ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

21 June 2010

Case T-284/09 P

Herbert Meister

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Appeals — Civil service — Officials — Reports procedure — Late drawing up of appraisals — Subject-matter of the action at first instance — Late reply to complaints — Appeal in part manifestly inadmissible and in part manifestly unfounded)

Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) in Joined Cases F-138/06 and F-37/08 Meister v OHIM [2009] ECR-SC I-A-1-131 and II-A-1-727, seeking to have that judgment set aside.

Held: The appeal is dismissed. Herbert Meister is to bear his own costs and pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in connection with these proceedings.

Summary

1. Officials — Actions — Prior administrative procedure

(Staff Regulations of Officials, Arts 90 and 91(3))

2. Officials — Actions — Action brought against the award of promotion points for consecutive periods

(Staff Regulations of Officials, Arts 90 and 91)

3. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted

(Statute of the Court of Justice, Annex I, Art. 11)

1. As regards time-limits for responding to complaints, in order to protect officials from the possible failure to act of the appointing authority with which a complaint has been lodged, the legislature has provided that the silence of the administration, in the form of a lack of response by the appointing authority within the time-limits laid down, constitutes an adverse decision which may be the direct subject of an action for annulment rather than of an action for failure to act. The rights of defence of the official are sufficiently safeguarded and adequately protected by the possibility he has of bringing an action against the act adversely affecting him within the time-limit of three months from the implied decision rejecting his complaint. However, legal certainty requires that the official should act within the time-limits laid down by the Staff Regulations.

On the other hand, a late reply by the appointing authority opens a new time-limit for bringing an action, where the express decision is made before the expiry of the time-limit for bringing an action against the implied decision rejecting the complaint, under the second indent of Article 91(3) of the Staff Regulations.

The fact that a reply to a complaint is made late cannot, as such, call into question the lawfulness of that reply or that of the measure which was the subject of that complaint. First, if such a decision had to be set aside solely on the ground of such delay, the new decision which would have to be made to replace the decision set aside could in no circumstances be any less late than the first one. Second, failure to observe the time-limits laid down by Article 90 of the Staff Regulations does not, in itself, affect the validity of a decision but may give rise to the liability of the institution concerned for the damage which may be caused to the person concerned.

In that regard, the institution incurs liability only where the applicant establishes the existence of damage caused solely by the late communication of the decision.

(see paras 26-30)

See: 125/80 Arning v Commission [1981] ECR 2539, para. 9; C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I-6155, paras 193 to 196; T-54/92 Schneider v Commission [1994] ECR-SC I-A-281 and II-887, para. 27; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECR-SC I-A-51 and II-155, para. 29; T-15/96 Liao v Council [1997] ECR-SC I-A-329 and II-897, para. 34; T-267/03 Roccato v Commission [2005] ECR-SC I-A-1 and II-1, para. 84; T-414/06 P Combescot v Commission [2008] ECR-SC I-B-1-1 and II-B-1-1, para. 44

2. As regards the interdependence of consecutive promotion periods, it is not disputed that, on conclusion of each period, the balance of points of an official is made up of the total points awarded to him in the most recent period (first component) and those which he already had (second component).

The case-law according to which the award of promotion points in a given year has effects which are not confined to the current promotion period does not in any way imply that an official is entitled, when he is informed of the total points he has on conclusion of a period, to challenge not only the first component of his total balance of points but also the second component. If that second component were also liable to be the subject of a complaint or an action, legal certainty would be undermined, since the official could call into question the points awarded to him for previous periods which he did not contest within the time-limits laid down by the Staff Regulations.

(see paras 41-42, 44)

See: T-323/02 Breton v Court of Justice [2003] ECR-SC I-A-325 and II-1587, paras 51 to 53; T-144/03 Schmit v Commission [2005] ECR-SC I-A-101 and II-465, para. 147 and the case-law cited therein; T-311/04 Buendía Sierra v Commission [2006] ECR II-4137, para. 88

3. The first instance court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is apparent from the documents submitted to it, and to appraise those facts. Thus, the appraisal of the facts by the first instance court does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the Court. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

(see para. 55)

See: T-404/06 P ETF v Landgren [2009] ECR II-2841, paras 191-193 and the case-law cited therein