CELEX: 62007FO0049
Language: en
Date: 2008-02-19 00:00:00
Title: Order of the Civil Service Tribunal (First Chamber) of 19 February 2008. # R v Commission of the European Communities. # Public service - Officials. # Case F-49/07.

ORDER OF THE CIVIL SERVICE TRIBUNAL
      (First Chamber)
      19 February 2008
      Case F-49/07
      R
      v
      Commission of the European Communities 
      (Civil service – Officials – Actions – Actions for damages – Conditions of probationary period – Extension of probationary period – Establishment as an official – Inadmissibility)
      Application: brought under Articles 236 EC and 152 EA, in which R asks the Tribunal, first, to declare void or to annul her entire probationary
         period and all the measures produced in that connection, secondly, to partially annul her end of probationary period report
         finalised on 18 May 2004, third, to annul the decision of the Director-General for Personnel and Administration of 20 July
         2005 dismissing her request for assistance of 11 November 2004, and finally, to order the Commission to pay her damages of
         EUR 2 500 000 for the loss she claims to have suffered.
      
      Held: The action is dismissed as inadmissible. Each party is to bear its own costs.
      
      Summary
      1.      Procedure – Admissibility of actions – Assessment by reference to the rules in force when the application was lodged 
      (Rules of Procedure of the Civil Service Tribunal, Art. 78)
      2.      Procedure – Application initiating proceedings – Formal requirements
      (Rules of Procedure of the Court of First Instance, Art. 44(1)(c))
      3.      Officials – Actions – Act adversely affecting an official – Definition – Preparatory act 
      (Staff Regulations, Arts 34, 90 and 91)
      4.      Officials – Actions – Prior administrative complaint – Time-limits
      (Staff Regulations, Arts 90 and 91)
      1.      Although the rule laid down in Article 78 of the Rules of Procedure of the Civil Service Tribunal that the Tribunal may, by
         way of an order, dismiss an action as inadmissible where an application to that effect is lodged by a party by a separate
         document is a procedural rule which applies to all proceedings pending before the Tribunal at the time when it enters into
         force, the same is not true of rules on the basis of which the Tribunal considers, pursuant to that article, whether or not
         an action is admissible, which may only be those applicable on the date when the action is brought.
      
      (see para. 33)
      2.      Under the terms of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance an application must state the
         subject-matter of the proceedings, which means that the subject-matter should be sufficiently precise to enable the defendant
         to avail itself of its right to defend itself and the Court to understand the purpose of the applicant’s claims.
      
      A claim for the Court to declare void an official’s entire probationary period and all the measures produced in that connection
         without the measures in question being identified must, if it lacks adequate detail, be declared inadmissible . The large
         number of decisions contested does not mean – quite the reverse – that the person bringing the action does not have to refer
         to each decision that he is contesting sufficiently precisely to enable it to be identified.
      
      (see paras 49, 50)
      See:
      T-146/95 Bernardi v Parliament [1996] ECR II‑769, para. 25; T-192/96 Lebedef v Commission [1998] ECR-SC I‑A‑363 and II‑1047, para. 33
      
      3.      In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination
         of an internal procedure, only a measure definitively establishing the position of the institution at the conclusion of that
         procedure, and not a provisional measure intended to pave the way for the final decision, is generally challengeable. Thus
         in staff cases measures whose purpose is to prepare a decision are not acts adversely affecting officials within the meaning
         of Article 90(2) of the Staff Regulations.
      
      In particular, measures taken during an official’s probationary period pursuant to Article 34 of the Staff Regulations are
         merely designed to allow the appointing authority to decide, with full knowledge of the facts, at the conclusion of the probationary
         period, whether or not the probationer should be appointed as an established official. Such measures are therefore preparatory
         in nature. That is true of the end of probationary period report and the interim probationary report. It also applies to a
         decision extending the probationary period.
      
      (see paras 54, 55)
      See:
      60/81 IBM v Commission [1981] ECR 2639, para. 10; C-147/96 Netherlands v Commission [2000] ECR I‑4723, para. 26
      
      T-324/02 McAuley v Council [2003] ECR-SC I‑A‑337 and II‑1657, para. 28; T-394/03 Angeletti v Commission [2006] ECR-SC I-A-2-95 and II‑A‑2‑441, para. 36
      
      F‑27/06 and F‑75/06 Lofaro v Commission [2007] ECR-SC I-A-0000, paras 57 to 61 and 68
      
      4.      The time-limits prescribed in Articles 90 and 91 of the Staff Regulations, being designed to ensure legal certainty, are a
         matter of public policy and are binding on the parties and the Court.  An official cannot therefore revive for himself a right
         of appeal against a decision which has become definitive upon the expiry of the time-limits for appeal by submitting a request
         to the appointing authority under Article 90(1) of the Staff Regulations .
      
      The existence of a new and substantive fact may, admittedly, justify the submission of a request for the re-examination of
         a decision which has become definitive.  The fact concerned must be capable of substantially altering the situation of the
         person seeking the re-examination of that decision. That is not the case where the person concerned claims that the disclosure
         by the administration of documents relating to him constitutes a new and substantive fact without giving any indication of
         the content of those documents and without showing how the disclosure of those documents has substantially altered his situation.
      
      (see paras 78-80)
      See:
      231/84 Valentini v Commission [1985] ECR 3027, para. 14; 232/85 Becker v Commission [1986] ECR 3401, para. 10
      
      T-495/93 Carrer and Others v Court of Justice [1994] ECR-SC I‑A‑201 and II‑651, para. 20; T-42/97 Lebedef v Commission [1998] ECR-SC I‑A‑371 and II‑1071, para. 25; T-186/98 Inpesca v Commission [2001] ECR II‑557, para. 51