JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 June 2013

Willy Buschak

v

European Commission

‛Civil service — Temporary staff — Unemployment allowance — Pension contributions — Complaint lodged out of time’

Application:

brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Buschak seeks, principally, first, annulment of the European Commission’s decision of 24 February 2012 refusing to take into consideration a period in which he was unemployed for the purpose of calculating his retirement pension rights under the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and to pay the related contributions, and, second, an order that the Commission take that period into account for the purpose of calculating his retirement pension rights and pay the related contributions, and, in the alternative, first, an order that the Commission apply to the institution in charge of the German pension scheme for retroactive insurance and pay the related statutory contributions, and, second, payment of damages for the harm suffered.

Held:

The action is dismissed. Mr Buschak is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Actions brought by officials — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Reopening — Condition — New fact — Definition — Act confirming an earlier decision — Not included

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 46)

Articles 90 and 91 of the Staff Regulations, applicable by analogy to members of the temporary staff pursuant to Article 46 of the Conditions of Employment of Other Servants, make the admissibility of an action brought by an official or member of the temporary staff against the institution to which he belongs conditional on the proper observance of the preliminary administrative procedure laid down thereunder.

Thus an official or member of the temporary staff may not set aside the time-limits laid down by Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by calling in question, by means of a request, a previous decision which has not been challenged within the period prescribed. Only the existence of material new facts can justify the submission of a request for a review of a decision which has become definitive. In that regard, a letter from the administration which merely refers to information already communicated to the person concerned may not be regarded as an act adversely affecting him capable of starting a new period running for initiating proceedings before the Courts.

(see paras 23-24, 26)

See:

15 May 1985, 127/84 Esly v Commission, para. 10; 4 June 1987, 16/86 P. v ESC, para. 6

11 May 1992, T‑34/91 Whitehead v Commission, para. 18; 4 May 2005, T‑144/03 Schmit v Commission, para. 147

10 September 2007, F‑146/06 Speiser v Parliament, para. 22

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 June 2013

Willy Buschak

v

European Commission

‛Civil service — Temporary staff — Unemployment allowance — Pension contributions — Complaint lodged out of time’

Application:

brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Buschak seeks, principally, first, annulment of the European Commission’s decision of 24 February 2012 refusing to take into consideration a period in which he was unemployed for the purpose of calculating his retirement pension rights under the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and to pay the related contributions, and, second, an order that the Commission take that period into account for the purpose of calculating his retirement pension rights and pay the related contributions, and, in the alternative, first, an order that the Commission apply to the institution in charge of the German pension scheme for retroactive insurance and pay the related statutory contributions, and, second, payment of damages for the harm suffered.

Held:

The action is dismissed. Mr Buschak is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Actions brought by officials — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Reopening — Condition — New fact — Definition — Act confirming an earlier decision — Not included

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 46)

Articles 90 and 91 of the Staff Regulations, applicable by analogy to members of the temporary staff pursuant to Article 46 of the Conditions of Employment of Other Servants, make the admissibility of an action brought by an official or member of the temporary staff against the institution to which he belongs conditional on the proper observance of the preliminary administrative procedure laid down thereunder.

Thus an official or member of the temporary staff may not set aside the time-limits laid down by Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by calling in question, by means of a request, a previous decision which has not been challenged within the period prescribed. Only the existence of material new facts can justify the submission of a request for a review of a decision which has become definitive. In that regard, a letter from the administration which merely refers to information already communicated to the person concerned may not be regarded as an act adversely affecting him capable of starting a new period running for initiating proceedings before the Courts.

(see paras 23-24, 26)

See:

15 May 1985, 127/84 Esly v Commission, para. 10; 4 June 1987, 16/86 P. v ESC, para. 6

11 May 1992, T‑34/91 Whitehead v Commission, para. 18; 4 May 2005, T‑144/03 Schmit v Commission, para. 147

10 September 2007, F‑146/06 Speiser v Parliament, para. 22