ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

7 December 1994

Case T-242/94

Sergio Del Plato

v

Commission of the European Communities

‛Objection of inadmissibility’

Full text in Italian II-961

Application for:

the annulment of the Commission's decision excluding the applicant from the list of candidates regarded as suitable for advancement from category B to category A in the scientific and technical services, according to the procedure published in 1989, and an order that die Commission compensate the applicant for die material and nonmaterial damage which he considers that he has suffered as a result of that decision.

Decision:

Application dismissed.

Abstract of Order

Mr Del Plato is an official in category B of the Commission's scientific and technical services. On 1 June 1992, the ad hoc committee responsible for selecting candidates suitable for advancement from category B to category A informed him that he was not included among the candidates regarded as suitable to change category. Mr Del Plato did not react to that decision.

After becoming aware, on publication on 27 August 1993 of the order removing from the register the case brought by a colleague, Mr X, against the decision notifying him of his own exclusion, of the existence of a decision by the ad hoc committee to include that colleague, after reexamination of his case, in the list of candidates regarded as suitable to change category, the applicant on 19 November 1993 submitted a complaint against the decision of the ad hoc committee not to include his candidature, arguing that the inclusion of the abovementioned colleague constituted a new fact, capable of reopening the time-limits laid down by Articles 90 and 91 of the Staff Regulations. The Commission did not reply to that complaint.

Admissibility

It is settled case-law that the time-limits laid down by Articles 90 and 91 of the Staff Regulations are a matter of public policy and derogations may be made only exceptionally, by reason of the occurrence of a new substantial fact capable of reopening the time-limits (paragraph 18).

See: 23/80 Grasselli v Commission [1980] ECR 3709, para. 26; 127/84 Esly v Commission [1985] ECR 1437, paras 10 and 12; 191/84 Barcella and Others v Commission [1986] ECR 1541, para. 12; 232/85 Becker v Commission [1986] ECR 3401, paras 8 and 10; 302/85 Pressler-Hoeft v Court of Auditors [1987] ECR 513, para. 5; T-6/90 Petrilli v Commission [1990] ECR II-765; T-129/89 Offermann v Parliament [1991] ECR II-855, paras 31 and 34; T-15/91 Bollendorffv Parliament [1992] ECR II-1679, paras 26 and 27; T-87/91 Boessen v ESC [1993] ECR II-235, para. 26; T-55/92 Knijff v Court of Auditors [1993] ECR II-823, para. 27

The adoption of a decision concerning one or more of an applicant's colleagues may at the very most constitute a new substantial fact justifying the reexamination of his case where the situations concerned are similar and in particular where die reasons justifying the decision which may be adopted following reexamination are not different from the reasons which justified adoption of the decision which the applicant invokes by way of new fact (paragraph 20).

See: Eslyv Commission, cited above; 231/84 Valentiniv Commission [1985] ECR 3027; 161/87 Muysers and Tülp v Court of Auditors [1988] ECR 3037

In this case, it is common ground that the reasons which led to the exclusion of the applicant and, initially, of Mr X from the list of suitable candidates, and the subsequent inclusion of the latter in that list, were different, so that die applicant cannot validly claim, in the absence of similarity between his situation and that of Mr X, that the decision to include the latter in the list of suitable candidates constitutes a new substantial fact vis-à-vis him. Consequently the decision of 8 July 1993 to include Mr X on the list of suitable candidates cannot be invoked by the applicant to justify reopening the time-limits laid down by Articles 90 and 91 of the Staff Regulations (paragraphs 22 and 23).

Operative part:

The application is dismissed as inadmissible.