JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

11 April 2016

Richard Zink

v

European Commission

‛Civil service — Officials — Expatriation allowance — Administrative error meaning that no expatriation allowance was paid for a number of years — Act adversely affecting an official — Salary statements not reflecting a decision — Article 82 of the Rules of Procedure — Absolute bar to proceeding — Irregularity of the pre-litigation procedure — Request within the meaning of Article 90(1) of the Staff Regulations — Reasonable time’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Richard Zink seeks annulment of the decision of 23 July 2014 of the Office for Administration and Payment of Individual Entitlements (PMO) of the European Commission to limit the payment of the expatriation allowance, which had been wrongly omitted since 1 September 2007, to a period of five years prior to the date on which the error was discovered.

Held:

The action is dismissed. Mr Richard Zink is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1. Actions brought by officials — Act adversely affecting an official — Concept — Salary statement — Commonly accepted as included for the purpose of access to legal remedies — Salary statement not containing the expatriation allowance as a result of an administrative error — Not included — Salary statement not reflecting any pecuniary decision

   (Staff Regulations, Arts 90 and 91)

2. Actions brought by officials — Prior administrative complaint — Complaint directed against failure to pay an allowance — Administration’s inaction not equivalent to refusal to grant — Inadmissibility

   (Staff Regulations, Arts 90 and 91)

3. Actions brought by officials — Time-limits — Claim for damages addressed to an institution — Duty to act within a reasonable time — Infringement — Justification based on difficult working conditions — Unlawful — Justification based on an exceptional situation which prevented the official from noticing the administration’s error and submitting a claim — Lawful

   (Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90(1))

1.  Although a salary statement, by its nature and purpose, does not, as such, have the characteristics of an act adversely affecting an official, since it merely expresses in financial terms the effect of earlier legal decisions concerning the official’s situation, in procedural terms such a statement may constitute an act producing specific legal effects in respect of the person to whom it is addressed. Thus, the sending of the salary statement has the effect of starting the time for bringing a complaint and an appeal against an administrative decision running, where that statement clearly shows the decision taken and its scope. That being so, salary statements, which are sent monthly and contain a statement of an official’s pecuniary rights, may constitute acts adversely affecting that official, against which a complaint and, if necessary, an appeal may be brought.

   However, where, because of an error by the administration in the computer encoding of an official’s entitlements under the Staff Regulations, the expatriation allowance was not paid, even though the official’s entitlement to that allowance had been explicitly confirmed by the institution concerned following his return to the institution after a secondment, the salary statements for the official from the date of that confirmation do not reflect any pecuniary decision, do not change his legal position and do not definitively determine the institution’s position.

   Consequently, since they do not reflect a decision of the appointing authority of the institution concerned, the salary statements cannot have the effect of setting the time running for lodging a complaint.

   (see paras 34, 37-40)

   See:

   Judgment of 27 June 1989 in Giordani v Commission, 200/87, EU:C:1989:259, para. 13

   Judgment of 19 September 2008 in Chassagne v Commission, T‑253/06 P, EU:T:2008:386, para. 139

   Order of 13 September 2013 in Conticchio v Commission, T‑358/12 P, EU:T:2013:525, para. 23 and the case-law cited therein

   Order of 22 June 2015 in van Oudenaarden v Parliament, F‑139/14, EU:F:2015:64, para. 29 and the case-law cited therein

2.  As regards the lodging of a prior administrative complaint under Article 90(2) of the Staff Regulations against the non-payment of an allowance to an official, the condition that there must be a decision adversely affecting the official is not satisfied where the non-payment of the allowance does not necessarily mean that the institution concerned has refused the official that entitlement.

   (see para. 35)

   See:

   Judgment of 22 September 1988 in Canters v Commission, 159/86, EU:C:1988:432, para. 7

3.  As regards a claim for damages addressed to an institution by an official seconded to an EU delegation, seeking compensation for the harmful effects of a technical error committed by an institution’s departments, however difficult the official’s working conditions may have been, he may not rely on them if he exceeds a reasonable time for submitting a request under Article 90(1) of the Staff Regulations to have the effects of that error corrected, unless he has shown that he faced an exceptional situation which prevented him from noticing the error and submitting such a request.

   (see para. 48)

   See:

   Order of 13 July 2010 in Allen and Others v Commission, F‑103/09, EU:F:2010:88, para. 38, and judgment of 13 April 2011 in Sukup v Commission, F‑73/09, EU:F:2011:40, para. 83