ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

22 June 2015

Annetje Elisabeth van Oudenaarden

v

European Parliament

‛Civil service — Officials — Annual leave — Carry-over limited to 12 days — Compensation — Pension statement — Failure to contest within the time-limit — Lack of new material facts — Article 81 of the Rules of Procedure — Action manifestly inadmissible’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms van Oudenaarden seeks annulment of the decision by which the European Parliament refused to grant her requests to carry over days of leave not taken in 2012, beyond the 12 days allowed, and payment of corresponding financial compensation.

Held:

The action is dismissed as manifestly inadmissible. Ms van Oudenaarden and the European Parliament are each to bear their own costs.

Summary

Actions brought by officials — Time-limits — Point from which time starts to run — Notification — Absence of or inadequate statement of reasons for a duly notified decision — No effect — Exception — Decision on an essential element of the employment relationship

Actions brought by officials — Act adversely affecting an official — Definition — Pension statement — Inclusion commonly accepted for the purpose of exercising the right of appeal — Condition — Reliance by an experienced official on pension statement’s lack of clarity — Rejection

The time-limits for lodging a complaint and bringing an action, which are matter of public policy and not at the discretion of the parties or the court, are intended to safeguard, within the EU institutions, the legal certainty which is essential for their successful operation, by preventing Union measures which involve legal effects from being called in question indefinitely, and to prevent any discrimination or arbitrary treatment in the administration of justice. The existence of substantial new facts may, however, justify the submission of a request for reconsideration of a previous decision which has become definitive. A judgment on review for which the person concerned was neither a party in the case nor directly concerned by the administration’s decision that was the subject of the proceedings may not be regarded as a substantial new fact allowing the person’s situation to be reviewed beyond the time-limits laid down by the Staff Regulations for lodging a complaint against a decision of the administration. The legal effects of a judgment in proceedings for annulment concern, apart from the parties, only the persons directly affected by the measure annulled, since such a judgment can only constitute a new factor with regard to those persons. (see paras 24, 25, 41-43) See: Judgment of 8 March 1988 in Brown v Court of Justice, 125/87, EU:C:1988:136, para. 13 Judgments of 7 February 2001 in Inpesca v Commission, T-186/98, EU:T:2001:42, para. 47; 5 March 2008 in Combescot v Commission, T-414/06 P, EU:T:2008:58, para. 43 and the case-law cited therein, and order of 24 March 1998 in Meyer and Others v Court of Justice, T-181/97, EU:T:1998:64, para. 36 Orders of 12 September 2011 in Cervelli v Commission, F-98/10, EU:F:2011:131, paras 19 and 23; 22 November 2012 in Barthel and Others v Court of Justice, F-84/11, EU:F:2012:160, para. 25, and 20 March 2014 in Michel v Commission, F-44/13, EU:F:2014:40, para. 46 and the case-law cited therein

A letter sent by an official to his head of unit does not constitute a request under Article 90(1) of the Staff Regulations, since that head of unit does not have the capacity of appointing authority. Consequently, failure to reply to that letter within a period of four months may not be treated in the same way as an implied decision rejecting the request, setting running the time-limits laid down in the Staff Regulations for lodging a complaint. (see para. 27) See: Order of 30 September 2014 in Ojamaa v Parliament, F-37/14, EU:F:2014:230, para. 21

A pension statement, by its nature and purpose, does not have the characteristics of an act adversely affecting an official, since it merely expresses in financial terms the effect of earlier legal decisions concerning the official’s situation. Thus, while it is true that pension statements are commonly regarded as acts adversely affecting an official in so far as they show that his financial rights have been adversely affected, in reality the act which actually adversely affects the official is the decision by the appointing authority to reduce or abolish a payment which the official received hitherto and which was shown on his pay slips. Nevertheless, the pension statement remains very important for determining the official’s procedural rights as laid down in the Staff Regulations. In particular, the forwarding to the official of his pension statement fulfils a dual function, one informing him of the decision taken by the appointing authority and one relating to time-limits, so that, provided the statement clearly shows the existence and scope of the decision taken, its communication sets the time-limit running for challenging that decision. In that regard, any normally diligent official is deemed to be familiar with the Staff Regulations and more particularly the rules governing his salary. Moreover, the normal diligence that may be expected of an official is to be assessed in the light of his training, grade and professional experience. Thus, an official in grade AST 8 with lengthy professional experience within an institution, even if he is not called upon to apply the rules of the Staff Regulations in the performance of his duties, cannot reasonably claim that his pension statement, showing a decision refusing to carry over days of annual leave, lacked clarity because it did not state the exact number of days of leave, the period in question and the method for calculating the amount paid in compensation, since he might have realised, as soon as he received that statement, that all of his days of annual leave had not been carried over. In any event, he might at least, as an official exercising due care, have questioned his administration about whether the amount paid in compensation did indeed take account of the carry-over requested. (see paras 29, 30, 32, 33, 36) See: Judgment of 27 October 1994 in Benzler v Commission, T-536/93, EU:T:1994:264, para. 15 Judgments of 28 June 2006 in Grünheid v Commission, F-101/05, EU:F:2006:58, para. 42; 23 April 2008 in Pickering v Commission, F-103/05, EU:F:2008:45, para. 72, and order of 20 March 2014 in Michel v Commission, EU:F:2014:40, paras 53 and 58 and the case-law cited therein

Although the Staff Regulations require that any decision relating to a specific individual must at once be communicated to him in writing, the fact remains that communication is a measure subsequent to the decision, which pre-exists it. The communication of a decision is therefore not decisive in assessing whether that decision is an act adversely affecting an official. (see para. 37) See: Order of 13 September 2013 in Conticchio v Commission, T-358/12 P, EU:T:2013:525, para. 22 Order of 22 April 2015 in ED v ENISA, F-105/14, EU:F:2015:33, para. 42