Case T‑723/18

João Miguel Barata

European Parliament

Judgment of the General Court (Seventh Chamber, Extended Composition), 3 March 2021

(Civil service – Officials – Promotion – Certification procedure – Exclusion of the applicant from the final list of officials entitled to take part in the training programme – Article 45a of the Staff Regulations – Action for annulment – Communication by registered letter – Article 26 of the Staff Regulations – Registered letter not collected by the person to whom it was addressed – Starting point of the period prescribed for instituting proceedings – Admissibility – Obligation to state reasons – Right to be heard – Principle of sound administration – Proportionality – Rules on the use of languages)

Officials – Individual decisions – Notification – Procedures – Registered letter with acknowledgement of receipt – Reliability of the notification

(Staff Regulations, Arts 25, second para., and 26, third para.)

(see paragraphs 25-27)
Actions brought by officials – Time limits – Application lodged out of time – Burden of proof

(Staff Regulations, Art. 91)

(see paragraph 30)
Actions brought by officials – Time limits – Point from which time starts to run – Notification – Meaning – Failure to take delivery of a decision sent by registered letter with acknowledgment of receipt– No presumption of notification on the expiry of the retention period

(Art. 6(1) TEU; Arts 263, sixth para., 270 and 297(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 52(3) and (7); Staff Regulations, Arts 26 and 91(3))

(see paragraphs 31, 32, 35-38, 42-52)
Officials – Certification procedure – Complaint of a candidate not selected – Rejection decision – Obligation to state reasons – Scope

(Staff Regulations, Arts 25 and 45a)

(see paragraphs 66-68)
Officials – Certification procedure – Complaint of a candidate not selected – Rejection decision – No duty to hear the person concerned in advance

(Charter of Fundamental Rights of the European Union, Art. 41(2); Staff Regulations, Arts 45a and 90(2))

(see paragraphs 72-75)
Officials – Certification procedure – Conditions for admission – Fixing by the competition notice – Obligation to submit supporting documents– No warning from the administration concerning a candidate’s missing documents – No infringement of the duty to have regard for the welfare of officials and the principle of sound administration

(Staff Regulations, Art. 45a)

(see paragraphs 80-88)
Officials – Certification procedure – Conditions for admission – Fixing by the competition notice – Administration’s discretion – Judicial review – Limits – Requirement to include a list of annexes, failing which the application would be rejected – No breach of the principle of proportionality

(Staff Regulations, Art. 45a)

(see paragraphs 94-103)
Officials – Certification procedure – Conditions for admission – Fixing by the competition notice – Languages of communication between the administration and candidates – Restriction – Whether permissible – No infringement of the duty to have regard for the welfare of officials

(Art. 3(3) TEU; Art. 24, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Arts 22 and 41(4); Staff Regulations, Arts 1d(1) and (6) and 45a; Council Regulation No 1, Art. 2)

(see paragraphs 110-115, 119-121)
Officials – Certification procedure – Notice of competition – No obligation to publish in all the official languages of the European Union

(Council Regulation No 1, Art. 2; Staff Regulations, Art. 45a)

(see paragraphs 122, 123)

Résumé

On 22 September 2017, the European Parliament published a call for applications (‘the notice of competition’) for the 2017 certification exercise, in order to select officials in the AST function group who were suitable for appointment to a post in the AD function group pursuant to Article 45a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). The applicant, an official of the European Parliament, submitted an application in the procedure in question.

The appointing authority of the Parliament (‘the appointing authority’) rejected that application as inadmissible on the ground that it was not accompanied by a list of annexes, as required by the notice of competition. The appointing authority confirmed its rejection by two decisions taken following internal review procedures initiated by the applicant.

