ORDER OF THE EUROPEAN UNION CIVIL SERVICE

TRIBUNAL (First Chamber)

25 November 2015

Michela Curto

v

European Parliament

‛Civil service — Accredited parliamentary assistants — Dismissal — Act adversely affecting an official or other member of staff — Complaint lodged out of time — Failure to observe the pre-litigation procedure — Manifest inadmissibility’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Ms Curto seeks annulment of the decision of the European Parliament of 5 December 2013, terminating her contract as an accredited parliamentary assistant and, to the extent necessary, annulment of the decision rejecting her complaint against that decision, together with an order for the Parliament to pay her the sum of EUR 65000 by way of damages.

Held:

The action is dismissed as manifestly inadmissible. Ms Curto shall bear her own costs and is ordered to pay the costs incurred by the European Parliament.

Summary

1. Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — To be considered of the Court’s own motion

   (Staff Regulations, Arts 90 and 91)

2. Actions brought by officials — Acts adversely affecting an official — Meaning — Merely confirmatory act — Not included

   (Staff Regulations, Art. 90(2) and 91(1))

1.  Articles 90 and 91 of the Staff Regulations make the admissibility of an action brought by an official or member of the temporary staff against the institution to which he belongs conditional on the proper observance of the preliminary administrative procedure laid down thereunder.

   Under Article 90(2) of the Staff Regulations, a complaint may be submitted against a decision of the appointing authority. Pursuant to that provision, the complaint must be submitted within a period of three months from the date of notification of the decision to the person concerned, but in no case later than three months from the date on which the latter received such notification, if the measure affects a specified person.

   The time-limit of three months for lodging a complaint against an act adversely affecting an official or other member of staff, laid down by Article 90(2) of the Staff Regulations, is a matter of public policy and not subject to the discretion of the parties or the court, since it was established in order to ensure that legal positions are clear and certain and that there is legal certainty. It is therefore for the EU judicature to ascertain, of its own motion, whether it has been complied with.

   (see paras 27-29)

   See:

   Order of 4 June 1987 in G.P. v ESC, 16/86, EU:C:1987:256, paragraph 6

   Orders of 11 May 1992 in Whitehead v Commission, T‑34/91, EU:T:1992:64, paragraph 18, and 7 September 2005 in Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 35 and the case-law cited therein

   Order of 10 September 2007 in Speiser v Parliament, F‑146/06, EU:F:2007:153, paragraph 21

2.  Both an administrative complaint and the ensuing court proceedings must be directed against an act adversely affecting the applicant within the meaning of Articles 90(2) and 91(1) of the Staff Regulations, an act adversely affecting the applicant being an act that directly and immediately affects the legal situation of the person concerned

   An action for annulment brought against a decision which merely confirms an earlier decision which was not challenged within the period prescribed for that purpose is inadmissible. A decision is mere confirmation of a previous decision if it contains no new factors by comparison with the earlier act and was not preceded by any re-examination of the situation of the person to whom the previous act was addressed.

   A letter from the administration conveying a decision to terminate the contract of a member of the temporary staff, in accordance with Article 139(1)(d) of the Conditions of Employment of Other Servants, does not leave scope for any doubt as to the intention of the authority authorised to conclude contracts of employment to terminate the contract of the person concerned, and therefore constitutes an act adversely affecting an official or other member of staff within the meaning of Article 90(2) of the Staff Regulations.

   By contrast, a letter to the person concerned fixing the date on which the contract is to end cannot be described as anything other than a mere confirmation of the earlier decision to terminate the contract.

   (see paras 30, 33, 35, 36)

   See:

   Judgments of 9 March 1978 in Herpels v Commission, 54/77, EU:C:1978:45, paragraphs 11-14,10 December 1980 in Grasselli v Commission, 23/80, EU:C:1980:284, paragraph 18, and 21 January 1987 in Stroghili v Court of Auditors, 204/85, EU:C:1987:21, paragraph 6

   Orders of 27 June 2000 in Plug v Commission, T‑608/97, EU:T:2000:167, paragraph 22, and 7 September 2005 in Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 38

   Orders of 19 December 2006 in Suhadolnik v Court of Justice, F‑78/06, EU:F:2006:141, paragraph 31, 10 September 2007 in Speiser v Parliament, F‑146/06, EU:F:2007:153, paragraph 23, 15 July 2008 in Pouzol v Court of Auditors, F‑28/08, EU:F:2008:100, paragraph 45, and 8 September 2011 in Pachtitis v Commission, F‑51/11 R, EU:F:2011:130, paragraph 28