ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 May 1995

Case T-569/93

Andrew Macrae Moat

v

Commission of the European Communities

‛Inadmissibility’

Full text in English II-305

Application for:

the annulment of various appointments and promotions which occurred before 1991 and for compensation for the harm allegedly suffered by the applicant.

Decision:

Application dismissed.

Abstract of the Order

Facts and procedure

The applicant, an official in Grade A4 of the Commission, after being informed in November 1992 of the existence of a record of the whereabouts of his staff file and after obtaining a copy of the record on 8 February 1993, lodged a complaint on 11 February 1993 against the apparent failure to consult his staff file, in breach of Article 45 of the Staff Regulations, when the Commission decided on a number of appointments to head of division or head of unit for which he had applied and on promotions to A3 for 1992. On 25 March 1993 the applicant lodged an analogous complaint concerning promotions to A3 made in 1991. The rejections of those two complaints were the subject-matter of the application in Case T-506/93, which was dismissed by judgment of the Court of First Instance on 21 February 1995 [1995] ECRSC II-147. On 25 March 1993 the applicant also requested the Commission to identify the services in which those who, according to the record of whereabouts, had consulted his file before 1991 so that he could decide whether it would be appropriate to submit a complaint concerning appointments and promotions before that date.

Following the Commission's reply dated 29 April 1993, the applicant lodged a document on 23 June 1993 entitled ‘Request and complaint pursuant to Articles 90(1 +2) of the “Statut”’ directed against all pre-1991 decisions filling posts potentially involving promotion for which he had applied which were allegedly taken without comparing his merits and staff reports with those of other candidates.

Admissibility

The decisions rejecting the complaints of 11 February and 25 March 1993 and the claim for compensation for failure to give a reasoned reply to those complaints are already the subject-matter of the application in Case T-506/93 in which judgment was given on 21 February 1995. It follows that the claims made in this application are inadmissible in so far as judgment on them has already been given and that it is accordingly necessary to consider the admissibility solely of the claims relating to the ‘Request and complaint’ document of 23 June 1993.

Article 91(2) of the Staff Regulations provides that an appeal shall lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein.

With regard to the claim for annulment, the Court considers that the document of 23 June 1993 entitled ‘Request and complaint’ constitutes a complaint in so far as it is directed against the decisions to appoint and promote. It is common ground however that all the decisions to appoint or promote which are challenged in these proceedings were taken before 1991. It follows that the complaint was lodged outside the three-month period prescribed by Article 90(2) of the Staff Regulations.

The Court considers that the applicant cannot argue that the period for lodging a complaint against a decision starts to run only from the moment when he discovers the defect allegedly affecting that decision. Since the rules on the time-limits for lodging complaints and bringing actions are a matter of public policy, any exceptions or derogations must be inteipreted restrictively. Thus the mere subsequent discovery by an applicant of an already existing plea or factor cannot, in principle, be treated as a new fact capable of justifying the reopening of time-limits, without prejudicing legal certainty. It follows that the application for annulment of the appointments and promotions which occurred before 1991 is inadmissible.

See: T-506/93 Moat v Commission [1995] ECRSC II-147

With regard to the claim for compensation, the Court considers that, in so far as it seeks compensation for the harm allegedly suffered by the applicant because he was not appointed or promoted, it is closely linked to the claim for annulment. Given the inadmissibility of the latter, it must also be declared inadmissible. In so far, however, as it seeks compensation for the harm allegedly caused to the applicant by the lack of a reasoned reply to his complaint, it suffices to note that it was not preceded by the proper steps of the pre-contentious procedure laid down in Articles 90 and 91 of the Staff Regulations and is consequently inadmissible.

See: T-27/90 Latham v Commission [1991] ECR II-35; T-29/91 Castelletti v Commission [1992] ECR II-77

Operative part:

The application is dismissed as inadmissible.