (First Chamber) of 15 December 2009 in Case F-8/09 Apostolov v Commission ECR-SC I-A-1-509 and II-A-1-2763, seeking, inter alia, to have that order set aside,

Svetoslav Apostolov, residing in Saarwellingen (Germany), represented by D. Schneider-Addae-Mensah, lawyer,

appellant,

the other party to the proceedings being

European Commission, represented by J. Currall and B. Eggers, acting as Agents,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed, at the time of the deliberation, of M. Jaeger, President, J. Azizi and I. Wiszniewska-Białecka (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

1 By his appeal brought pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, Mr Svetoslav Apostolov, asks the General Court, inter alia, to set aside the order of the European Union Civil Service Tribunal (First Chamber) of 15 December 2009 in Case F-8/09 Apostolov v Commission [2009] ECR-SC I-A-1-509 and II-A-1-2763 (‘the contested order’), by which it dismissed as inadmissible, being out of time, the action seeking, inter alia, annulment of the decision contained in a letter of 21 October 2008 (‘the contested decision’), by which the European Personnel Selection Office (EPSO) dismissed his complaint against the decision of EPSO of 25 April 2008 informing him that the marks which he had obtained in the competence test held in connection with the selection procedure EPSO/CAST27/4/7 were not sufficient for him to be included in the database of eligible candidates.

The procedure at first instance and the contested order

2 By application lodged at the Civil Service Tribunal Registry on 9 July 2009, registered as F-8/09, Mr Apostolov sought, inter alia, annulment of the contested decision.

3 By separate document lodged at the Civil Service Tribunal Registry on 1 September 2009, the Commission raised an objection of inadmissibility to the action under Article 78 of the Rules of Procedure of the Civil Service Tribunal. The Commission submitted that the action was brought out of time and that the appellant had no interest in bringing proceedings. It contended that the action should be dismissed as inadmissible and that the appellant should be ordered to pay the costs.

4 On 6 October 2009, the appellant submitted his observations on the objection of inadmissibility raised by the Commission, requesting the Civil Service Tribunal to dismiss it.

5 By the contested order, the Civil Service Tribunal dismissed the action as inadmissible and ordered the appellant to pay the costs.

6 The Civil Service Tribunal gave the following reasons for that dismissal:

‘5 It is common ground that the applicant was informed of the contested decision on 29 October 2008.

6 Consequently, under both Article 91(3) of the Staff Regulations of Officials of the European Union, which provides that appeals against an act adversely affecting an official are to be filed within three months of the date of notification of that act, and Article 100(3) of the Rules of Procedure, which provides that that time is to be extended “on account of distance by a single period of 10 days”, the time available to the applicant for bringing an action against the contested decision expired on 9 February 2009.

7 By application lodged at the Registry of the Tribunal on 3 February 2009 …, the applicant applied for legal aid.

8 Thus, … that legal aid application was in fact made within “the period prescribed for the bringing of the action”, within the meaning of Article 97(4) of the Rules of Procedure, so that under that provision the time-limit was suspended until the date of notification of the order making a decision on that application.

9 However, the Tribunal gave a ruling on the legal aid application by order of 12 May 2009 in Case F-8/09 AJ Apostolov v Commission (not published in the ECR), by which the applicant was granted legal aid[. T]he applicant was notified of that order on 19 May 2009.

10 The time-limit for bringing an action therefore recommenced from that date and expired six days later, on 25 May 2009 …

11 However, the action was not brought until 9 July 2009 … and is therefore out of time …

12 None of the arguments put forward by the applicant … is capable of invalidating that conclusion.

13 In the first place, the applicant argues that he made an initial legal aid application on 23 January 2009, using the appropriate on-line application form, before he made the application which was registered by the Tribunal on 3 February 2009. He claimed that at the time that on-line form was sent, as there were points that were unclear in the documents published on the Tribunal’s website (Legal Aid Application Form, Rules of Procedure, Check-list: Application), he sent the Tribunal an email asking whether it was necessary for the original of his legal aid application to be lodged within 10 days of sending the on-line form. However, he did not receive clear notice from the Tribunal that he was required to lodge the original of his legal aid application within that time until 2 February 2009. As a result of the Tribunal’s delay in replying to his email he had a time-limit of only one day, expiring on 3 February 2009, for the original of his application to reach the Tribunal. Since it was impossible to comply with that time-limit, acting on the advice of the Registry of the Tribunal, he sent another on-line application form on 3 February 2009.

…

15 However, the applicant himself states that he did have access to the Rules of Procedure. It is clear from the provisions of Article 34 of those rules, which govern the lodging of pleadings with the Registry of the Tribunal, and in particular Article 34(6), that a pleading which is received at the Registry by any technical means of communication is taken into consideration for the purposes of compliance with the time-limits for taking steps in proceedings only where the signed original of the pleading is lodged no later than 10 days after the copy of the original was received. Moreover, the Guide for Legal Aid Applicants, which forms an integral part of the on-line legal aid application form, and which, like that form, is accessible on the Tribunal’s website, mentions the existence of that rule. The applicant therefore has no grounds for complaining about a lack of information in that regard or the lack of clarity of the applicable texts.