By decision of 23 July 2018, the appointing authority rejected the applicant’s complaints against the decisions rejecting his requests, while confirming its previous decisions. The Parliament communicated that decision by registered letter with acknowledgement of receipt, sent to the applicant’s home address. On 25 July 2018, the Belgian postal service delivered that letter to the applicant’s home address and, in the applicant’s absence, left a notice of attempted delivery. As that letter was not collected by the applicant, the Belgian postal service sent it back to the Parliament on 9 August 2018. In addition, on 28 August 2018, the Parliament sent an email to the applicant to which the decision of 23 July 2018 was annexed, which the applicant confirmed that he had become aware of that day.

On 7 December 2018, the applicant, claiming that the period for bringing an action had started to run from the date on which he became aware of the email, brought an action before the Court seeking annulment of the decisions not to admit his application and annulment of the notice of competition.

The Court, while finding that the action had been brought within the period prescribed for that purpose, nevertheless dismissed it as unfounded. In its judgment, the Court clarifies the case-law of the European Union as regards the determination of the starting point of the periods for bringing proceedings in disputes governed by the Staff Regulations where an individual decision is sent by registered letter with acknowledgment of receipt, but is not collected by the addressee.

Moreover, the judgment supplements the case-law concerning the application of Regulation No 1/58 on the rules on the use of languages ( 1 ) where there is a certification procedure, namely an internal competition reserved for certain officials.

Findings of the Court

The Court finds, first of all, that the administration is in principle free to choose the method which it considers most appropriate in the light of the circumstances of the case in order to notify a decision rejecting a complaint, since the Staff Regulations do not impose any order of priority between the various possible methods, such as electronic means or registered letter with acknowledgement of receipt.

The Court notes, in that regard, that a decision is properly notified if it is communicated to the person to whom it is addressed and the latter is put in a position to become acquainted with it. That last condition is satisfied where the addressee is put in a position to become acquainted with the content of the decision and of the grounds on which it is based.

The Court observes, moreover, that no provision in the Staff Regulations or in other EU regulatory instruments specifies that, in the event of unsuccessful notification of a registered letter, the point from which time starts to run for the calculation of the time limit for bringing proceedings is deferred until the expiry of the retention period for that letter by the postal service rather than the date on which the applicant actually became aware of the content of that letter.

The Court concludes that, where the relevant legislation currently in force is silent, legal certainty and the need to avoid any discrimination or arbitrary treatment in the interest of the proper administration of justice preclude the application, in the present case, of the presumption of notification. The Parliament is therefore wrong to claim that only notification by registered letter must be taken into account for the purposes of calculating the time limit for bringing proceedings, even though that letter was not collected within the time period given by the Belgian postal services. Consequently, as it was on 28 August 2018 that the applicant became fully aware of the decision of 23 July 2018, the period for bringing an action started to run from 28 August 2018.

As regards the alleged infringement of the EU rules on the use of languages, in so far as the Parliament failed to use, in the notice of competition and in the decision of 23 July 2018, the applicant’s mother tongue, namely Portuguese, the Court notes that a derogation from those rules may be justified in the light of the internal nature of a competition reserved to officials and staff employed in an institution. The fact that documents sent by the administration to one of its officials are drafted in a language other than that official’s mother tongue does not constitute any infringement of that official’s rights if he or she has a command of the language used by the administration which enables that official to acquaint himself or herself effectively and easily with the content of the documents in question. The Court notes, in that regard, that the applicant indicated in his application form that he had a very good level of the language actually used in the competition notice and in the decision of 23 July 2018 and that he used that language himself to communicate with the administration during the pre-litigation procedure.

The Court concludes that the certification procedure at issue in the present case is not an external competition which has to be published in the Official Journal of the European Union in all the official languages and which is open to all citizens of the European Union, but an internal competition reserved for certain officials with more than six years’ service. It is therefore without infringing the principles governing the EU rules on the use of languages that the Parliament was able to refrain from publishing the notice of competition in Portuguese. It was also without disregarding those principles that, in that notice, the Parliament requested the applicant to communicate with it in a language other than Portuguese and to have an adequate command of English or French.

( 1 ) Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition Series I 1952-1958, p. 59), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (OJ 2013 L 158, p. 1).