ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

25 March 1998

Case T-202/97

Louis Koopman

v

Commission of the European Communities

‛Officials — Classification in step — Seniority — Article 90 of the Staff Regulations — Inadmissibility’

Full text in French II-511

Application for:

annulment of the Commission's decision of 21 October 1996 rejecting the applicant's application for regrading in accordance with the third paragraph of Article 32 of the Staff Regulations of Officials of the European Communities

Decision:

Application dismissed.

Abstract of the Order

The applicant entered into service at the Court of Auditors of the European Communities on 3 September 1979, as a member of the temporary staff in Grade A 6, Step 3. On 1 September 1981 he moved up to Grade A 6, Step 4. On 1 July 1982, having successfully taken part in a competition for administrators, the applicant was appointed as a permanent official in Grade A 6, Step 3. On 1 September 1984 the applicant was transferred to the Commission.

Article 8 of Council Regulation (EEC, Euratom, ECSC) No 3947/92 of 21 December 1992 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities (OJ 1992 L 404, p. 1) adds a third paragraph to Article 32 of the Staff Regulations of Officials of the European Communities (Staff Regulations). That paragraph provides that ‘[m]embers of the temporary staff graded in accordance with the grading criteria adopted by the institution shall retain the seniority in the step acquired in that capacity if they are appointed officials in the same grade immediately following the period of temporary service’. Regulation No 3947/92 entered into force on 1 January 1993.

In its judgment in Case T-93/94 Becker v Court of Auditors [1996] ECR II-141, the Becker judgment, the Court of First Instance interpreted the third paragraph of Article 32 of the Staff Regulations as also applying to members of the temporary staff appointed as permanent officials before the entry into force of Regulation No 3947/92. The Court of First Instance pointed out that it was not declaring that Regulation No 3947/92 applied retroactively but rather that it should apply immediately.

By letter of 5 August 1996 the applicant asked the Commission to regrade him in the light of the Becker judgment. By letter of 21 October 1996 the Commission replied that it could not examine the applicant's request on the ground that his initial grading was that accorded to him by the Court of Auditors.

On 12 November 1996 the applicant submitted a complaint against that refusal by the Commission. By letter of 2 April 1997 the Commission dismissed the applicant's complaint on the ground that the application for regrading was submitted out of time.

Admissibility

An action brought by an official before the Court of First Instance must be held to be inadmissible if the prelitigation procedure has not followed its proper course. In that respect, Article 90(1) of die Staff Regulations does not grant the right to submit an administrative request, seeking, essentially, reconsideration by the appointing authority of a decision which has become definitive. The existence of a new and substantive fact may, however, justify the submission of a request for the reexamination of such a decision (paragraphs 22 and 23).

See: 231/84 Valentini v Commission [1985] ECR 3027, para. 14; T-34/91 Whitehead v Commission [1992] ECR II-1723, para. 18; T-495/93 Carrer and Others v Court of Justice [1994] ECRSC II-651, para. 19; T-l 12/94 Moat v Commission [1995] ECRSC II-135, para. 25; T-7/94 Adriaenssensand Others v Commission [1997] ECRSC II-1, para. 27

That may be true of an amendment to the rules relating to grading, but it is for the official to submit his application for regrading pursuant to a new provision inserted into the Staff Regulations within a reasonable time. The official's interest in seeking the adaptation of his administrative situation to a new rule must be weighed against the essential requirement of legal certainty. A period of more than three-and-a-half years between the entry into force of that rule and the submission of the official's request clearly exceeds the time necessary to prepare a request and submit it, through the official channels, to the appointing authority (paragraphs 24 and 25).

Operative part:

The application is dismissed as inadmissible.