CELEX: 62011FO0122
Language: en
Date: 2012-11-23 00:00:00
Title: Order of the Civil Service Tribunal (Second Chamber) of 23 November 2012. # Dragos-Lucian Vacarescu v European Commission. # Civil service - Lateness - Manifest inadmissibility. # Case F-122/11.

ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
      23 November 2012 (*)
      
      (Civil service – Lateness – Manifest inadmissibility)
      In Case F‑122/11,
      ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
      Dragos-Lucian Vacarescu, official of the European Commission, residing in Brussels (Belgium), represented by R.-C. Radu, lawyer,
      
      applicant,
      v
      European Commission,
      defendant,
      THE CIVIL SERVICE TRIBUNAL (Second Chamber)
      composed of M. I. Rofes i Pujol (Rapporteur), President, I. Boruta and K. Bradley, Judges, 
      Registrar: W. Hakenberg,
      makes the following
      Order
      1        By application received at the Civil Service Tribunal Registry on 17 November 2011, Mr Vacarescu brought the present action
         for annulment of the decision of the European Commission of 18 April 2011 by which he was refused the payment of the daily
         allowance provided for in Article 10 of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff
         Regulations’).
      
       Legal context
      2        Under Article 91(3) of the Staff Regulations: 
      
      ‘Appeals under paragraph 2 shall be filed within three months. The period shall start to run: 
      –        on the date of notification of the decision taken in response to the complaint; 
      –        …’
      3        Article 10 of Annex VII to the Staff Regulations, as amended by Council Regulation (EU) No 1239/2010 of 20 December 2010 adjusting
         with effect from 1 July 2010 the remuneration and pensions of officials and other servants of the European Union and the correction
         coefficients applied thereto (OJ 2010 L 338, p. 1), provides as follows: 
      
      ‘1.      Where an official furnishes evidence that a change in the place of residence is required in order to comply with Article 20
         of the Staff Regulations, such official shall be entitled for a period specified in paragraph 2 of this Article to a subsistence
         allowance per calendar day as follows: 
      
      Official entitled to receive household allowance: EUR [39,17]. 
      Official not entitled to the household allowance: EUR [31,58]. 
      The above scale shall be reviewed each time remunerations are revised pursuant to Article 65 of the Staff Regulations. 
      2.      The period in respect of which the daily subsistence allowance is granted shall be as follows:
      (a)      in the case of an official who is not entitled to the household allowance: 120 days;
      (b)      in the case of an official who is entitled to the household allowance: 180 days or, if the official is a probationer, the
         period of probation plus one month. 
      
      In cases where a husband and wife who are officials or other servants of the European [Union] are both entitled to the basic
         subsistence allowance, the period in respect of which it is granted as laid down in (b) shall apply to the person whose basic
         salary is the higher.  The period laid down in (a) shall apply to the other person. 
      
      In no case shall the daily subsistence allowance be granted beyond the date on which the official removes in order to satisfy
         the requirements of Article 20 of the Staff Regulations.’ 
      
      4        Under Article 100 of the Rules of Procedure:
      
      ‘…
      2.      If [a] period [granted for matters of procedure] would otherwise end on a Saturday, Sunday or official holiday, it shall be
         extended until the end of the first following working day.
      
      …
      3.      The prescribed time-limits shall be extended on account of distance by a single period of 10 days.’
       Background to the dispute
      5        The applicant was appointed as a probationary official in grade AST 1 at the Commission by a decision of 14 February 2011
         and took up his duties in Brussels on 16 February 2011.  Until 30 November 2010, he worked in Bucharest (Romania). 
      
      6        Since 1 February 2010, the applicant’s spouse has been working in the same institution as a contractual agent.  She completed
         a probationary period of nine months, during which time she received the daily allowance.
      
      7        Since 1 February 2011, the applicant and his spouse have been renting an apartment in Brussels.
      
      8        The applicant’s remuneration was determined by a decision of the Commission of 18 April 2011.  In that decision, it is stated
         that he is not entitled to the daily allowance.
      
