ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

9 December 2015

Mark Van der Veen

v

European Police Office (Europol)

‛Civil service — Europol staff — Temporary staff — Decision 2009/371/JHA — Europol’s refusal to sign a contract for an indefinite period — Article 81 of the Rules of Procedure — Action manifestly inadmissible’

Application

:

under Article 270 TFEU, in which Mr Van der Veen essentially seeks annulment of the implied decision, adopted on 31 May 2014, of the Director of the European Police Office (Europol), by which he refused to renew for an indefinite period the applicant’s temporary contract, and of the decision of the Director of 22 December 2014 rejecting his complaint against that implied decision.

Held

:

The action is dismissed as manifestly inadmissible. Mr Van der Veen is to bear his own costs and is ordered to pay the costs incurred by the European Police Office.

Summary

Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — Claim barred by lapse of time — Reopening — Condition — New fact

(Staff Regulations, Arts 90 and 91)

The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain. Any exceptions to or derogations from those time-limits must be interpreted restrictively.

Although Article 90(1) of the Staff Regulations provides that any official may request the appointing authority to take a decision relating to him, that right does not, however, allow an official or other staff member to set aside the time-limits laid down in Articles 90 and 91 for lodging a complaint and bringing proceedings by indirectly 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 may justify the submission of a request for a review of such a decision.

Where a member of the Europol staff seeks a review of a decision taken by Europol in connection with the signing of his contract, in the light of alleged material new facts, his request for the award of an indefinite contract in actual fact constitutes not a new request within the meaning of Article 90(1) of the Staff Regulations, but a complaint within the meaning of Article 90(2), regardless of how the parties classified that request.

In that regard, while it is possible, on the basis of a material new fact, to obtain the reopening of the time-limits provided for in Articles 90 and 91 of the Staff Regulations for challenging a final decision, the reopening of those time-limits must not lead to the granting of longer time-limits than those prescribed. That approach has the effect of preventing objectively unjustified discrimination between applicants who lodge a complaint against a decision which has not yet become final, in accordance with the time-limit prescribed in Article 90(2) of the Staff Regulations, and those who lodge a complaint against a decision which has become final, in the form of a request for review in the light of new facts.

For reasons of legal certainty, the point at which the time-limit in question starts to run must correspond to the date of the material new fact relied on by the person concerned to justify review of the decision adversely affecting him, or to the date on which he had actual knowledge of that fact.

A request for review of a decision which is to be categorised as a complaint must be submitted within three months of the material new fact on which the official or other staff member intends to rely, or of the date of actual knowledge of that fact, since the time-limit laid down in Article 90(2) of the Staff Regulations for lodging a complaint against a decision adversely affecting an official is three months.

(see paras 22, 25-29)

See:

Judgment of 19 February 1998 in Toller v Commission, T‑142/96, EU:T:1998:41, paras 45, 48, 68, 73 to 75 and the case-law cited therein