ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 September 1998

Case T-40/98

Giuliano Pagliarani

v

Commission of the European Communities

‛Officials — Determination of grade — New facts — Inadmissibility’

Full text in French II-1555

Application for:

first, annulment of the decision of the appointing authority of 28 October 1993 classifying the applicant in grade B 3, step 3, and of the decision of the appointing authority of 8 December 1997 rejecting the applicant's complaint, inasmuch as it does not take account of certified professional experience and, second, compensation for the material damage allegedly suffered by the applicant as a result of those decisions.

Decision:

Application inadmissible. Applicant ordered to pay all the costs.

Abstract of the Order

The applicant was engaged by the Commission from 1 July 1993 as a member of the temporary staff and provisionally classified in grade B 5, step 1.

On 28 October 1993 the applicant was definitively classified in grade B 3, step 3, with effect from 1 July 1993.

On 3 February 1994 the applicant lodged a complaint under Article 90(2) of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’) with a view to obtaining a change in his classification. He claimed that his military service, together with four years spent at Bologna University and the period spent by him working in the Foschi naval dockyard, should be taken into account as professional experience. That complaint was rejected by decision of the appointing authority of 4 July 1994.

On 31 January 1997 the applicant sent a letter, which he described as a request under Article 90(1) of the Staff Regulations, to the Commission. On 9 June 1997, having received no reply, he sent to the Commission a letter which he described as a complaint under Article 90(2) of the Staff Regulations. The Commission rejected that complaint by letter of 8 December 1997.

Admissibility

The time-limits prescribed by Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of public 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 must be given a restrictive interpretation (paragraph 25).

See: T-16/97 Chauvin v Commission [1997] ECRSC II-681. para. 32

The applicant is seeking annulment of the decisions of 8 December 1997 and 28 October 1993.

The decision of 8 December 1997 confirms the applicant's classification as determined by the decision of 28 October 1993; the only new element of the decision concerns the effect which the new documents produced by the applicant may have on any reopening of the time-limit for lodging a complaint. Since the decision of 8 December 1997 was purely confirmatory, it does not adversely affect the applicant and is not open to challenge (paragraph 28).

See: T-131/95 Progottlis v Commission [1995] ECRSC II-907, para. 35; T-14/91 Weyricli v Commission [1991] ECR II-235, para. 43

The action brought by the applicant is in fact intended solely to procure a review of the decision of 28 October 1993. However, the applicant did not bring an action within the time-limit prescribed by the Staff Regulations contesting the decision rejecting his complaint of 4 July 1994. The decision of 28 October 1993 has therefore become definitive (paragraph 30).

An official cannot be permitted to challenge the conditions of his initial recruitment once the decision establishing those conditions has become definitive. Although, under Article 90(1) of the Staff Regulations, an official may request the appointing authority to take a decision relating to him, that right does not enable him to circumvent the time-limits prescribed by Articles 90 and 91 for lodging complaints and bringing proceedings by indirectly challenging, by means of a request, an earlier decision which was not contested within the due time-limit. Only the existence of new and material facts may justify the submission of a request for a review of such a decision (paragraphs 31 and 32).

See: Progoulis v Commission, cited above, para. 38; Chauvin v Commission, cited above, para. 37; 127/84 Esly v Commission [1985] ECR 1437, para. 10

Even the subsequent discovery by an applicant of a previously existing plea or factor cannot, in principle, be treated as a new fact capable of justifying the reopening of time-limits, without destroying the principle of legal certainty. A fortiori, previously existing pleas or factors which were already known to the applicant cannot constitute new and material facts capable of justifying such a reopening (paragraph 33).

See: T-506/93 Moat v Commission [1995] ECRSC II-147, para. 28; T-78/96 and T-176/96 W v Commission [1998] ECRSC II-0000, para. 68

The applicant has not succeeded in establishing the existence of a single new and material fact justifying a review of the decision of 28 October 1993. Consequently, the claim for annulment must be declared inadmissible (paragraph 39).

The claim for damages

Where a close link exists between a claim for damages and an application for annulment, the inadmissibility of the claim for annulment entails the inadmissibility of the claim for damages. Since that is the position in the present case, the claim for damages is inadmissible (paragraphs 43 and 44).

See: T-5/90 Marcato v Commission [199l]ECR II-731, para. 49; T-11/90 H.S. v Council [1992] ECRII-1869, para. 25; T-112/94 Moat v Commission [1995] ECRSC II-135, para. 30; T-506/93 Moat v Commission, cited above; T-570/93 Bianco v Court of Auditors [1995] ECRSC II-797, para. 42

Costs

The inadmissibility of the action was foreseeable, having regard to the provisions of the Staff Regulations and settled case-law. The present action, which seeks to challenge a decision dating from 1993 which the applicant had already contested in vain but without bringing proceedings, has given rise to needless additional costs. He must therefore be ordered to pay all the costs (paragraph 50).

Operative part:

The application is dismissed as inadmissible.

The applicant is ordered to pay all the costs.