CELEX: 62007FO0101
Language: en
Date: 2008-05-22 00:00:00
Title: Order of the Civil Service Tribunal (First Chamber) of 22 May 2008. # Philippe Cova v Commission of the European Communities. # Civil service - Officials - Remuneration - Article 7(2) of the Staff Regulations - Interim allowance - Inadmissible. # Case F-101/07.

ORDER OF THE CIVIL SERVICE TRIBUNAL 
      (First Chamber)
      22 May 2008 
      Case F-101/07
      Philippe Cova
      v
      Commission of the European Communities 
      (Civil service – Officials – Remuneration – Article 7(2) of the Staff Regulations – Interim allowance – Inadmissible)
      Application: brought under Articles 236 EC and 152 EA, in which Mr Cova seeks annulment of the decision of 29 June 2007 of the appointing
         authority of the Commission, in so far as that decision does not grant him for a duration of more than one year the allowance
         provided for in Article 7(2) of the Staff Regulations.
      
      Held: The action is dismissed as inadmissible. The parties are to bear their own costs.
      
      Summary
      Procedure – Admissibility of pleadings – Assessment at the time when the pleading is submitted 
      (Rules of Procedure of the Court of First Instance, Art. 114; Rules of Procedure of the Civil Service Tribunal, Art. 78)
      Where a plea of inadmissibility relates to an application lodged at the Registry of the Civil Service Tribunal before the
         date of entry into force of its own Rules of Procedure, the procedural rules referred to in Article 78 of the Rules of Procedure
         of the Civil Service Tribunal, in particular that laid down by paragraph 3 of that article, which empowers the Tribunal to
         decide by way of order not going to the substance of the case, together with the rules on admissibility of the application
         to which Article 114 of the Rules of Procedure of the Court of First Instance referred, applicable mutatis mutandis to the Tribunal pending the entry into force of its Rules of Procedure, must be applied.
      
      As the time allowed for submitting a plea of inadmissibility begins to run, whether under Article 114 of the Rules of Procedure
         of the Court of First Instance or under Article 78 of the Rules of Procedure of the Civil Service Tribunal, from the service
         of the application, where such service was effected before the entry into force of the Rules of Procedure of the Civil Service
         Tribunal, the period to be observed is necessarily that which was then in force, laid down by the Rules of Procedure of the
         Court of First Instance. Thus, in accordance with the principle of legal certainty, the entry into force of the Rules of Procedure
         of the Civil Service Tribunal could not have the effect in law of reducing the period, which had already begun to run on the
         date when they came into force, for the lodging of a plea by separate document.
      
      The relevant date for verifying observance of the prescribed period is the date on which the plea of inadmissibility is lodged
         with the Civil Service Tribunal, and not that of service of that plea on the applicant.
      
      (see paras 23, 25, 26)
      See:
      T-47/92 Lenz v Commission [1992] ECR II‑2523, para. 34
      
      F-16/05 Falcione v Commission [2006] ECR-SC I‑A‑1‑3 and II‑A‑1‑7, para. 84; F-82/06 Duyster v Commission [2007] ECR-SC I‑A-1-0000 and II-A-1-0000, para. 40; F-80/06 Duyster v Commission [2008] ECR-SC I‑A-1-0000 and II-A-1-0000, paras 38 to 43
      
ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
      22 May 2008 (*)
      
      (Civil service – Officials – Remuneration – Article 7(2) of the Staff Regulations – Interim allowance – Inadmissible)
      In Case F‑101/07,
      ACTION under Articles 236 EC and 152 EA,
      Philippe Cova, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by S.A. Pappas, lawyer,
      
      applicant,
      v
      Commission of the European Communities, represented by J. Currall and B. Eggers, acting as Agents,
      
      defendant,
      THE TRIBUNAL (First Chamber),
      composed of H. Kreppel, President, H. Tagaras (Rapporteur) and S. Gervasoni, Judges,
      Registrar: W. Hakenberg,
      makes the following
      Order
      1        By application lodged at the Registry of the Tribunal on 3 October 2007 by fax (the original being lodged on 5 October 2007),
         Mr Cova seeks the annulment of the decision of 29 June 2007 of the appointing authority of the Commission of the European
         Communities, in so far as that decision does not grant him, for a duration of more than one year, the allowance provided for
         in Article 7(2) of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’).
      
