ORDER OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Third Chamber)

10 November 2015

Małgorzata Kozak

v

European Commission

‛Civil service — Applicant not represented by a lawyer — Application signed by the applicant in her capacity as a lawyer — Non-rectifiable defect — Manifest inadmissibility — Article 81 of the Rules of Procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Kozak seeks, in essence, annulment, first, of the decision of 15 April 2015 by which the European Personnel Selection Office (EPSO) informed her that she had not passed the ‘Talent Screen Test’ organised in Competition EPSO/AD/293/14, meaning that she was not eligible to participate in the tests at the Assessment Centre in that competition, and, secondly, annulment of the decision of 11 June 2015 by which EPSO informed her that the competition selection board had, after reviewing its initial decision, confirmed that decision.

Held:

The action is dismissed as manifestly inadmissible. Ms Kozak is to bear her own costs.

Summary

  1. Actions brought by officials — Prior administrative complaint — Request for review — Formal requirements — Request submitted without the assistance of a lawyer — Lawfulness

    (Staff Regulations, Art. 90(2))

  2. Judicial proceedings — Application initiating proceedings — Formal requirements — Application lodged without the assistance of a lawyer — Applicant with the status of lawyer authorised to plead before a national court — No effect — Inadmissibility

    (Statute of the Court of Justice, Art. 19, third and fourth paras, and Annex I, Art. 7; Rules of Procedure of the Civil Service Tribunal, Art. 45(2), first subpara.)

  3. Judicial proceedings — Application initiating proceedings — Formal requirements — Lawyer’s handwritten signature — Essential rule of strict application — None — Inadmissibility — Application lodged before the expiry of the period within which proceedings may be brought — Obligation for the registry to draw attention to the irregularity in question — None)

    (Statute of the Court of Justice, Art. 19, third and fourth paras, and Annex I, Art. 7; Rules of Procedure of the Civil Service Tribunal, Art. 45(2), first subpara.)

  1.  There is no requirement to have legal representation in order to submit a complaint under Article 90(2) of the Staff Regulations or a request for review of a decision of a selection board in a competition, although the parties concerned may nevertheless take legal advice even at the pre-litigation stage.

    (see para. 4)

    See:

    Judgment of 9 March 1978 in Herpels v Commission, 54/77, EU:C:1978:45, paras 46 to 48

  2.  Pursuant to the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the Civil Service Tribunal by virtue of Article 7 of Annex I thereto, in order to subsequently bring an action before the Tribunal, a party, within the meaning of those provisions, must be represented by a third person, in the present case a lawyer authorised to practise before a court of a Member State or of a State which is a party to the Agreement on the European Economic Area.

    In this connection, the fact that the applicant is a member, as a lawyer, of the Bar in a Member State of the European Union is irrelevant since, given that no derogation from or exception to the obligation to be represented is provided for by the Statute of the Court of Justice or the Rules of Procedure of the Civil Service Tribunal, the submission of an application signed by the applicant himself, even if he is a lawyer authorised to plead before a court of one of the Member States of the European Union, cannot be sufficient for the purpose of bringing an action.

    (see paras 5, 8)

    See:

    Order of 5 December 1996 in Lopes v Court of Justice, C‑174/96 P, EU:C:1996:473, paras 8 and 10, and judgment of 12 June 2014 in Peftiev, C‑314/13, EU:C:2014:1645, para. 28 and the case law cited therein

    Order of 13 January 2005 in Sulvida v Commission, T‑184/04, EU:T:2005:7, para. 8

    Order of 13 February 2012 in Ayres de Abreu v EESC, F‑123/11, EU:F:2012:17, para. 11

  3.  Pursuant to the first subparagraph of Article 45(2) of the Rules of Procedure of the Civil Service Tribunal, the original of the application must bear the handwritten signature of the applicant’s lawyer and not of the applicant himself. That signature requirement is intended, in particular, first, to ensure that responsibility for the execution and content of that procedural document is assumed by the authorised person who must be selected by the applicant for the purposes of satisfying the obligation to be represented and, secondly, to eliminate the risk that that document is, in fact, written by someone other than the author authorised for that purpose.

    The absence of a handwritten signature on the application by the lawyer instructed by the applicant to represent him constitutes, as such, an infringement of the first subparagraph of Article 45(2) of the Rules of Procedure and is therefore not among the formal irregularities that are capable of being rectified, after the expiry of the period within which proceedings may be brought, under Article 50(6) of the Rules of Procedure. The requirement of a hand-written signature on the part of the lawyer representing the applicant, in the same way as infringement of the obligation to be represented per se, must therefore be regarded as an essential procedural rule and be applied strictly, so that failure to comply with it leads to the inadmissibility of the action on the expiry of the period within which proceedings may be brought.

    Where an application bringing proceedings is lodged before the expiry of the period within which proceedings may be brought, it is not for the Civil Service Tribunal, in the period between the date on which the application is lodged and the date on which the period within which proceedings may be brought expires, to draw that matter to the applicant’s notice in order to make good his lack of diligence in observing requirements such as those provided for in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice and the first subparagraph of Article 45(2) of the Rules of Procedure of the Civil Service Tribunal. In any event, the Registry of that Tribunal does not have the power to take a decision relating to the admissibility or inadmissibility of an action and therefore it cannot provide any indication to the parties in this respect which pre-judges the position to be adopted by the Tribunal.

    (see paras 6, 9,10)

    See:

    Order of 8 November 2007 in Belgium v Commission, C‑242/07 P, EU:C:2007:672, para. 23, and judgment of 22 September 2011 in Bell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, para. 42

    Order of 17 January 2007 in Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission, T‑129/06, EU:T:2007:11, para. 29, and judgment of 23 May 2007 in Parliament v Eistrup, T‑223/06 P, EU:T:2007:153, paras 48, 50 and 51

    Order of 13 December 2013 in Marcuccio v Commission, F‑2/13, EU:F:2013:214, para. 33