      9        The applicant contested that decision by an appeal filed by e-mail of 6 May 2011, in which he applied for payment to him of
         a daily allowance for 120 days in accordance with Article 10(2)(a) of Annex VII to the Staff Regulations. The appeal was dismissed
         by a decision of the Appointing Authority of 4 August 2011, which the applicant received on the following day. 
      
       Form of order sought
      10      The applicant claims that the Court should:
      
      –        annul the decision of 18 April 2011 in so far as it refuses him payment of the daily allowance provided for in Article 10(1)
         of Annex VII to the Staff Regulations;
      
      –        rule that the Commission must pay him the daily allowance with interest from the date on which that allowance ought to have
         been paid to him; 
      
      –        order the Commission to pay the costs. 
       The Tribunal’s decision to give its ruling by way of reasoned order
      11      Under Article 76 of the Rules of Procedure of the Tribunal, where an action is, in whole or in part, manifestly inadmissible,
         the Tribunal may, without taking further steps in the proceedings, give a decision by way of reasoned order. 
      
      12      It is settled case-law that, if, upon reading a case-file, the Chamber hearing the case, provided that it considers itself
         to be sufficiently informed by the documents before it, is entirely convinced of the inadmissibility of the application and
         further considers that the holding of a hearing would be unlikely to provide any new information whatsoever in that respect,
         the dismissal of the application by reasoned order on the basis of Article 76 of the Rules of Procedure not only benefits
         procedural economy, but also saves the parties the costs entailed by the holding of a hearing (see order of 25 April 2012
         in Case F‑108/11 Oprea v Commission, paragraph 12, and the case-law cited). 
      
      13      In the present case, the Tribunal considers itself to be sufficiently informed by the documents produced by the applicant
         and decides, pursuant to the abovementioned provision and even before the application has been served on the defendant, to
         give its ruling by way of reasoned order, without taking further steps in the proceedings (order of 29 June 2010 in Case F-11/10
         Palou Martínez v Commission, paragraphs 26 and 27).  
      
       Law
      14      It must be borne in mind that, under Article 91(3) of the Staff Regulations, an action must be filed ‘within three months,
         [which] period is to begin on the date of notification of the decision taken in response to the complaint’. Under Article 100(3)
         of the Rules of Procedure, ‘the prescribed time-limits are to be extended on account of distance by a single period of 10
         days’.  Furthermore, in accordance with settled case-law, the periods for lodging complaints and bringing actions referred
         to in Articles 90 and 91 of the Staff Regulations are matters of public policy and cannot be left to the discretion of the
         parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with (judgment of
         29 June 2000 in Case C‑154/99 P Politi v Fondation européenne pour la formation, paragraph 15; order of 15 January 2009 in Case T‑306/08 P Braun-Neumann v Parliament, paragraph 36; judgment of 12 May 2010 in Case F‑13/09 Peláez Jimeno v Parliament, paragraph 18).
      
      15      It is apparent from the application that the decision of 4 August 2011 by which the Appointing Authority rejected the claim
         against the decision of 18 April 2011 establishing the applicant’s remuneration was served on the applicant on 5 August 2011,
         so that the period of three months increased by 10 days within which to bring the action expired on Tuesday, 15 November 2011.
         Consequently the action, brought only on 17 November 2011, must be dismissed as manifestly inadmissible because filed out
         of time. 
      
       Costs
      16      Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those
         Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         Under Article 89(3) of those Rules, if costs are not applied for, the parties are to bear their own costs. 
      
      17      Since this order has been made before the defendant has been served with the application and before it could have incurred
         any costs, it is appropriate to order, pursuant to Article 89(3) of the Rules of Procedure, that the applicant must bear his
         own costs. 
      
      On those grounds,
      THE CIVIL SERVICE TRIBUNAL (Second Chamber)
      hereby orders:
      1.      The action is dismissed.
      2.      Mr Vacarescu shall bear his own costs.
      Luxembourg, 23 November 2012.
      
               W. Hakenberg 
            
             
            
                     M.I. Rofes i Pujol
            
         
               Registrar 
            
             
            
                     President
            
         * Language of the case: English.