       Legal context
      2        Under Article 7(2) of the Staff Regulations: 
      
      ‘An official may be called upon to occupy temporarily a post in a grade in his function group which is higher than his substantive
         grade. From the beginning of the fourth month of such temporary posting, he shall receive a differential allowance equal to
         the difference between the remuneration carried by his substantive grade and step, and the remuneration he would receive in
         respect of the step at which he would be classified if he were appointed to the grade of his temporary posting. 
      
      The duration of a temporary posting shall not exceed one year, except where, directly or indirectly, the posting is to replace
         an official who is seconded to another post in the interests of the service, called up for military service or absent on protracted
         sick leave.’
      
      3        Article 4 of the Commission Decision of 28 April 2004 laying down rules for implementing Article 7(2) of the Staff Regulations
         as regards temporary management posts (Administrative Notice No 83-2004 of 28 June 2004, ‘the decision of 28 April 2004’), provides:
      
      ‘Decisions to temporarily fill a post as head of unit shall be taken after consulting the Joint Committee.’ 
      4        According to the third paragraph of Section I of the Annex to the decision of 28 April 2004, to which Article 5 of that decision
         refers, temporary posting is proposed to the appointing authority after the Directorate-General for Personnel and Administration
         has examined the application.
      
      5        Under Article 38(d) of the Staff Regulations: 
      
      ‘An official on secondment pursuant to the first indent of Article 37(a) shall be entitled to a salary differential where
         the total remuneration carried by the post to which he is seconded is less than that carried by his grade and step in his
         parent institution …’ 
      
      6        Under the second paragraph of Article 44 of the Staff Regulations, if an official is appointed head of unit, provided that
         he has performed his new duties satisfactorily during the first nine months, he is to benefit from advancement in step in
         that grade with effect from the time of the appointment. This advancement entails, as a general rule, an increase in his basic
         monthly salary corresponding to the percentage between the first and the second step in each grade. This financial advantage
         is generally called a ‘management premium’ (‘management premium’).
      
       Facts
      7        From 1 August 2004 to 31 December 2005, the applicant, an official in Grade AD 12, step 4, was temporary head of unit in the
         ‘Youth’ unit of the Directorate-General for Education and Culture. It is common ground that during that period the applicant
         did not receive the differential allowance provided for by Article 7(2) of the Staff Regulations (‘the interim allowance’).
      
      8        On 1 January 2006, the applicant was seconded to the Agency for Education, Audiovisual and Culture set up by decision of the
         Commission of 14 January 2005 (OJ 2005 L 24, p. 35, ‘the Agency’) to act as head of unit P6 ‘Youth’. The grade for this post
         was fixed by the Agency at AD 11, step 2. However, the applicant continued to receive the salary for the grade he held at
         the Commission, Grade AD 12, step 4. None of his salary statements, until November 2006 inclusive, showed payment of the differential
         payment provided for in Article 38(d) of the Staff Regulations (‘the secondment allowance’). 
      
      9        From October 2006 and with retrospective effect from 1 January 2006, the Office for Administration and Payment of Individual
         Entitlements (PMO) paid the applicant the management premium. That premium was calculated on the basis of the basic salary
         which the applicant received at the Commission and which he continued to receive at the Agency, that is to say, the basic
         salary for Grade AD 12, step 4. 
      