16 Furthermore, although it is true that the Registry of the Tribunal did not reply to the applicant’s email until 2 February 2009, this cannot be regarded as unreasonable in view of the large number of cases pending before the Tribunal. Moreover, in the circumstances described in the preceding paragraph, the Registry did not fail in its task of assisting the parties and their representatives in all their exchanges with the Tribunal. In fact, the Registry’s reply arrived at a time when it was still possible for the applicant to rectify the legal aid application. The applicant was able, at the Registry’s request, to send another legal aid application on 3 February 2009 using the on-line form, and to transmit the original of his application to the Registry by 6 February 2009. Diligence on the part of the Registry thus finally enabled the applicant to obtain legal aid.

17 Lastly and most importantly, even if the Tribunal were to accept that the legal aid application was submitted in a valid manner on 23 January 2009, the time-limit laid down for bringing the action began to run again from 19 May 2009, expiring on 8 June 2009. The action was not, however, brought until 9 July 2009.

18 In the second place, the applicant asserts that he was not made aware by the Tribunal of any time-limit for filing the application initiating his action following the adoption of a decision on the legal aid application. On the contrary, so he claims, he was even informed, incorrectly, during a telephone conversation with an official from the Registry which took place on 27 April 2009, that in this case “there [was] no time-limit running yet”.

19 However, the Tribunal has not been able to establish that an official from the Registry uttered the words reported by the applicant.

20 In any event, on this point too the relevant provisions of the Rules of Procedure are unambiguous. It is clear from Article 97(4) of the Rules of Procedure, a provision of which the applicant’s lawyer must have been aware when he took on the applicant’s case, that submitting a legal aid application merely suspends the period prescribed for the bringing of the action until the date of notification of the order ruling on that application. The fact that the remaining period following the order granting legal aid was too short to enable the applicant to prepare his case is merely the consequence of those provisions and of the fact that the applicant did not file his legal aid application in accordance with the requirements of the Rules of Procedure until 3 February 2009, shortly before the time-limit expired. Furthermore, the applicant was assisted by a lawyer after his legal aid application was accepted. That lawyer could not consider himself to be bound by information allegedly given to his client, purely by word of mouth, on 27 April 2009, before he began to represent him. If the lawyer had done so, he could not be regarded as having shown all the diligence required of a normally well-informed professional.

21 It has not therefore been established that the late filing of the application initiating the action stems from an excusable error, a concept which must be interpreted in a restrictive manner and may concern only exceptional circumstances in which, in particular, the conduct of an institution has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person (Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26, and Case C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I-4837, paragraph 24).’

The appeal

Procedure and forms of order sought by the parties

7 By a document lodged at the Registry of the General Court on 17 February 2010, the appellant brought the present appeal. On 8 June 2010, the Commission lodged its response.

8 By document lodged at the Registry on 26 March 2010, the appellant applied for legal aid pursuant to Article 95(1) of the Rules of Procedure of the General Court.

9 The appellant claims that the General Court should:

¾ set aside the contested order;

¾ annul the contested decision;

¾ oblige the European Commission and their specialised services, in particular EPSO, to consider the answers given by the appellant to questions 9, 30 and 32 of the competence test of 14 December 2007 to be correct;

¾ in the alternative, allow the appellant to re-sit the competence test;

¾ in the alternative to the second, third and fourth heads of claim, refer the present case back to the Civil Service Tribunal;

¾ order the Commission to pay the costs of the present proceedings and of the proceedings before the Civil Service Tribunal;

¾ grant the appellant legal aid for the present appeal and order that Dr David Schneider-Addae-Mensah should represent his interests in the present proceedings.

10 The Commission contends that the General Court should:

¾ dismiss the appeal;

¾ order the appellant to pay the costs.

Law

11 Under Article 145 of the Rules of Procedure of the General Court, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the General Court may at any time, acting on a report from the Judge-Rapporteur, by reasoned order dismiss the appeal in whole or in part. In the present case, although the appellant has submitted a request for a hearing, the Court considers that it has sufficient information in the file before it and decides, pursuant to that article, to give a decision on the action without taking further steps in the proceedings.

The first, second, third, fourth and fifth heads of claim

12 In support of his first head of claim, seeking to have the contested order set aside, the appellant raises, in essence, a single plea in law, alleging that the Civil Service Tribunal should have recognised that there was an excusable error which rendered his action at first instance admissible.

