ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

5 February 2016

Ingrid Fedtke

v

European Economic and Social Committee (EESC)

‛Civil service — Officials — Automatic retirement — Retirement age — Request to continue in service beyond the age-limit — Second paragraph of Article 52 of the Staff Regulations — Interests of the service — Article 82 of the Rules of Procedure — Absolute bar to proceeding — Failure to follow the pre-litigation procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Ms Fedtke seeks, essentially, annulment of the decision by which the European Economic and Social Committee (EESC) rejected her request to continue in service until the age of 66.

Held:

The action is dismissed as inadmissible. Ms Fedtke will bear her own costs and is ordered to pay the costs incurred by the European Economic and Social Committee.

Summary

Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — Reopening — Condition — New and substantial fact

(Art. 270 TFEU; Staff Regulations, Arts 90 and 91)

The admissibility of an action before the Civil Service Tribunal under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner, and upon the prescribed time-limits for that procedure being complied with.

In this regard, the time-limits for lodging a complaint and bringing an action, which are mandatory and not at the discretion of the parties or the court, are intended to safeguard, within the EU institutions, the legal certainty which is essential for their successful operation, by preventing EU measures which involve legal effects from being called in question indefinitely, and to prevent any discrimination or arbitrary treatment in the administration of justice. Consequently, the possibility of submitting a request as provided for in Article 90(1) of the Staff Regulations does not allow an official to set aside the time-limits laid down in Article 90 and Article 91 of the Staff Regulations for the lodging of a complaint and the bringing of an action by indirectly calling in question, by means of that later request, a previous decision which had not been challenged within the time-limits.

Only the existence of new and substantial facts can justify the submission of a request for reconsideration of a decision which was not challenged within the time-limits laid down by Article 90 and Article 91 of the Staff Regulations.

In order for a fact to be new, it is essential that neither the applicant nor the administration was aware of, or in a position to be aware of, the fact in question when the previous decision, which has become definitive, was adopted. In order to be substantial, the fact concerned must be capable of substantially altering the applicant’s situation forming the basis of the initial request which gave rise to the previous decision which has become definitive.

(see paras 18-21)

See:

Judgment of 6 July 2004 in Huygens v Commission, T‑281/01, EU:T:2004:207, para. 126

Judgment of 25 February 2015 in Walton v Commission, T‑261/14 P, EU:T:2015:110, para. 37

Judgment of 12 March 2009 in Lafleur Tighe v Commission, F‑24/07, EU:F:2009:24, paras 56 and 57; orders of 22 April 2015 in ED v ENISA, F‑105/14, EU:F:2015:33, para. 27, and 22 June 2015 in van Oudenaarden v Parliament, F‑139/14, EU:F:2015:64, paras 24 and 25 and the case-law cited therein