      10      In December 2006, the PMO made a recalculation of the applicant’s salary, the result of which appeared in the salary statement
         for that month.  First, the PMO departed from its previous, erroneous, practice, and took into account in that calculation,
         not the basic salary which the applicant received at the Commission, but the basic salary which he should have received at
         the agency since his assignment there, that is to say, the basic salary for Grade AD 11, step 2.  Second, as a consequence,
         the PMO made a fresh calculation of the components of the applicant’s salary, as the basis of calculation for contributions,
         deductions and allowances had changed. In particular, the management premium was calculated on the basis of Grade AD 11, step
         2, rather than Grade AD 12, step 4. As the applicant’s monthly remuneration as thus recalculated was then less than he would
         have received at the Commission (including the part relating to advancement in grade or step), the PMO granted him entitlement
         to the secondment allowance amounting to EUR 475.81, which represented the difference between the remuneration paid by the
         Agency, including the management premium, and the remuneration the applicant would have received at the Commission. 
      
      11      Following that recalculation and despite the payment of the secondment allowance, the applicant’s monthly remuneration was
         EUR 241.73 less than that for November 2006. The PMO also decided, as is apparent from the salary statement for December 2006,
         to adjust in the same direction and retroactively the remuneration paid to the applicant since 1 January 2006 and to recover
         the sums unduly paid since that date, amounting to EUR 2 326.87.
      
      12      On 8 March 2007, the applicant made two complaints about the recalculation of his remuneration, pursuant to Article 90(2)
         of the Staff Regulations, one to the Agency, and the other to the Commission. In those complaints, he asserted, inter alia,
         that he had realised, on studying the recalculation, that the administration had failed to pay him the ‘management premium’
         which was due to him by virtue of the duties as head of unit ad interim which he had performed from 1 August 2004 until 31
         December 2005. The applicant took the view that the remuneration he received at the Commission should have included that ‘management
         premium’, calculated on the basis of his salary at the Commission, and that, therefore, the secondment allowance which was
         paid to him should be increased, to make his remuneration while on secondment equal to that he should actually have received
         at the Commission, including the ‘management premium’. In his complaints, the applicant did not specify whether that ‘management
         premium’ was the management premium provided for by Article 44(2) of the Staff Regulations, or the interim allowance referred
         to in Article 7(2) of the Staff Regulations. 
      
      13      Also on 8 March 2007, the applicant submitted a request under Article 90(1) of the Staff Regulations for payment of that interim
         allowance for the period from 2 August 2004 to 31 December 2005. 
      
      14      On 29 June 2007, the appointing authority responded (‘the decision rejecting the complaint’) to the complaint made to it,
         addressing the applicant’s entitlement to the interim allowance and the secondment allowance. First, as regards the granting
         of the interim allowance, the appointing authority stated that no formal decision had yet been taken to appoint the applicant
         head of unit ad interim from 1 August 2004 to 31 December 2005, and that the complaint, reclassified in that regard as a request,
         had been forwarded to the relevant departments in the Directorate-General for Personnel and Administration. Then, as regards
         the method of calculation of the secondment allowance, the appointing authority considered that the management premium was
         a constituent element of the applicant’s remuneration paid by the Agency and that that secondment allowance had been correctly
         calculated as the difference between the remuneration paid to the applicant by virtue of his duties at the Agency, including
         the management premium, and the remuneration he would have received in his grade at the Commission. On the question of taking
         account of the interim allowance in the assessment of the applicant’s entitlement to the secondment allowance, the appointing
         authority stated that, even if the applicant could obtain recognition that he had performed the duties of head of unit ad
         interim, the interim allowance would only be granted to him for a limited period, on a temporary basis, and could not therefore
         be taken into consideration in the present comparison. 
      
      15      On 9 July 2007, the Director of the Agency responded to the complaint addressed to him. He first declared that the Agency
         had no authority to rule on the applicant’s entitlement to the interim allowance and the secondment allowance, as the calculation
         and payment of those allowances was a matter for the Commission. Then, as regards the management premium, the Director of
         the Agency took the view that it was right to recalculate it on the basis of the basic salary received by the applicant at
         the Agency, with retrospective effect as of the date the applicant took up his duties as head of unit in the Agency, on 1
         January 2006. Finally, the Director of the Agency decided to forgo the recovery of the money unduly paid, amounting to EUR
         2 326.87, on the ground that the applicant could not have been aware of the previous irregularity in the calculation of his
         remuneration, as the Agency and the PMO themselves had only belatedly drawn a distinction between the basic salary received
         by the applicant at the Commission and the basic salary paid by the Agency and paid the secondment allowance to him. 
      