– Arguments of the parties

13 The appellant submits that there was much confusion concerning the time-limit for bringing the action at first instance. The resulting uncertainty as to the legal situation required the Civil Service Tribunal to give the appellant and/or his lawyer clear information regarding that time-limit. The Tribunal did not give such clear information. Accordingly, the Tribunal should have held that there was an excusable error rendering the action at first instance admissible.

14 Confusion arose initially because of the application of different provisions governing the time-limit for bringing the action, one in the Rules of Procedure of the Civil Service Tribunal and the other in the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). It is true that Article 91(3) of the Staff Regulations provides that appeals are to be filed within three months. However, on the one hand, Article 97(4) of the Rules of Procedure of the Civil Service Tribunal states unambiguously that the introduction of an application for legal aid is to suspend the period prescribed for the bringing of the action. On the other, Article 33(2) of the Rules of Procedure of the Civil Service Tribunal provides that the President is to fix the dates or time-limits by which the pleadings must be lodged. The appellant takes the view that Article 33 of the Rules of Procedure of the Civil Service Tribunal constitutes a lex specialis in relation to Article 91(3) of the Staff Regulations.

15 The appellant states that, under Article 33(2) of the Rules of Procedure of the Civil Service Tribunal, the President is to fix the time-limits by which the pleadings referred to in Article 33(1) of the Rules of Procedure of the Civil Service Tribunal must be lodged, including the time-limit for lodging the application. In the present case, the President of the Civil Service Tribunal did not fix any time-limit for lodging the application at first instance, which, in the appellant’s view, was necessary in view of the ambiguity of the applicable rules.

16 Further confusion resulted, according to the appellant, from the information given to his lawyer by the Civil Service Tribunal Registry. During a telephone conversation with an official at the Civil Service Tribunal Registry on 27 April 2009, his lawyer was informed that no time-limit was running yet in the present case. The assertion in the contested order that that conversation did not take place is incorrect. Furthermore, in paragraph 20 of the contested order, the Civil Service Tribunal wrongly considered that the information had been given to the appellant and not to his lawyer. Having been informed by the Civil Service Tribunal Registry that no time-limit was running as yet, his lawyer was not required immediately to check the time-limit. The appellant adds that, even if his lawyer had been aware of the true time-limit, despite the ambiguity of the texts applicable, the obviously incorrect information given by the Civil Service Tribunal Registry warrants a finding of excusable error.

17 Yet further confusion resulted from the order granting the appellant legal aid and declaring his action admissible. The appellant submits that the fact that legal aid was granted to him by the order of 12 May 2009 ‘confirmed the admissibility … of the application filed or to [be filed], included the time-limit’. Were that not the case, Article 6 of the European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), would have required that he be informed by the Civil Service Tribunal of the actual time-limit by which the action was to be brought. Article 97(4) of the Rules of Procedure of the Civil Service Tribunal would be inapplicable and would require the President of the Tribunal to fix the time-limit for bringing the action.

18 The appellant adds that the time-limit of six days within which he had to lodge the application at first instance after notification of the order ruling on the application for legal aid was too short. Article 6 of the European Convention on Human Rights and Fundamental Freedoms, which requires a fair trial, means that a lawyer must have a reasonable period in which to work on the case after legal aid has been granted. The fact that the application for legal aid was lodged only shortly before the expiry of the time-limit for bringing the action cannot hamper the right to sufficient time in which to prepare the application.

19 The Commission argues that the appeal is inadmissible at least in part and, in any event, manifestly unfounded.

– Findings of the Court

20 In the contested order, the Civil Service Tribunal held that, pursuant to Article 91(3) of the Staff Regulations and to Article 100(3) and Article 97(4) of the Rules of Procedure of the Civil Service Tribunal, the time-limit for bringing the action at first instance had expired on 25 May 2009. Accordingly, it held that the action brought by the appellant on 9 July 2009 was out of time, and that the appellant had not shown that the late filing of the application was the result of an excusable error and dismissed the action as inadmissible.

21 The appellant complains that the Civil Service Tribunal did not recognise that an excusable error had been made.

22 With regard to the appellant’s first argument that there was confusion as a result of the application of different provisions concerning the time-limit for bringing the action at first instance, it must be borne in mind that Article 91(3) of the Staff Regulations provides that any action regarding the legality of an act adversely affecting a person covered by the Staff Regulations must be filed within three months. Article 33(2) of the Rules of Procedure of the Civil Service Tribunal, which provides that the President is to fix dates or time-limits for lodging pleadings, does not govern the time-limits for lodging actions laid down by the legislature and therefore does not govern the time-limit for bringing the action, which is fixed by the Staff Regulations. The appellant cannot therefore claim that there was confusion owing to the application of different provisions concerning the time-limit for bringing the action. Accordingly, the first argument is clearly unfounded.

