ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

3 February 2009

Case F-40/08

Daniela Paula Carvalhal Garcia

v

Council of the European Union

(Civil service – Former officials – Remuneration – Education allowance – Refusal to grant – Action out of time – Manifest inadmissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Carvalhal Garcia seeks, in particular, annulment of the decision of the Deputy Secretary General of the Council of 16 November 2007 rejecting her complaint against the decision to withdraw the education allowance which she received for her daughter.

Held: The action is dismissed as manifestly inadmissible. The applicant is to pay all the costs.

Summary

Procedure – Decision taken by way of reasoned order – Conditions – Appeal manifestly inadmissible or manifestly lacking any legal basis – Prior administrative complaint out of time

(Rules of Procedure of the Civil Service Tribunal, Art. 76; Staff Regulations, Arts 90 and 91)

Where an action is manifestly inadmissible, the possibility provided for in Article 76 of the Rules of Procedure of the Civil Service Tribunal of giving a decision by reasoned order without taking further steps in the proceedings does not apply solely in cases where the failure to observe the rules on admissibility is so clear and flagrant that no reasonable argument can be relied on in favour of admissibility, but also in cases where, upon reading the file, the Court hearing the case, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the inadmissibility of the application, in particular because that application fails to observe the requirements laid down by settled case-law, and it further considers that the holding of a hearing would be unlikely to provide any new information whatsoever in that respect. In such a case, the dismissal of the application by reasoned order not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing.

That is true where an official, disregarding the settled case-law according to which the admissibility of an action is subject to compliance with the prior administrative procedure laid down in Articles 90 and 91 of the Staff Regulations, particularly as regards time-limits, and even though that rule is a matter of public policy, since the time-limits are not for the parties or the Court to decide, submits a mere request, rather than a complaint, against an act adversely affecting him, or lodges a complaint within the time-limit against a purely confirmatory act, or brings an action out of time following rejection of his complaint.

Excusable error, which constitutes a possible exception to or derogation from those time-limits, must be interpreted narrowly and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person. That is not true where the administration sends the complainant an email clearly stating that it had to apply the rules in force, however strict, and informing him that his case was again to be referred to experts, but without dissuading him from using the legal remedies available to challenge the decision adversely affecting him or the rejection decision, or creating confusion as to the time-limits for those remedies, or suggesting that those time-limits might be extended.

The mere fact that the applicant has his own interpretation of how events unfolded and of the legal nature of the measures taken and the emails exchanged cannot be taken to suggest implied reliance on excusable error, otherwise the Tribunal would have to seek such error in almost every case where there was a question of admissibility and in which the applicant’s interpretation was not accepted.

(see paras 13, 14, 16-21, 23-25)

See:

227/83 Moussis v Commission [1984] ECR 3133, para. 12; C‑154/99 P Politi v European Training Foundation [2000] ECR I‑5019, para. 15

T-34/91 Whitehead v Commission [1992] ECR II‑1723, para. 18; T‑112/94 Moat v Commission [1995] ECR-SC I‑A‑37 and II‑135, para. 20; T-6/94 A v Parliament [1996] ECR-SC I‑A‑191 and II‑555, paras 52 to 54; T-312/00 Tavares v Commission [2001] ECR‑SC I‑A‑75 and II‑367, para. 23; T-186/01 Robert v Parliament [2003] ECR-SC I‑A‑131 and II‑631, paras 52, 53, 54 and the case-law cited therein, 55 and 56; T-95/04 Lavagnoli v Commission [2006] ECR‑SC I‑A‑2‑121 and II‑A‑2‑569, para. 41

F-87/06 Manté v Council [2007] ECR-SC I-A-1-0000 and II-A-1-0000, paras 16 and 18