      16      On 5 July 2007, the relevant department of the Education and Culture DG submitted an ex post facto request to the Directorate-General
         for Personnel and Administration for the appointment of the applicant as head of unit ad interim for the period from 1 February
         to 31 December 2005, that is to say, for a part, amounting to less than one year, of the period when the applicant had been
         acting head of unit.
      
       Forms of order sought and procedure 
      17      The applicant claims that the Tribunal should: 
      
      –        annul the decision rejecting the complaint in so far as, by that decision, the appointing authority refused to grant him the
         interim allowance for longer than one year;  
      
      –        order the Commission to pay the costs.
      18      By separate document, lodged on 23 November 2007 at the Registry of the Tribunal, the Commission asked the Tribunal to make
         a decision on inadmissibility not going to the substance of the case. By its plea, the Commission contends that the Court
         should: 
      
      –        dismiss the action as inadmissible; 
      –        order each of the parties to bear their own costs under Article 88 of the Rules of Procedure of the Court of First Instance
         of the European Communities, applicable by virtue of Article 122 of the Rules of Procedure of the Civil Service Tribunal to
         cases brought before the Tribunal before 1 November 2007, the date of entry into force of those rules. 
      
      19      By document received at the Registry on 4 January 2008 by fax (the original being lodged on 9 January 2008) the applicant
         submitted his observations on the plea of inadmissibility raised by the Commission.
      
      20      By letter of 29 February 2008, the Tribunal asked the parties to produce various documents. The parties complied with that
         request, in the case of the applicant, by letter received at the Registry on 4 March 2008 by fax (the original being lodged
         on 10 March 2008), and in the case of the Commission, by letter lodged at the Registry on 6 March 2008.
      
       Law
       Admissibility of the plea of inadmissibility raised by the Commission by separate document 
      21      The applicant contends that the plea of inadmissibility raised by the Commission is inadmissible, as it was not served on
         him within the period of one month prescribed by Article 78(1) of the Rules of Procedure. 
      
      22      In that connection, the legal basis for the present order must first be determined.
      
      23      Although the Commission’s claim, brought by separate document, is presented as having been brought ‘under Article 78 of the
         Rules of Procedure’ that claim concerns the admissibility of an application lodged at the Registry of the Tribunal before
         1 November 2007, the date of entry into force of those rules. The procedural rules referred to in Article 78 of the Rules
         of Procedure, in particular that laid down by paragraph 3 of that article, which empowers the Tribunal to decide by way of
         order not going to the substance of the case, together  with the rules on admissibility of the application to which Article
         114 of the Rules of Procedure of the Court of First Instance referred, applicable mutatis mutandis to the Tribunal pending the entry into force of the Rules of Procedure, must, therefore, be applied (see, to that effect,
         the order of the Tribunal of 25 January 2008 in Case F-80/06 Duyster v Commission [2008] ECR-SC I-A-0000 and II-0000, paragraphs 38 to 43).
      
      24      Second, it must be considered whether the period within which the plea of inadmissibility must be lodged is the period of
         one month laid down by Article 78(1) of the Rules of Procedure, or the period of two months laid down by the Rules of Procedure
         of the Court of First Instance for the lodging of a plea of inadmissibility before that court (see Duyster v Commission, paragraph 43). 
      
