JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

5 November 2008

Case F-48/06

Eric Avanzata and Others

v

Commission of the European Communities

(Civil service – Contract staff – Classification and remuneration – Persons formerly employed under Luxembourg law)

Application: brought under Articles 236 EC and 152 EA, in which Mr Avanzata and 20 other members of the Commission’s contract staff seek annulment of the decisions of the head of the Personnel Unit of the Office for Infrastructure and Logistics in Luxembourg determining their conditions of employment, in particular, their function groups, grades, steps and remuneration.

Held: The action is dismissed. The parties are to bear their own costs.

Summary

1. Procedure – Time-limit for producing evidence – Article 42 of the Rules of Procedure of the Civil Service Tribunal

(Rules of Procedure of the Court of First Instance, Arts 46(1)(d), 48(1) and 66(2); Rules of Procedure of the Civil Service Tribunal, Arts 39(1)(e), 42 and 58(5))

2. Procedure – Application initiating proceedings – Formal requirements – Failure to produce the contested measure

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Court of First Instance, Art. 44(3) to (6))

3. Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Art. 90(2); Conditions of Employment of Other Servants, Art. 117)

4. Officials – Actions – Prior administrative complaint – Date of submission – Receipt by the administration

(Staff Regulations, Art. 90(2); Conditions of Employment of Other Servants, Art. 117)

5. Officials – Conditions of Employment of Other Servants of the European Communities – Application of Title IV, concerning contract staff, not subject to the prior adoption of the description of functions and responsibilities covering each type of duty characterising the various function groups for those staff

(Conditions of Employment of Other Servants, Art. 80(2) and (3), and Title IV; Council Regulation No 723/2004)

6. Officials – Contract staff – Remuneration – Compensation for the reduction in remuneration for staff previously employed under a contract governed by national law

(Conditions of Employment of Other Servants, Annex, Art. 2(2))

7. Officials – Representation – Staff Committee

(Staff Regulations, Art. 9(3), first subpara.)

1. Under Article 46(1)(d) of the Rules of Procedure of the Court of First Instance, which is essentially reproduced in Article 39(1)(e) of the Rules of Procedure of the Civil Service Tribunal, offers of evidence must, in principle, be formulated in the defence. However, like Article 48(1) of the Rules of Procedure of the Court of First Instance, Article 42 of the Rules of Procedure of the Civil Service Tribunal provides that the parties may offer further evidence until the end of the hearing, on condition that the delay in offering it is duly justified.

However, evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party are not covered by the time-bar laid down in Article 42 of the Rules of Procedure of the Civil Service Tribunal. That provision concerns offers of fresh evidence and must be read in the light of Article 58(5) of those Rules, reproducing Article 66(2) of the Rules of Procedure of the Court of First Instance, which provides that a party may always submit evidence in rebuttal or amplify previous evidence.

Copies of contract staff contracts with a different content from that of the contracts submitted by the opposite party do not constitute offers of fresh evidence, but evidence in rebuttal of that provided by the opposite party, which is not subject to that time-bar.

(see paras 33-38)

See:

C-185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paras 71 and 72

T-84/92 Nielsen and Møller v ESC [1993] ECR II‑949, para. 39; T‑100/00 Campoli v Commission [2001] ECR-SC I‑A‑71 and II‑347, para. 19; T-303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, para. 189; judgment of 12 September 2007 in T-449/04 Commission v Trends, not published in the ECR, para. 59

2. Although, under Article 21 of the Statute of the Court of Justice and Article 44(4) of the Rules of Procedure of the Court of First Instance, the application is to be accompanied, where appropriate, by the measure the annulment of which is sought, neither the Statute nor the Rules of Procedure state that failure to annex the contested measure to the application automatically results in its inadmissibility. Under Article 44(6) of those Rules of Procedure, if the application does not comply with the requirements set out in Article 44(3) to (5) of the Rules of Procedure, the Registrar will prescribe a reasonable period within which the applicant is to comply with them whether by putting the application itself in order or by producing any of the documents mentioned in those provisions. If the applicant fails to put the application in order or to produce the required documents, the Civil Service Tribunal will decide whether the non-compliance with those conditions renders the application formally inadmissible.

However, in a situation where the Registrar has not asked the applicant to put his application in order or to produce the required documents, there is clearly no provision of the Rules of Procedure of the Court of First Instance which prevents the Civil Service Tribunal from taking measures of organisation of procedure in order to secure production of the document in question. Moreover, it cannot be inferred from the provisions of Article 44(6) of those Rules of Procedure that an action must be ruled inadmissible solely on the ground that it does not comply with the conditions of Article 44(4) of those Rules, when the applicant has not been invited to supplement his application.

