JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 February 1998

Case T-142/96

Anne-Marie Toller

v

Commission of the European Communities

‛Officials — Opinion of the Medical Committee — Incompetence — Decision ordering removal from post — Request for reconsideration — Material new fact — Expiry of prescribed period — Admissibility’

Full text+ in French II-179

Application for:

annulment of the decision of the Commission refusing to re-examine the decision of 1 July 1993 whereby the applicant was removed from her post for incompetence.

Decision:

Application inadmissible.

Abstract of the Judgment

Until 30 September 1993 the applicant was a Grade C 5 official in the Directorate-General for Personnel and Administration (DGIX) of the Commission.

In disciplinary proceedings opened against the applicant on 4 September 1990 the Medical Committee, consisting of Dr Sternon, appointed by the Commission, Dr Antoine, appointed by the applicant, and Dr Marneffe, appointed by common agreement between the first two doctors, was requested to deliver an opinion on the total permanent invalidity alleged by the applicant and the medical origin of her absences during 1990 and 1991. The Committee heard the applicant at a meeting on 6 January 1992 and delivered its unanimous opinion on 25 May 1992 that ‘no medical reason providing grounds for total permanent invalidity [had] been found’, ‘there [was] no evidence of any seriously incapacitating pathology’ and ‘consequently, there was no medical justification for the prolonged periods of absence (in particular in 1990 and 1991)’.

By decision of 1 July 1993 the appointing authority removed the applicant from her post without reducing or withdrawing her entitlement to retirement pension, with effect from 1 October 1993 (decision of 1 July 1993).

In ordering the applicant's removal from her post the appointing authority took account of the fact that disciplinary measures had been imposed on the applicant on two previous occasions, namely relegation in step by two steps and downgrading from Grade C 4 to Grade C 5, and also of her incompetence owing to her periods of absence in 1990 and 1991.

By decision of 23 September 1994 the applicant was awarded permanent partial invalidity of 2% as a result of an accident on 19 April 1993. By decision of 24 November 1994 she was awarded permanent partial invalidity of 3% as a result of an accident on 19 March 1990. By decision of 19 December 1994 she was awarded permanent partial invalidity of 1% as a result of an accident on 5 April 1991.

On 15 September 1995 the applicant submitted a request to the Commission for a review of the decision of 1 July 1993 removing her from her post. This request was expressly rejected by the Commission on 16 November 1995. On 13 February 1996 and applicant submitted a complaint against that decision, which was the subject of an express decision rejecting it.

Admissibility

The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of pubic policy and are not subject 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 are to be interpreted restrictively (paragraph 45).

See: T-131/95 Prougoulis v Commission [1995] ECRSC II-907, para. 36; T-l 13/95 Mantini v Commission [1996] ECRSC II-543, para. 20; C-246/95 Coen v Belgian State [1997] ECR I-403, para. 21; T-16/97 Chauvin v Commission [1997] ECRSC II-681, para. 32

It is common ground that the applicant failed to submit a complaint in respect of the decision of 1 July 1993 within the three-month period laid down in Article 90(2) of the Staff Regulations. That decision therefore became final on expiry of the period prescribed for lodging a complaint, namely on 2 October 1993, since the applicant acknowledged in her request of 15 September 1993 that the decision of 1 July 1993 had been notified to her on 2 July 1993 (paragraph 46).

It is apparent from the applicant's pleadings and from her statements at the hearing that the real purpose of her action is to have the decision of 1 July 1993 reconsidered (paragraph 47).

Although Article 90(1) of the Staff Regulations provides that any official may request the appointing authority to take a decision relating to him, that right does not allow an official to set aside the time-limits laid down in Articles 90 and 91 for submitting a complaint and for bringing an action by indirectly calling in question by means of a request a previous decision which has not been challenged within the period prescribed. Only the existence of new material facts may justify the submission of a request for a review of such a decision (paragraph 48).