      25      The time allowed to the defendant for submitting a plea of inadmissibility begins to run, whether under Article 114 of the
         Rules of Procedure of the Court of First Instance or under Article 78 of the Rules of Procedure, from the service of the application.
         As such service was effected, in the present case, before the entry into force of the Rules of Procedure, the period to be
         observed by the Commission was necessarily that which was then in force, of two months, running from the time of service,
         laid down by the Rules of Procedure of the Court of First Instance. The entry into force of the Rules of Procedure could not
         have the effect in law of reducing the period, which had already begun to run on 1 November 2007, for the lodging of a plea
         by separate document. As the Commission rightly observes, that interpretation is required for the sake of legal certainty
         (see, to that effect, the order of the Tribunal  of 14 December 2007 in Case F-82/06 Duyster v Commission [2007] ECR-SC I-A-0000 and II-0000, paragraph 40, and, by analogy, as regards the predictability of the rules of court proceedings,
         the judgment of the Tribunal in Case F-16/05 Falcione v Commission [2006] ECR-SC I-A-0000 and II-0000, paragraph 84). 
      
      26      Thirdly, and finally, it should be pointed out that, contrary to the applicant’s allegations, the relevant date for verifying
         observance of the prescribed period of two months is the date on which the plea of inadmissibility is ‘lodged’ with the Tribunal,
         a formality expressly required by Article 114 of the Rules of Procedure of the Court of First Instance, and not that of service
         of that plea on the applicant (see, by analogy, as regards the period prescribed for lodging the defence Case T-47/92 Lenz v Commission [1992] ECR II-2523, paragraph 34). The interpretation advocated by the applicant, apart from the fact that it runs counter
         to the relevant text, would have the effect, in practice, of reducing the length of time allowed to the defendant and would
         make the latter’s procedural rights depend on the degree of diligence shown by the Registry of the Tribunal in serving the
         application.
      
      27      Consequently, in lodging its plea of inadmissibility on 23 November 2007, less than two months after the lodging of the application
         and thus a fortiori less than two months after its service, the Commission observed the time-limit imposed on it in this case
         under the provisions of the Rules of Procedure of the Court of First Instance. 
      
      28      The plea of inadmissibility raised by the Commission is, therefore, admissible. 
      
       The admissibility of the action 
      29      Under Article 78(1) and (2) of the Rules of Procedure, if a party applies to the Tribunal for a decision on admissibility
         not going to the substance of the case, the remainder of the procedure on the application is oral, in the absence of a decision
         to the contrary by the Tribunal.  In the present case, the Tribunal considers that it has sufficient information from the
         documents on the file and has decided, pursuant to these provisions, to rule without further procedure.
      
      30      Unlike the complaints submitted by the applicant, which criticised the recalculation of his remuneration as a whole and the
         formulation of which, given the ambiguous use of the term ‘management premium’, did not give a clear picture of his grievances,
         the terms of the application show clearly, first, that it is directed only against the Commission, as the applicant has not
         disputed the response of the Agency to his complaint and, second, that the applicant limits his criticism to the application
         by the Commission of Article 7(2) of the Staff Regulations, to the exclusion of other components of his remuneration. By his
         action, the applicant is thus disputing only the failure to grant him the interim allowance for a period longer than one year,
         by virtue of the duties he performed at the Commission from 1 August 2004 to 31 December 2005. 
      
      31      Neither of the two decisions susceptible of being construed as acts adversely affecting the applicant in these proceedings,
         that is to say, the decision rejecting the complaint and the salary statement of December 2006, determines the applicant’s
         entitlement to the interim allowance. 
      
      32      First, as regards the decision rejecting the complaint, as stated in paragraph 14 of this order, the appointing authority
         confined itself, in that decision, to informing the applicant that no decision had yet been taken to appoint him head of unit
         ad interim for the period from 1 August 2004 to 31 December 2005, and that the request made to that effect by the applicant
         had been forwarded to the department responsible. 
      
      33      Admittedly, the appointing authority pointed out, essentially, that the absence of a decision at that stage assigning the
         duties of head of unit ad interim to the applicant prevented the award of the interim allowance to the applicant and its inclusion
         in the calculation of his remuneration. However, such an assessment, which lends itself necessarily to an interpretation a contrario, cannot be construed as a position on the part of the administration opposing the applicant’s entitlement to the interim
         allowance from the outset. Still less, therefore, could the appointing authority, by its decision rejecting the complaint,
         limit the payment of that allowance to the applicant to a period of one year. Moreover, that decision closes with the statement:
         ‘as for his claim regarding his appointment [to the post of head of unit] ad interim, it has been transmitted to the competent
         service’.
      
