ORDER OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 June 2009

Case F-72/08

Michalis Ketselidis

v

Commission of the European Communities

(Civil service – Officials – Action – Prior administrative complaint – Holding reply – Excusable error – None – Implicit rejection decision – Complaint out of time – Inadmissibility – Judgment of a Community court – Substantial new fact – None)

Application: brought under Articles 236 EC and 152 EA, in which Mr Ketselidis seeks annulment of the appointing authority’s implicit decision rejecting his request for revision of the calculation of his pension annuities resulting from the transfer to the Community scheme of the actuarial equivalent of pension rights he had acquired in Greece.

Held: The application is dismissed as manifestly inadmissible. The applicant is ordered to pay the costs in their entirety.

Summary

1. Officials – Actions – Time-limits – Reconsideration of an administrative decision that has become definitive

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Act adversely affecting an official – Definition – Administration’s holding reply to an official’s request – Not included

(Staff Regulations, Arts 90 and 91)

3. Officials – Actions – Prior administrative complaint – Time-limits – Claim barred by lapse of time – Excusable error

(Staff Regulations, Arts 90 and 91)

1. The existence of a new and substantial fact may warrant the submission of a request for reconsideration of a decision that has become definitive upon expiry of the time-limits for appeal. The fact in question must be capable of substantially changing the situation of the person seeking reconsideration of that decision. Furthermore, it is for the person concerned to submit his administrative request within a reasonable period. His interest in seeking to bring his administrative situation into line with new rules must be weighed against the need for legal certainty.

(see paras 32-36)

See:

231/84 Valentini v Commission [1985] ECR 3027, para. 14; 232/85 Becker v Commission [1986] ECR 3401, para. 10

T-202/97 Koopman v Commission [1998] ECR-SC I‑A‑163 and II‑511, para. 24; T-186/98 Inpesca v Commission [2001] ECR II‑557, para. 51

F-92/05 Genette v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 62

2. The notification indicating that a request submitted under Article 90(1) of the Staff Regulations is under consideration and that the departments of the institution in question have not yet reached a final conclusion does not produce any legal effect and is not, in particular, capable of extending the time-limits laid down in Articles 90 and 91 of the Staff Regulations. It is not for the parties to a dispute to extend the time-limits laid down in Article 91 of the Staff Regulations at their own convenience, since those time-limits are a matter of public policy and strict compliance with them ensures that legal situations are clear and certain.

(see para. 52)

See:

43/64 Müller v Council [1965] ECR 385; 40/71 Richez-Parise v Commission [1972] ECR 73, paras 8 and 9

3. Failure to comply with the rules on the time-limits for complaints and appeals cannot lead to the dismissal of an application as inadmissible in cases where that failure is due to an excusable error on the part of the official. The concept of excusable error may, however, relate only to exceptional circumstances, in particular where the conduct of the 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 experienced person.

In a situation where the administration sends a holding reply shortly before the expiry of the time-limit laid down in Article 90(1) of the Staff Regulations, accepting the excusable nature of the official’s error would be tantamount to rendering redundant the settled case-law according to which the notification indicating that a request is under consideration does not produce any legal effect and, in particular, is not capable of extending the time-limits laid down in Articles 90 and 91 of the Staff Regulations, and would be contrary to the restrictive interpretation that must be given to the concept of excusable error.

(see paras 55, 57-58)

See:

C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I‑4837, para. 22

T-186/01 Robert v Parliament [2003] ECR-SC I‑A‑131 and II‑631, para. 54; T-14/03 Di Marzio v Commission [2004] ECR-SC I‑A‑43 and II‑167, para. 40