4.

In my view the objection of inadmissibility raised by the Commission must be upheld. As I have already pointed out, the ‘requests’ submitted by the applicants were expressly intended to obtain the reclassification of their posts in Category C. They clearly challenge their original classification in Category D pursuant to the instrument appointing them. It is that instrument that must be regarded as the act adversely affecting the applicants and thus the starting point of the period within which proceedings may be brought, subject to the following reservations which I do not consider relevant in this case. In order that an administrative appeal may be regarded as a complaint rather than as a request, it is not enough merely that there exists an act adversely affecting the person concerned. In that regard, however, the Court takes a strict view of the matter. It has consistently held that although an official is entitled to ask the appointing authority to take a decision relating to him, that does not allow him to ‘set aside the time-limits laid down in Articles 90 and 91 for the lodging of a complaint and an appeal by indirectly calling in question by means of a request a previous decision which has not been challenged within the period prescribed’. That is to say, ‘only the existence of new substantial facts may justify the submission of a request for a review of such a decision’ (judgment of 26 September 1985 in Case 231/84 Valentini v Commission at paragraph 14). When a Community official brings proceedings on the basis of the principle laid down in Articles 5 and 7 of the Staff Regulations that his duties must correspond to his grade, he may argue that a discrepancy became apparent after the decision appointing him. The Court has thus held that it is ‘in order’ for an employee whose duties change as a result of administrative reorganization, for example, to ask the institution ‘to review his position in the administration in view of the changes which [have] taken place in the structure of the department to which he [belongs]’ (Case 28/72 Tontodonati v Commission [1973] ECR 779 at paragraph 4). Similarly, the appearance, after the original decision, of new criteria governing classification laid down by the institution, may constitute a new element justifying such reexamination. In that regard the Court has held that although, in principle, ‘an official cannot be permitted to challenge the conditions of his initial recruitment once that recruitment has become definitive’, he may nevertheless rely on a decision of the appointing authority altering the classification criteria which existed at the time of his recruitment but came to his knowledge much later in order to make a request for the review of his classification (Case 190/82 Blomefield v Commission [1983] ECR 3981, at paragraph 10). In both cases it is the existence of a new element which makes it possible to submit a request for the reexamination of a previous decision. In this case there is no indication of any new element of fact. The Court was careful to be sure of that, and in reply to one of the questions that it put to them at the hearing the applicants admitted that their duties had remained the same since their recruitment. As for the table of 9 July 1982 describing basic posts, it does not constitute a new element of fact of such a kind as to provide justification for a request. The applicants have indeed relied on that document in order to establish the discrepancy between their classification under the Staff Regulations and their actual duties. However, that table, which brings up to date the table previously drawn up by the Commission, incorporates amendments made in 1981 regarding Categories A and B and certain posts in Category C ‘involving dataprocessing’. It is obvious that none of these amendments concerns the description of the applicants' posts, as set out in the table which appeared in Administrative Notices No 272 of 4 September 1973 and has not been changed since. In my view the requests submitted by the applicants must therefore, in accordance with Article 90 (1) and (2), be redefined as complaints. Under the second indent of Article 90 (2) of the Staff Regulations a complaint must be submitted to the appointing authority within three months of the date of notification to the person concerned of an act adversely affecting him. The applicants may not, as they have tried to do, take as the starting point of that period the decision by which the appointing authority established each of them. As I have already pointed out, the very wording of the requests puts in issue their classification as a result of the instrument appointing them. In any event, the decision establishing them merely confirms the applicants' original classification in Category D, and the Court has consistently held that an act which merely confirms a previous act does not adversely affect the person concerned and therefore does not revive a right of action which has become barred by the passage of time. Since the act adversely affecting them was the decision appointing them, it must be held that none of the 28 applicants submitted his complaint within the period laid down in the Staff Regulations. Examination of the documents before the Court shows that in the most favourable case more than seven months elapsed between the date of the decision appointing the applicant concerned and the date on which he submitted his complaint. Even if those complaints were not time-barred, it would still be necessary to declare the application to the Court out of time. The application was filed on 18 July 1984, more than three months after the reply of the appointing authority, which was given, in the most favourable case, on 11 January 1984. Neither the ‘complaints’ submitted on 19 December 1983 or 18 January 1984 depending on the applicant concerned nor the implied decisions of rejection with which, say the applicants, they were met can reopen the period for the institution of proceedings, inasmuch as they result from the applicants' error as to the nature of the first steps taken by them, the responsibility for which cannot be laid at the door of the Commission. It must therefore be concluded that the complaints submitted by the applicants to the appointing authority merely sought to impugn an administrative decision which was no longer open to challenge. The time-limits laid down in Articles 90 and 91 of the Staff Regulations ‘are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were laid down with a view to ensuring clarity and legal certainty’ (Case 227/83 Moussis v Commission [1984] ECR 3133 at paragraph 12). For those reasons the application must be declared inadmissible.