      34      Second, as regards the salary statement for December 2006, none of the information given in it suggests the existence of a
         decision by the administration concerning the claims of the applicant to the interim allowance. The statement only shows the
         new method of calculation by the PMO of the remuneration paid by the Agency to the applicant and the consequences for the
         calculation of the secondment allowance. It is limited to a depiction of the financial situation of the applicant while on
         secondment for the period from 1 January to 31 December 2006 and contains no information concerning the previous duties as
         acting head of unit, performed by the applicant more than one year previously at the Commission.
      
      35      Moreover, the applicant cannot complain that, by that salary statement, the PMO altered the method of calculation of the total
         remuneration attaching to his previous duties at the Commission within the meaning of Article 38(d) of the Staff Regulations,
         on the ground that the PMO had stopped taking account, from December 2006, of the interim allowance. At no time before December
         2006 did the PMO include that allowance in the total remuneration of the applicant in the above sense, that is to say, the
         remuneration which, when compared with the remuneration attaching to the post on secondment, gives rise, if it is higher than
         the latter, to the payment of a secondment allowance. If the PMO had included the interim allowance in the total remuneration
         of the applicant at the Commission, that total remuneration, calculated on the basis of a basic salary for Grade AD 12, step
         4, and including a premium calculated in accordance with that salary, would have been higher than the applicant’s total remuneration
         at the Agency (that salary being calculated on the basis of a lower basic salary, for Grade AD 11, step 2), with the consequence
         that the other premiums and allowances and, in any event, the management premium, would have been lower than those calculated
         on the basis of a basic salary for Grade AD 12, step 4. In that event, the applicant should have received a secondment allowance
         to cover that disparity. According to the applicant’s salary statements he did not receive that allowance at any time before
         December 2006.
      
      36      The action is, therefore, not directed against an act adversely affecting the applicant at that stage and must, for that reason
         alone, be declared inadmissible. 
      
      37      In any event, although the applicant submitted a request under Article 90(1) of the Staff Regulations for the payment of the
         interim allowance for the period of his posting ad interim at the Commission from 2 August 2004 to 31 December 2005 (see paragraph
         13 of this order), that fact is not, in any event, such as to establish that the application is admissible. Even if the decision
         rejecting the complaint may contain a definitive position on the part of the administration on that request by the applicant,
         in the sense that the interim allowance could be paid to him for a maximum period of one year only, and thus constituted an
         act adversely affecting him, the claims made against that act would not be admissible because they were not preceded by a
         complaint under the conditions required by Articles 90 and 91 of the Staff Regulations. In any event, any act adversely affecting
         the applicant relating to the grant of the interim allowance can only post-date the facts of the present case and be the result
         either of a refusal to grant that allowance or of a failure to recognise fully the entitlement which the applicant claims
         in that regard.
      
       Costs
      38      Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought
         before the Tribunal from the date on which those Rules enter into force, that is to say from 1 November 2007. The relevant
         provisions of the Rules of Procedure of the Court of First Instance remain applicable mutatis mutandis to cases pending before the Court before that date. 
      
      39      Under Article 87(2) of the Rules of Procedure of the Court of First Instance 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 88 of those rules, in proceedings
         between the Communities and their servants the institutions are to bear their own costs. 
      
      40      As the applicant has been unsuccessful, each party should bear its own costs. 
      
      On those grounds,
      THE TRIBUNAL (First Chamber)
      hereby orders:
      1.      The action is dismissed as inadmissible.
      2.      The parties shall bear their own costs.
      Luxembourg, 22 May 2008.
      
               W. Hakenberg 
            
             
            
                      H. Kreppel
            
         
      
               Registrar
            
             
            
                     President 
            
         
         The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published
            in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu
         
      
      * Language of the case: English.