See: 127/84 Esly v Commission [1985] ECR 1437, para. 10; Chauvin v Commission, cited above, para. 37

It was for the Medical Committee to reach a decision on the permanent total invalidity alleged by the applicant and, in that context, on any valid medical grounds which might have existed for her absences in 1990 and 1991. The decision of 1 July 1993 is based on the Medical Committee's decision of 25 May 1992. It follows that the applicant's criticisms of the Medical Committee's opinion and, in so far as they concern the medical assessment of her state of health, her criticisms of the decision of 1 July 1993, on the basis of what she describes as material new facts, are relevant only in so far as they relate to 1990 and 1991 (paragraph 49).

Medical appraisals, properly so-called, of the Medical Committee must be regarded as definitive provided that there was no irregularity in the conditions under which they were made and the Court's review of such appraisals is confined to ascertaining that the Committee was constituted and its opinions issued in accordance with the relevant rules. In the present case the applicant has never called in question the lawfulness of the conditions in which the Medical Committee delivered its opinion of 25 May 1992 (paragraph 50).

See: 265/83 Suss v Commission [1984] ECR 4029, paras 9 to 15; T-154/89 Vidrányi v Commission [1990] ECR II-445, para. 48; T-88/91 F. v Commission [1993] ECR II-13, para. 39; T-556/93 Saby v Commission [1995] ECRSC II-375, para. 35

It is apparent upon examining the various matters on which the applicant relied following the submission of her request on 15 September 1995 that they are not capable of establishing the existence of a material new fact capable of justifying reconsideration of the decision of 1 July 1993. The applicant is therefore debarred from challenging that decision (paragraphs 52 to 67).

Furthermore, if the point needed to be made, since the applicant seeks to have the decision of 1 July 1993 reconsidered in the light of what she claims are material new facts, the act whereby she requested the Commission on 15 September 1995 to revise its decision of 1 July 1993 is in fact a complaint within the meaning of Article 90(2) of the Staff Regulations, irrespective of what label the parties may have attached to it (paragraph 68).

Although the Community judicature has not yet had the opportunity to give a specific ruling on the precise period within such a request to reconsider a decision which has become final must be submitted, there are nevertheless a number of indications that the period in question corresponds to the period for submitting a complaint laid down in Article 90(2) (paragraph 69).

Although it is possible, on the basis of a material new fact, to have the periods prescribed in Articles 90 and 91 of the Staff Regulations for challenging a decision which has become final reopened, the reopening of those periods cannot lead to longer periods being permitted. Such a solution would constitute objectively unjustified discrimination between an applicant submitting a complaint against a decision which has not yet become final, who observes the time-limit laid down in Article 90(2), and one submitting a complaint against a decision which has become final, in the form of a request to reconsider the decision on the ground that new facts have occurred (paragraph 73).

See: T-87/91 Boessen v ESC [1993] ECR II-235, para. 28; Prougoulis v Commission, cited above, paras 39 and 50; Chauvin v Commission, cited above, paras 44 and 53

Legal certainty requires that the point at which time begins to run must correspond to the date on which the material new fact on which the applicant relies to justify reconsideration of the decision adversely affecting him occurred or the date on which he actually became aware of the existence ofthat fact (paragraph 74).

See: Boessen v ESC, cited above, para. 28

Since a request to reconsider a decision must be classified as a complaint, it must be submitted within three months from the occurrence of the material new fact on which the official relies or from the time when he actually became aware of the existence of that fact, since the period laid down in Article 90(2) of the Staff Regulations within which a complaint against a decision adversely affecting an official is to be submitted is three months (paragraph 75).

In the present case it is quite clear that on the construction most favourable to the applicant the most recent matter on which she relied when submitting her request of 15 September 1995 for reconsideration of the decision was the medical report drawn up by Dr Marichal on 17 May 1995. On any view, therefore, more than three months elapsed between the time when she became aware of the alleged material new facts on which she relies and the time when she submitted the complaint (paragraph 76).

Operative part:

The application is dismissed as inadmissible.