ORDER OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 April 2008

Case F-78/07

Stanislava Boudova and Others

v

Commission of the European Communities

(Civil service – Officials – Appointment – Classification in grade – Members of the auxiliary staff appointed as officials – Competition published before the entry in force of the new Staff Regulations – Acts adversely affecting a party – Admissibility of the action)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Boudova and seven other Commission officials seek annulment of the decision rejecting their request for, in particular, review of their classification in grade.

Held: The action is dismissed as manifestly inadmissible. Each party is to bear its own costs.

Summary

1. Procedure – Admissibility of actions – Assessment by reference to the rules in force when the application was lodged

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

2. Officials – Actions – Act adversely affecting an official – Determined in the light of a request for reclassification

(Staff Regulations, Arts 90 and 91)

3. Officials – Actions – Prior administrative complaint – Time-limits – Mandatory – Claim barred by lapse of time – Reopening – Condition – New fact

(Staff Regulations, Arts 90 and 91)

1. Although the rule laid down in Article 76 of the Rules of Procedure of the Civil Service Tribunal that the Tribunal may, by way of an order, dismiss an action which appears manifestly bound to fail is a procedural rule which, as such, applies to all proceedings pending before the Tribunal at the time when it enters into force, the same is not true of rules on the basis of which the Tribunal may, under that article, regard an action as manifestly inadmissible, and which may only be those applicable on the date when the action is brought.

(see para. 17)

See:

F-60/07 Martin Bermejo v Commission [2007] ECR-SC I-A-1-0000 and II‑A‑1‑0000, para. 25

2. Only measures producing binding legal effects of such a kind as to affect the applicant’s interests by bringing about a distinct change in his legal position constitute acts adversely affecting him, and such measures are those which definitively establish the position of the institution. In the case of a request for reclassification the measure adversely affecting the applicant is the decision appointing him as a probationary official. It is that decision which defines the duties for which the official has been appointed and definitively fixes the corresponding grade.

(see para. 31)

See:

191/84 Barcella and Others v Commission [1986] ECR 1541, para. 11

T‑18/89 and T‑24/89 Tagaras v Court of Justice [1991] ECR II‑53, para. 38; T‑43/04 Fardoom and Reinard v Commission [2005] ECR‑SC I‑A‑329 and II‑1465, para. 26; T-44/04 Kimman v Commission [2006] ECR-SC I‑A‑2‑71 and II‑A‑2‑299, para. 40

3. The time-limits laid down in Articles 90 and 91 of the Staff Regulations for lodging complaints and appeals are mandatory and cannot be left to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain. Any exceptions to or derogations from those time-limits must be interpreted restrictively.

Although the existence of a substantial new fact can justify a request for reconsideration of an earlier decision which was not challenged within the prescribed period, the measures adopted by one Community institution in favour of a particular group of persons constitute, in the absence of any legal obligation under the Staff Regulations, measures which cannot be relied on in support of an allegation of infringement of the principle of equal treatment in relation to another institution.

(see paras 32, 35, 37)

See:

127/84 Esly v Commission [1985] ECR 1437, para. 10; C‑193/87 and C‑194/87 Maurissen and Union syndicale v Court of Auditors [1999] ECR I‑95, paras 26 and 27; C-246/95 Coen [1997] ECR I‑403, para. 21

T-131/95 Progoulis v Commission [1995] ECR-SC I‑A‑297 and II‑907, para. 36; T-113/95 Mancini v Commission [1996] ECR‑SC I‑A‑185 and II‑543, para. 20; T‑219/02 and T‑337/02 Lutz Herrera v Commission [2004] ECR-SC I‑A‑319 and II‑1407, para. 110; T‑368/03 De Bustamante Tello v Council [2005] ECR-SC I‑A‑321 and II‑1439, para. 70; T-156/05 Lantzoni v Court of Justice [2006] ECR‑SC I‑A‑2‑189 and II‑A‑2‑969, para. 104