ORDER OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 May 2011

Case F-59/10

Yvette Barthel and Others

v

Court of Justice of the European Union

(Civil service — Preliminary pleas — Objection of inadmissibility — Complaint lodged out of time — Inadmissibility)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Barthel, Ms Reiffers and Mr Massez seek annulment of the decision rejecting their claim for payment, from 20 December 2006, of the allowance for continuous work or shiftwork provided for in the first indent of Article 1(1) of Council Regulation (ECSC, EEC, Euratom) No 300/76 of 9 February 1976, determining the categories of officials entitled to allowances for shiftwork, and the rates and conditions thereof (OJ 1976 L 38, p. 1), as amended by, in particular, Council Regulation (EC/Euratom) No 1873/2006 of 11 December 2006.

Held: The action is dismissed as inadmissible. The Court of Justice is ordered to bear its own costs and to pay the applicants’ costs.

Summary

1. Officials — Actions — Prior administrative complaint — Time-limits — Mandatory

(Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Prior administrative complaint — Implied decision rejecting a request not challenged in good time — Subsequent express decision — Confirmatory measure

(Staff Regulations, Arts 90 and 91)

3. Officials — Actions — Act adversely affecting an official — Opinion adopted after an implied decision rejecting a request

(Staff Regulations, Arts 90 and 91)

4. Officials — Actions — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Excusable error — Concept

(Staff Regulations, Arts 90 and 91)

5. Procedure — Costs — To whom chargeable — Taking into account of requirements of fairness

(Rules of Procedure of the Civil Service Tribunal, Arts 87(2) and 88)

1. The time-limits for complaint and appeal referred to in Articles 90 and 91 of the Staff Regulations, which were introduced in order to ensure clarity and certainty in legal relations and to avoid any discrimination or arbitrary treatment in the administration of justice, are a matter of public policy and are not at the discretion of the parties or the Union court, whose task it is to ascertain, even of its own motion, whether they have been observed.

(see para. 22)

See:

29 June 2000, C-154/99 P Politi v European Training Foundation, para. 15

15 January 2009, T-306/08 P Braun-Neumann v Parliament, para. 36

12 May 2010, F-13/09 Peláez Jimeno v Parliament, para. 18

2. A decision expressly rejecting a request following the implied rejection of the same request is a purely confirmatory measure.

(see para. 25)

See:

8 July 2009, F-62/08 Sevenier v Commission, paras 33 to 40, confirmed on appeal by the judgment of 8 July 2010 in Case T-368/09 P Sevenier v Commission, paras 28 to 37

3. Where, after an implied rejection decision, the administration conducts an internal consultation, the opinion it issues corroborating the position initially adopted by the author of the implied decision, without identifying any new matters of law or of fact of which the administration was unaware on the date when it adopted its implied rejection decision, does not constitute a new consideration sufficient to prove that the administration reviewed the implied decision.

(see para. 27)

4. In the context of the Union rules on time-limits for complaint and appeal, the concept of excusable error allowing derogation from those rules must be strictly construed and covers only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all reasonable diligence.

(see para. 28)

See:

15 December 2009, F-8/09 Apostolov v Commission, para. 21 and the case-law cited therein

5. Under Article 87(2) of its Rules of Procedure, the Civil Service Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any. Furthermore, under Article 88 of those Rules of Procedure, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought.

Those provisions should be applied and the institution, which is the successful party, should be ordered to bear all the costs where it has failed to show due diligence in the prelitigation procedure by allowing the period of four months provided for in Article 90(1) of the Staff Regulations to elapse before adopting an express decision rejecting the request submitted by the official concerned.

(see paras 32-35)

See:

28 June 2006, F-27/05 Le Maire v Commission, para. 53