CELEX: 62008FO0040
Language: en
Date: 2009-02-03 00:00:00
Title: Order of the Civil Service Tribunal (First Chamber) of 3 February 2009. # Daniela Paula Carvalhal Garcia v Council of the European Union. # Public service - Action out of time - Manifest inadmissibility. # Case F-40/08.

ORDER OF THE CIVIL SERVICE TRIBUNAL 
      (First Chamber)
      3 February 2009
      Case F-40/08
      Daniela Paula Carvalhal Garcia
      v
      Council of the European Union
      (Civil service – Former officials – Remuneration – Education allowance – Refusal to grant – Action out of time – Manifest inadmissibility)
      Application: brought under Articles 236 EC and 152 EA, in which Mrs Carvalhal Garcia seeks, in particular, annulment of the decision of
         the Deputy Secretary General of the Council of 16 November 2007 rejecting her complaint against the decision to withdraw the
         education allowance which she received for her daughter.
      
      Held: The action is dismissed as manifestly inadmissible. The applicant is to pay all the costs.
      
      Summary
      Procedure – Decision taken by way of reasoned order – Conditions – Appeal manifestly inadmissible or manifestly lacking any
            legal basis – Prior administrative complaint out of time
      (Rules of Procedure of the Civil Service Tribunal, Art. 76; Staff Regulations, Arts 90 and 91)
      Where an action is manifestly inadmissible, the possibility provided for in Article 76 of the Rules of Procedure of the Civil
         Service Tribunal of giving a decision by reasoned order without taking further steps in the proceedings does not apply solely
         in cases where the failure to observe the rules on admissibility is so clear and flagrant that no reasonable argument can
         be relied on in favour of admissibility, but also in cases where, upon reading the file, the Court 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, in particular because that application fails to observe the requirements laid down by settled case-law,
         and it further considers that the holding of a hearing would be unlikely to provide any new information whatsoever in that
         respect. In such a case, the dismissal of the application by reasoned order not only benefits procedural economy, but also
         saves the parties the costs entailed by the holding of a hearing.
      
      That is true where an official, disregarding the settled case-law according to which the admissibility of an action is subject
         to compliance with the prior administrative procedure laid down in Articles 90 and 91 of the Staff Regulations, particularly
         as regards time-limits, and even though that rule is a matter of public policy, since the time-limits are not for the parties
         or the Court to decide, submits a mere request, rather than a complaint, against an act adversely affecting him, or lodges
         a complaint within the time-limit against a purely confirmatory act, or brings an action out of time following rejection of
         his complaint.
      
      Excusable error, which constitutes a possible exception to or derogation from those time-limits, must be interpreted narrowly
         and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been
         such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence
         required of a normally well-informed person. That is not true where the administration sends the complainant an email clearly
         stating that it had to apply the rules in force, however strict, and informing him that his case was again to be referred
         to experts, but without dissuading him from using the legal remedies available to challenge the decision adversely affecting
         him or the rejection decision, or creating confusion as to the time-limits for those remedies, or suggesting that those time-limits
         might be extended.
      
      The mere fact that the applicant has his own interpretation of how events unfolded and of the legal nature of the measures
         taken and the emails exchanged cannot be taken to suggest implied reliance on excusable error, otherwise the Tribunal would
         have to seek such error in almost every case where there was a question of admissibility and in which the applicant’s interpretation
         was not accepted.
      
      (see paras 13, 14, 16-21, 23-25)
      See:
      227/83 Moussis v Commission [1984] ECR 3133, para. 12; C‑154/99 P Politi v European Training Foundation [2000] ECR I‑5019, para. 15
      
      T-34/91 Whitehead v Commission [1992] ECR II‑1723, para. 18; T‑112/94 Moat v Commission [1995] ECR-SC I‑A‑37 and II‑135, para. 20; T-6/94 A v Parliament [1996] ECR-SC I‑A‑191 and II‑555, paras 52 to 54; T-312/00 Tavares v Commission [2001] ECR‑SC I‑A‑75 and II‑367, para. 23; T-186/01 Robert v Parliament [2003] ECR-SC I‑A‑131 and II‑631, paras 52, 53, 54 and the case-law cited therein, 55 and 56; T-95/04 Lavagnoli v Commission [2006] ECR‑SC I‑A‑2‑121 and II‑A‑2‑569, para. 41
      
      F-87/06 Manté v Council [2007] ECR-SC I-A-1-0000 and II-A-1-0000, paras 16 and 18