ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 July 1997

Case T-63/96

Augusto Fichtner

v

Commission of the European Communities

‛Officials — Staff report — Complaint — Implied rejection m Manifest inadmissibility of the action’

Full text in Italian II-563

Application for:

first, annulment of the Commission's decision of 12 February 1996 expressly rejecting the applicant's complaint of 14 February 1995 concerning his staff report for the period from 1 July 1991 to 30 June 1993 and, second, damages for material and nonmaterial loss allegedly suffered by the applicant

Decision:

Application dismissed.

Abstract of the Order

The applicant is an official in Grade B 4 at the Joint Research Centre at Ispra in Italy. His staff report for the period 1 July 1991 to 30 June 1993 (the contested report) contains negative assessments. It was communicated to him by the Commission on 3 August 1994.

On 10 August 1994, the applicant brought his comments to the attention of the appeal assessor, in accordance with Article 6 of the general implementing provisions. By note of 16 January 1995, the appeal assessor confirmed the applicant's first report.

By note registered on 14 February 1995, the applicant submitted a complaint under Article 90 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), seeking amendment of the contested report and compensation for the material and nonmaterial damage which he had allegedly suffered. By decision of 12 February 1996, notified to the applicant on 20 February 1996, the Commission expressly rejected his complaint.

Admissibility

The making of a formal complaint, within the meaning of Article 90 of the Staff Regulations, is not a necessary precondition for bringing an action against a staff report. However, when the official chooses to lodge an administrative complaint, he must observe all the constraints attaching to this procedure (paragraph 17).

See: T-29/89 Moritz v Commission [1990] ECR II-787, para. 15; T-1/92 Della Pietra v Commission [1992] ECR II-2145, para. 24; T-192/94 Mattrissen v Court of Auditors [1996] ECRSC II-1229. para. 22

Those procedural constraints involve, inter alia, compliance with the time-limits laid down in Articles 90 and 91 of the Staff Regulations. Those time-limits are laid down as a matter of public policy with a view to ensuring clarity and legal certainty and are not a plea to be raised at the discretion of the parties or the court (paragraph 18).

See: 232/85 Becker v Commission [1986] ECR 3401, para. 8; T-58/89 Williams v Court of Auditors [1991] ECR II-77, para. 39; T-14/91 Weyrich v Commission [1991] ECR II-235, para. 33; T-38/91 Coussios v Commission [1991] ECR II-763. para. 24; T-15/91 Bollendorff v Parliament [1992] ECR II-1679, para. 22

The time-limits referred to above do not start to run until the day on which the report may be regarded as final (paragraph 19).

See: 6/79 and 97/79 Grassi v Council [1980] ECR 2141, para. 15; Moritz v Commission, cited above, para. 15

In this case, the applicant submitted his complaint against the contested report within the period of three months prescribed by Article 90(2) of the Staff Regulations. It was registered on 14 February 1995. However, the Commission made no reply to it within the period of four months laid down by Article 90(2) of the Staff Regulations. That failure to reply thus constituted an implied decision rejecting the complaint, deemed to have been taken on 14 June 1995. Consequently, the applicant had to bring his appeal against that implied decision within the three months provided for by Article 91(3), that is to say, by 25 September 1995 at the latest, allowing for extension of time-limits on account of distance. However, he did not lodge his application until 10 May 1996. It follows that the action is out of time (paragraphs 23 and 24).

Nevertheless, failure to comply with the time-limits prescribed by Article 91(3) of the Staff Regulations does not prevent an application from being admissible where the applicant has been in excusable error. In this context, the concept of excusable error must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence of a normally experienced operator (paragraph 25).

See: T-12/90 Bayer v Commission [1991] ECR II-219, paras 28 and 29; T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, paras 32 and 34

However, in this case the applicant has not adduced any evidence from which the Court can conclude that he was in any such error (paragraph 26).

Finally, although the express decision which purely and simply rejected the applicant's complaint may have disclosed the grounds for the rejection, it was still no more than confirmation of the Commission's implied decision rejecting the complaint. Heads of claim seeking annulment of a confirmatory act are inadmissible (paragraph 27).

See: 24/69 Nebe v Commission [1970] ECR 145, para. 8; 33/79 and 75/79 Kühner v Commission [1980] ECR 1677, para. 9; T-l 10/94 Sanchez Mateo v Commission [1996] ECR-SCII-805, paras 32 and 33

Operative part:

The action is dismissed as manifestly inadmissible.