ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

15 February 1995

Case T-552/93

Giuseppe Grassi

v

Commission of the European Communities

‛Officials — Admissibility — Prior complaint through official channels — Implied decision rejecting a request and not contested within the prescribed period — Subsequent express decision — Confirmatory act — Time-barred’

Full text in Italian II-125

Application for:

the annulment of the rejection by the Commission of the applicant's request for the transfer to the Community pension scheme of the pension rights acquired by him under the Italian State pension scheme.

Decision:

Application dismissed.

Abstract of the Order

On 8 November 1991, the applicant submitted a request, received by the Commission on 9 January 1992, for the transfer to the Community pension scheme of the pension rights acquired by the applicant under the Italian State social security scheme prior to his entering the service of the Commission. By memorandum of24 September 1992, the Commission informed the applicant that his request could not be entertained.

By letter of 22 December 1992, received on 12 January 1993, the applicant lodged a complaint against the decision of 24 September 1992. That complaint was rejected by decision of 29 July 1993, against which the applicant has brought the present action.

Admissibility

The Court examines of its own motion whether the applicant has complied with the time-limits applying in the pre-litigation procedure, which are a matter of public policy and are not a plea to be raised at the discretion of the parties or the court, since they were laid down with a view to ensuring clarity and legal certainty in legal relationships (paragraphs 22 and 23).

See: 232/85 Becker v Commission [1986] ECR 3401; 161/87 Muysers and Tülp v Court of Auditors [1988] ECR 3037; T-58/89 Williams v Court of Auditors [1991] ECR II-77; T-129/89 Offermann v Parliament [1991] ECR II-855; T-15/91 Bollendorff v Parliament [1992] ECR II-1679

Pursuant to Article 90(1) of the Staff Regulations, the request for a transfer, which reached the Commission by 9 January 1992 at the latest, was, in the absence of any reply by the Commission, impliedly rejected on 9 May 1992. Furthermore, the applicant did not lodge any complaint against the implied rejection of his request for a transfer by 9 August 1992, the date on which the period of three months laid down by Article 90(2) of the Staff Regulations expired. Lastly, the decision of 24 September 1992 expressly rejecting the request merely confirmed the earlier implied decision rejecting it (paragraphs 24, 26 and 27).

The Court therefore considers that the effect of that purely confirmatory decision could not have been to cause time to start running afresh for the purposes of submitting a complaint against the implied decision rejecting the request and that, consequently, the claim for the annulment of the decision of 24 September 1992 is in any event manifestly inadmissible (paragraphs 30 and 32).

See: Offermann v Parliament and Bollendorffv Parliament, cited above

Lastly, the Court points out that, even though the defendant did not expressly plead that the complaint was out of time, that does not relieve the Community judicature of its duty to examine whether the time-limits laid down in the Staff Regulations have been complied with (paragraph 31).

See T-130/89 B v Commission [1990] ECR II-761; T-6/90 Petrilli v Commission [1990] ECR II-765; T-19/90 Von Hoessle v Court of Auditors [1991] ECR II-615; T-54/90 Lacroix v Commission [1991] ECR II-749; Bollendorffv Parliament, cited above

Operative part:

The application is dismissed as manifestly inadmissible.