ORDER OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

6 December 2011

Case F‑85/11

Lis Wendelboe

v

European Commission

(Civil service – Officials – Preliminary issues – Objection of inadmissibility – Refusal to promote an official – Transfer between institutions during the promotion year in which the official would have been promoted in his institution of origin – Complaint – Delay – Inadmissibility)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Wendelboe seeks annulment of the Commission’s decision not to promote her to grade AST 5 from 1 March 2009 in the 2009 promotion year.

Held: The action is dismissed as inadmissible. The applicant is to bear all the costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Definition – Decision to withdraw the name of the official concerned from the list of officials eligible for promotion – Included

(Staff Regulations, Art. 90(2))

2. Officials – Actions – Prior administrative complaint – Time limits – Claim barred by lapse of time – Reopening – Condition – New fact – Judgment of a court of the Union – Not included

(Staff Regulations, Arts 90 and 91)

1. A decision to withdraw the name of the official concerned from the list of officials eligible for promotion because of his transfer to another institution constitutes an act adversely affecting him since it produces binding legal effects of such a kind as to affect his interests directly and immediately by bringing about a distinct change in his legal position. In withdrawing an official’s name from the list of officials eligible for promotion, the institution takes a decision which prevents the adoption of any subsequent promotion decision in the promotion year in question, since an official may not be promoted unless his name is first entered on the list of officials eligible for promotion.

(see para. 21)

See:

28 September 2011, F‑26/10 AZ v Commission, paras 83 and 84

2. The time limits laid down by Articles 90 and 91 of the Staff Regulations, which were established in order to ensure that legal positions are clear and certain, are a matter of public policy and are not subject to the discretion of the parties or the Court.

An annulling judgment of a Union court is capable of constituting a new fact allowing the reopening of the time limits for complaint or appeal only in respect of, first, the parties to the proceedings and, second, other persons directly concerned by the annulled measure.

The finding, by a judgment of a Union court, that an administrative decision of general application infringes the Staff Regulations cannot constitute, in respect of officials who have failed to make use in good time of the possible remedies offered by the Staff Regulations, a new fact warranting the submission of a request for reconsideration of individual decisions which the appointing authority has adopted concerning them.

(see paras 26-28)

See:

13 November 1986, 232/85 Becker v Commission, para. 8

9 February 2000, T‑165/97 Gómez de la Cruz Talegón v Commission, para. 51; 17 May 2006, T‑95/04 Lavagnoli v Commission, para. 41

13 December 2007, F‑130/05 Soares v Commission, para. 52; 11 June 2009, F‑81/08 Ketselidou v Commission, paras 46 and 47, and the case-law cited therein; 28 June 2011, F‑128/10 Mora Carrasco and Others v Parliament