JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

5 December 2002

Case T-209/99

Paul Edwin Hoyer

v

Commission of the European Communities

‛Temporary staff — Implementation of a judgment of the Court of First Instance — Actions for damages — Admissibility’

Full text in Dutch   II-211

Application for:

compensation for the material and nonmaterial damage allegedly suffered as a result of the judgments given by the Court of First Instance on 17 March 1994 in Case T-43/91 Hoyer v Commission [1994] ECRSC I-A-91 and II-297 and Case T-51/91 Hoyer v Commission [1994] ECRSC I-A-103 and II-341.

Held:

The application is dismissed as inadmissible. The parties are ordered to bear their own costs.

Summary

1. Officials — Actions — Prior complaint through official channels — Time-limits — Expiry — Condition — New fact

   (Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Conditions governing admissibility — Mandatory nature — Powers of the Court

   (Staff Regulations, Arts 90 and 91)

3. Officials — Actions — Act adversely affecting an official — Concept — Purely confirmatory act — Exclusion

   (Staff Regulations, Art. 91)

1.  Although, under Article 90(1) of the Staff Regulations, any official may request the appointing authority to take a decision relating to him, that right does not allow an official to set aside the time-limits laid down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by indirectly calling in question, by means of a request, a previous decision which had not been challenged within the time-limits. Only the existence of substantial new facts liable to affect the official concerned adversely may result in the reopening of those time-limits and justify consideration of such a request.

   (see para. 46)

   See: 231/84 Valentini v Commission [1985] ECR 3027, para. 14; T-14/91 Weyrich v Commission [1991] ECR II-235, para. 39; T-34/91 Whitehead v Commission [1992] ECR II-1723, para. 18

2.  The rules laid down by Articles 90 and 91 of the Staff Regulations are mandatory and the parties may not waive them. It is thus for the Community judicature alone, whatever the positions adopted by the parties, firstly, to examine and determine whether there is indeed an act adversely affecting the official, which thus constitutes the starting point of the pre-litigation phase provided for in Article 90(2) of the Staff Regulations, and, secondly, to determine the legal nature of the documents sent by the official concerned to the institution to which he belongs, since such classification is a matter for the Court alone and not in the discretion of the parties.

   (see para. 47)

   See: 122/79 and 123/79 Schiavo v Council [1981] ECR 473. para. 22; T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, para. 38; Whitehead v Commission, cited above, para. 19; T-145/00 Hotzel-Wagenknecht v Commission, not published in the ECR. para. 23

3.  Since only an act which produces binding legal effects capable of directly and immediately affecting an official's legal situation and his position under the Staff Regulations can be regarded as adversely affecting him within the meaning of Article 91(1) of the Staff Regulations, the lodging of an appeal against an act purely confirmatory of a previous decision not challenged within the time-limits is inadmissible, since that classification presupposes that the act contains nothing new in relation to the decision and was not preceded by a review of the situation of the official to whom the decision was addressed.

   (see para. 48)

   See: T-293/94 Vela Palacios v ESC [1996] ECRSC I-A-305 and II-893. para. 22; T-68/97 Neumann and Neumann-Scholles v Commission [1999] ECRSC I-A-193 and II-1005, para. 58; T-87/99 Hendrickx v Cedefop [2000] ECRSC I-A-147 and II-679. para. 37