JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

29 September 2011





Case F-93/05





Harald Mische

v

European Parliament

(Civil service – Appointment – Recruitment and simultaneous transfer to another institution – Grading under new, less favourable rules – Admissibility of the action – Interest in bringing an action – Action out of time)

Application: brought under Articles 236 EC and 152 EA, in which Mr Mische seeks, first, annulment of the Parliament’s decision of 4 October 2004 determining his grade to be A*6, step 1, second, reinstatement of all his rights deriving from the correct grading and, lastly, the award of damages.

Held: The action is dismissed. Each party is ordered to bear its own costs. The Council, which intervened, is ordered to bear its own costs.

Summary

1. Officials – Actions – Interest in bringing proceedings – Action for annulment directed against a classification decision – Recruitment and simultaneous transfer of an official – Attribution of classification decision

(Staff Regulations, Arts 29(1)(b), 90 and 91)

2. Officials – Actions – Prior administrative complaint – Date when lodged

(Staff Regulations, Art. 90(2))

3. Officials – Actions – Prior administrative complaint – Point when time limit for lodging starts to run

(Staff Regulations, Art. 90(2))

1. The purpose of an action must exist at the time at which the action is brought, failing which it will be inadmissible, and must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it. Those conditions are not met by an action for annulment directed against the Parliament’s decision classifying an official, where it is apparent that that classification was determined in the Parliament’s decision to recruit the official concerned and simultaneously to transfer him to the Commission, that that recruitment was only carried out at the express request of the Commission, solely in order to fill, in accordance with Article 29(1)(b) of the Staff Regulations, a vacant post within the Commission’s departments, that the Commission, moreover, took an active part in determining the official’s grade and step and in setting his actual date of recruitment, and that the Commission also subsequently specified, in its assignment decision, the grading of the post to which the official concerned was transferred and altered his step within that grade. That being so, the Commission’s decision replaced, in those respects, that of the Parliament, without the latter decision ever having been implemented in that regard, since the two decisions entered into force on the same day and the official concerned had not worked for the Parliament. Moreover, the official concerned would not have been transferred to the Commission unless the Parliament had determined his grade to be the same as that determined by the Commission.

It follows that, at least so far as the official’s grade and step are concerned, the Parliament’s decision is only formally attributable to it, since that classification was, in reality, determined by the Commission.

(see paras 23-25, 27)

See:

17 April 2008, C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission, para. 25

2. As regards the determination of the date when a prior administrative complaint is lodged, Article 90(2) of the Staff Regulations is to be interpreted as meaning that a complaint is ‘lodged’ not when it is sent to the institution, but when the institution receives it. With regard to the date on which the three-month time limit expires, the period provided for in Article 90(2) of the Staff Regulations expires at the end of the day which, in the third month, bears the same number as the day of the event or measure from which time was set running.

(see para. 29)

See:

26 November 1981, 195/80 Michel v Parliament, paras 8 and 13; 15 January 1987, 152/85 Misset v Council, paras 8 and 9

13 December 2007, F-73/06 Van Neyghem v Commission, paras 43 and 45

3. The three-month time limit which, according to Article 90(2) of the Staff Regulations, normally runs from the date of notification of the decision to the person concerned and in no case later than the date on which the person concerned received such notification must be interpreted as meaning that the period runs from the day on which the official became aware of the reasoning and content of the operative part of the decision, even if through the intermediary of an institution which was not the author of that decision.

(see para. 30)

See:

3 June 1997, T-196/95 H v Commission, para. 31