(see paras 48-50)

See:

T-158/03 R Industrias Químicas del Vallés v Commission [2003] ECR II‑3041, para. 44

3. Under Article 90(2) of the Staff Regulations, which applies by analogy to members of the contract staff under Article 117 of the Conditions of Employment of Other Servants, a complaint against an act adversely affecting a person must be lodged within a period of three months which starts to run on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person. For a decision to be duly notified, within the meaning of Article 90(2) of the Staff Regulations, it must not only have been communicated to its addressee, but the addressee must also have been able to have effective knowledge of its content.

However, the fact that a member of the contract staff has been apprised of the content of his contract is not sufficient to set the period of three months running for lodging a complaint. It is from the date of its signature that a contract concluded between a staff member and an institution produces its effects and, therefore, is capable of adversely affecting the staff member, provided that all the details of the contract are fixed.

(see paras 59-62)

See:

5/76 Jänsch v Commission [1976] ECR 1027, para. 10

T-137/99 and T-18/00 Martínez Páramo and Others v Commission [2002] ECR-SC I‑A‑119 and II‑639, para. 56; T-406/03 Ravailhe v Committee of the Regions [2005] ECR-SC I‑A‑19 and II‑79, para. 57; T-311/04 Buendía Sierra v Commission [2006] ECR II‑4137, para. 121

F-60/05 Vande Velde v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, para. 25; F-141/04 Maniscalco v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 25

4. With regard to establishing the date on which a complaint was lodged against a measure adversely affecting an official, as provided for in Article 90(2) of the Staff Regulations, although the placing by the administration of a registration stamp on a document sent to it is not capable of fixing a certain date for the introduction of that document, as an example of sound administrative management, it is at least a means of raising a presumption, until the contrary is proved, that the document reached it on the date indicated. If challenged, it is for the official to offer any evidence capable of rebutting the presumption which arises by virtue of the registration stamp and that the complaint was actually introduced on another date.

(see para. 67)

See:

F-3/05 Schmit v Commission [2006] ECR-SC I‑A‑1‑9 and II‑A‑1‑33, paras 29 and 30

5. The Conditions of Employment of Other Servants and Regulation No 723/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants do not contain any provision which makes the application of Title IV of those Conditions of Employment, concerning contract staff, and of its provisions on their engagement in particular, subject to the adoption of the description of functions and responsibilities set out in Article 80(3) of those Conditions of Employment.

Consequently, it cannot reasonably be argued that a Community institution has infringed the principle of sound administrative management in not precisely describing, in its internal provisions on the engagement and the use of contract staff, the functions and responsibilities covered by each type of duty characterising each of the function groups described in Article 80(2) of the Conditions of Employment of Other Servants.

Moreover, because those internal provisions do not include a description of the functions and responsibilities referred to in Article 80(3) of the Conditions of Employment of Other Servants, there can be no allegation of a procedural irregularity resulting from the failure to consult the Staff Regulations Committee as provided for in Article 80(3).

(see paras 89-93)

See:

F-59/05 De Smedt v Commission [2006] ECR-SC I-A-1-109 and II‑A‑1‑409, para. 52, confirmed by T-415/06 P De Smedt v Commission [2007] ECR‑SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 40

6. It is clear from the wording of Article 2(2) of the Annex to the Conditions of Employment of Other Servants that where a worker previously linked to the institution under an employment contract governed by national law has been engaged as a member of the contract staff, resulting in a reduction in his remuneration compared with what he received under the previous contract, the payment of an additional amount of remuneration is merely an option available to the institution. Moreover, Article 2(2) allows the institution a very broad discretion to fix the additional amount in so far as it must take into account differences between the national fiscal, social security and pension legislation that applied under the previous contract and the rules applicable to the contract staff member.

(see para. 101)

See:

F-24/06 Abarca Montiel and Others v Commission [2007] ECR‑SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 92; F-25/06 Ider and Others v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 92; F-26/06 Bertolete and Others v Commission [2007] ECR‑SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 80

7. While the first subparagraph of Article 9(3) of the Staff Regulations provides that the Staff Committee represents the interests of the staff vis-à-vis their institution, maintains continuous contact between the institution and the staff, and contributes to the smooth running of the service by providing a channel for the expression of opinion by the staff, that provision cannot be construed as creating, for the institution, an obligation to consult the Staff Committee on all measures taken by that institution relating to the running of the service.

(see paras 115-116)