23 With regard to the appellant’s second argument, that there was confusion as a result of the incorrect information given to his lawyer by the Civil Service Tribunal Registry during a telephone conversation on 27 April 2009, it must be recalled that the Tribunal held as follows:

‘That lawyer could not consider himself to be bound by information allegedly given to his client, purely by word of mouth, on 27 April 2009, before he began to represent him. If the lawyer had done so, he could not be regarded as having shown all the diligence required of a normally well-informed professional.’

24 In that regard, it is appropriate to note that, in accordance with settled case-law, the first instance court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. The appraisal of the facts by the first instance court does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the Court (see Case T-404/06 P ETF v Landgren [2009] ECR II-2841, paragraphs 191 and 192 and the case-law cited).

25 The view must be taken that the reasoning of the Civil Service Tribunal as to whether the telephone conversation actually took place on 27 April 2009, on the identity of the persons involved in that conversation and on the information given by the Tribunal Registry is a finding of fact which lies within the sole jurisdiction of the Civil Service Tribunal and may not be examined in an appeal, unless there is material inaccuracy. The appellant has not established the existence of any such material inaccuracy. Furthermore, the appellant’s argument that it was his lawyer and not he himself who received that information from the Registry is irrelevant. As the Tribunal found, a lawyer relying on purely oral information, even if given to him by the Registry, cannot be regarded as having shown all the diligence required of a normally well-informed professional. It follows that the second argument is clearly inadmissible.

26 With regard to the appellant’s third argument, that there was confusion caused by the order granting him legal aid, it must be pointed out that there is no connection between an application for legal aid and the main action such that the order ruling on that application can prejudge the admissibility of the action, since the application does not have the same subject-matter as the action and can even be filed before the action, in accordance with Article 96(1) of the Rules of Procedure of the Civil Service Tribunal (see, by analogy, Case T-37/93 Stagakis v Parliament [1994] ECR-SC I-A-137 and II-451, paragraph 23). In the present case, the appellant was not entitled to deduce from the order granting him legal aid that his main action, which he had not yet even brought, was admissible. Accordingly, the third argument is clearly inadmissible.

27 Furthermore, with regard to the argument that the period of 6 days which the appellant had after notification of the order ruling on the application for legal aid was too short and, consequently, contrary to the right to a fair trial, it must be borne in mind that, pursuant to Article 91(3) of the Staff Regulations and to Article 100(3) of the Rules of Procedure of the Civil Service Tribunal, the appellant had a period of three months, extended on account of distance by a single period of 10 days in which to bring his action. In accordance with Article 97(4) of the Rules of Procedure of the Civil Service Tribunal, the time-limit for bringing his action was suspended until the date of notification of the order making a decision on the application for legal aid filed by the appellant before bringing his action. As the Tribunal rightly held in paragraph 20 of the contested order, ‘[t]he fact that the remaining period following the order granting legal aid was too short to enable the applicant to prepare his case is merely the consequence of [Article 97(4) of the Rules of Procedure of the Civil Service Tribunal] and of the fact that the applicant did not file his legal aid application in accordance with the requirements of the Rules of Procedure until 3 February 2009, shortly before the time-limit expired’. In those circumstances, the appellant cannot allege infringement of the right to a fair trial. Accordingly, that argument is clearly unfounded.

28 It follows from the foregoing that the single plea in law must be rejected in part as clearly inadmissible and in part as clearly unfounded. Accordingly, the first head of claim must be rejected. Since the contested order has not been set aside, the second, third, fourth and fifth heads of claim must also be rejected.

The seventh head of claim

29 By his seventh head of claim, the appellant requests the Court to grant him legal aid and to designate Mr Schneider-Addae-Mensah as the lawyer representing him in the present proceedings. It follows from Article 95(2) and (3) of the Rules of Procedure and from Paragraphs 88 and 89 of the Practice Directions to parties that the application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s economic situation and that the use of a form in making the application for legal aid is compulsory. In the present case, it must be held that the appellant has not supplied any information in support of this head of claim and that he submitted an application for legal aid in the prescribed form, after lodging the present appeal, registered as T-73/10 P-AJ. Accordingly, the seventh head of claim must be rejected as clearly inadmissible.

30 It follows from all the foregoing that the appeal must be dismissed in its entirety in part as clearly inadmissible and in part as clearly unfounded.

Costs

31 In accordance with the first paragraph of Article 148 of the Rules of Procedure, the Court is to make a decision as to costs.

32 Under the first subparagraph of Article 87(2) of those Rules, applicable to appeal proceedings by virtue of Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

33 Since the appellant has been unsuccessful and the Commission has applied for costs, he is to bear his own costs and pay those incurred by the Commission in the present proceedings.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby orders:

1. The appeal is dismissed.

2. Mr Svetoslav Apostolov shall bear his own costs and shall pay those incurred by the European Commission in the present proceedings.

Luxembourg, 2 December 2010.

E. Coulon M. Jaeger