ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

22 November 2012

Case F‑84/11

Barthel and Others

v

Court of Justice of the European Union

(Civil service — Officials — Remuneration — Refusal to grant the applicants an allowance for shift work — Confirmatory decision — Action partly manifestly inadmissible and partly manifestly unfounded)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Barthel, Ms Reiffers and Mr Massez brought the present action seeking, first, annulment of the decision of 17 May 2011 by which the Court of Justice of the European Union rejected their complaint against the implied decision rejecting their request of 14 July 2010 to receive ex nunc an allowance for shift work. Secondly, the applicants seek an order against the Court to pay each of them EUR 10 700.76 by way of compensation for material damage and EUR 3 000 in respect of non-material damage.

Held: The action brought by Ms Barthel, Ms Reiffers and Mr Massez is dismissed, in part, as manifestly inadmissible and, in part, as manifestly unfounded. The Court is to bear its own costs and those incurred by the applicants.

Summary

1. Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — Request for review of a decision of the administration which has become final — No new fact which would cause the time-limit to start to run afresh — Inadmissibility — Request concerning a periodic allowance — No effect

(Staff Regulations, Arts 90 and 91)

2. Officials — Decision adversely affecting an official — Obligation on the administration to specify the grounds and time-limits allowed for appeals — None

3. Officials — Non-contractual liability of the institutions — No express reply to a request under Article 90(1) of the Staff Regulations — Unlawfulness — Condition

(Staff Regulations, Art. 90)

1. The periodic nature of an allowance does not constitute a sufficient reason for an official to submit to the appointing authority, under Article 90(1) of the Staff Regulations, a new request for that authority to reverse its decision, which in the meantime has become final, in order to make different provision with regard to the temporal effects of the decision, namely, that they should no longer be retrospective but exclusively for the future.

An official is not allowed to set aside the time-limits laid down in Articles 90 and 91 of the Staff Regulations by indirectly calling in question, by means of a request, a previous decision which he has not challenged within the time-limits. Only the existence of important new facts is capable of justifying the possible review of a decision which has become final.

Moreover, the appointing authority is not prevented from adopting a new decision where the initial decision has not been challenged within the time-limits and has thus become final. That authority may still take a new decision for the future — subject where appropriate to observance of acquired rights — and is also entitled to confirm its initial decision. In the latter hypothesis, since the new decision purely confirms the initial decision, which has become final, it cannot be challenged before the Courts.

(see paras 25-27)

See:

11 July 1997, T‑16/97 Chauvin v Commission, para. 37 and the case-law cited

12 September 2011, F‑98/10 Cervelli v Commission

2. At the present time there is no general obligation on institutions under EU law to inform officials and other staff to whom their measures are addressed of the judicial remedies available or any obligation to state the time-limits applicable to them. Therefore, so far as Article 41 of the Charter of Fundamental Rights of the European Union is concerned, the wording of that provision does not impose on institutions the specific obligation to inform officials and other staff working for them of the remedies and time-limits provided for by the Staff Regulations.

(see paras 35-36)

See:

27 November 2007, C‑163/07 P Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission, para. 41 and the case-law cited

3. The existence of loss which may result from the appointing authority’s choice of an implied rather than an express rejection of a request submitted by an official under Article 90(1) of the Staff Regulations depends necessarily on whether or not such rejection is lawful, since implied rejection as such is provided for in Article 90(2) of the Staff Regulations.

(see para. 40)