ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

23 May 2008

Case F-79/07

Kurt-Wolfgang Braun-Neumann

v

European Parliament

(Civil service – Officials – Pensions – Survivor’s pension – Payment of 50% owing to the existence of another surviving spouse – Inadmissibility – Complaint out of time – Absolute bar to proceeding – Raised by the Civil Service Tribunal of its own motion – Application ratione temporis of the Rules of Procedure of the Court of First Instance)

Application: brought under Articles 236 EC and 152 EA, in which Mr Braun-Neumann seeks an order for Parliament to pay him, with retroactive effect from 1 August 2004, the other half of the survivor’s pension in right of his wife, Mrs Mandt, née Neumann, in the monthly sum of EUR 1 670.84, plus interest at the rate applied by the European Central Bank (ECB) on the marginal lending facility, increased by 3%.

Held: The action is dismissed as inadmissible. Each party is to pay 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. 77)

2.      Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Act adversely affecting an official – Definition – Formal requirements – None

(Staff Regulations, Arts 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 77 of the Rules of Procedure of the Civil Service Tribunal that the Tribunal may, having heard the parties, decide whether there exists any absolute bar to proceeding with an action and, in doing so, dismiss an action by way of an order without taking further steps in the proceedings 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 laying down what constitutes an absolute bar to proceeding with an action, which, in so far as they determine the admissibility of an action, may only be those applicable on the date when the action is brought.

(see para. 33)

2.      The time-limits for complaint and appeal referred to in Articles 90 and 91 of the Staff Regulations, which serve the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice, are a matter of public policy and cannot be left to the discretion of the parties or the court, whose task it is to ascertain, even of its own motion, whether they have been observed. The fact that an institution dealt with the substance of an administrative complaint which was submitted out of time does not have the effect of derogating from those mandatory time-limits, or of relieving the Tribunal of the obligation to ascertain, even of its own motion, whether they have been observed.

(see paras 37, 49)

See:

79/70 Müllers v ESC [1971] ECR 689, para. 18; 227/83 Moussis v Commission [1984] ECR 3133, para. 13; 276/85 Cladakis v Commission [1987] ECR 495, para. 11; C-154/99 P Politi v European Training Foundation [2000] ECR I‑5019, para. 15

T-19/90 Von Hoessle v Court of Auditors [1991] ECR II-615, para. 23; T-54/90 Lacroix v Commission [1991] ECR II‑749, para. 25; T‑197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, para. 41; T-14/99 Kraus v Commission [2001] ECR-SC I‑A‑7 and II‑39, para. 20

F-64/05 Veramme v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, paras 20 and 21

3.      An act adversely affecting an official is one which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position. The fact that such an act is informal in nature does not prevent it from being an act having adverse effects since there is no formal requirement in that respect and it may even be verbal.

(see paras 39, 47)

See:

T-46/90 Devillez and Others v Parliament [1993] ECR II‑699, para. 14; T-51/01 Fronia v Commission [2002] ECR-SC I‑A‑43 and II‑187, para. 31

F-101/05 Grünheid v Commission [2006] ECR-SC I‑A‑1‑55 and II‑A‑1‑199, para. 33 and the case-law cited therein; F‑27/06 and F‑75/06 Lofaro v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para. 57, currently the subject of an appeal before the Court of First Instance, Case T‑293/07 P

4.      Even if it is desirable for an act adversely affecting an official to refer to legal remedies and the time-limits to be observed in that respect, failure to make such a reference, in the absence of any regulations requiring it, cannot have the effect of precluding the inadmissibility of an action against that act as a result of the late submission of the prior administrative complaint.

(see paras 48, 50)