JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

18 December 2008

Case T-293/07 P

Alessandro Lofaro

v

Commission of the European Communities

(Appeal – Civil service – Temporary staff – Time-limit for complaint – Date of bringing of complaint – Receipt by the administration – Principle of legal certainty)

Appeal: against the order of 24 May 2007 of the European Union Civil Service Tribunal (Third Chamber) in Joined Cases F‑27/06 and F‑75/06 Lofaro v Commission [2007] ECR-SC I-A-1-0000 and II‑A‑1‑0000 seeking the setting aside of that order.

Held: The appeal is dismissed. Mr Alessandro Lofaro is to bear his own costs and pay the Commission’s costs before the Court of First Instance.

Summary

1.      Appeal – Appeal against the dismissal of an application for annulment and the subsequent dismissal of a related application for damages – Pleas in law directed solely against the dismissal of the application for annulment – Admissibility of the overall appeal

(Rules of Procedure of the Court of First Instance, Art. 138(1))

2.      Officials – Actions – Prior administrative complaint – Date when lodged

(Staff Regulations, Art. 90(2))

3.      Officials – Actions – Prior administrative complaint – Obligation to take account of the expected delivery time for the complaint

(Staff Regulations, Art. 90(2))

4.      Officials – Actions – Prior administrative complaint – Date when lodged – Receipt by the administration

(Staff Regulations, Art. 90(2))

1.      The fact that an appellant, in support of his appeal seeking the total annulment of an order declaring inadmissible both his claim for annulment and his claim for damages, puts forward pleas and arguments directed solely against the grounds on which his application for annulment was dismissed does not render his appeal inadmissible as regards his application for damages, provided that the inadmissibility of the latter is based, in the contested order, only on its close connection, not disputed at the appeal stage, with the application for annulment, which was itself dismissed as inadmissible.

(see paras 17, 18, 20)

2.      The date to be taken into consideration for assessing whether a complaint has been lodged within the time-limit prescribed by Article 90(2) of the Staff Regulations is the date on which that complaint is received by the institution concerned. In laying down, in its first subparagraph, that ‘[t]he complaint must be lodged within three months’ and, in its second subparagraph, that the appointing authority ‘shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged’, Article 90(2) of the Staff Regulations expressly provides that the date on which the complaint is lodged is also the point at which the period of four months is set running for the institution concerned to reply to the complaint.

Within that legal framework, the principle of legal certainty, which requires that the points at which the time-limits applicable are set running and terminate must be clearly set out and strictly observed, precludes the taking into account of two separate dates for the lodging of the complaint, that is to say, first, the date on which the complaint was dispatched in order to ascertain whether it was lodged within the prescribed time-limit, and, second, the date on which the complaint was received by the institution concerned in order to define the point at which the time-limit for replying to the complaint is set running.

Furthermore, only the taking into consideration of the date on which the complaint is received satisfies the requirements of the principle of legal certainty, which requires any decision of the administration which produces legal effects to be clear, precise and brought to the knowledge of the person concerned, so that that person is able to know for certain the point in time at which the decision comes into existence and produces its legal effects, particularly as regards access to the legal remedies for which provision is made, in this instance by the Staff Regulations.

(see paras 29-33)

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 13; T‑54/90 Lacroix v Commission [1991] ECR II‑749, para. 26 and the case-law cited therein, and para. 29; F-3/05 Schmit v Commission [2006] ECR-SC I‑A‑1‑9 and II‑A‑1‑33, para. 28

3.      As regards observance of the time-limits for lodging complaints and appeals, it is for the person concerned to display all the diligence required of a normally well-informed person. In particular, it is for the person concerned to make sure that he lodges his complaint within the prescribed time-limit, taking account of the expected postal delivery period for the complaint should he choose that method of dispatch. The obligation to take account of the expected delivery period for the complaint does not preclude the possibility that the person concerned may, in exceptional circumstances, explain the lateness of his complaint by establishing, where appropriate, the existence of an unforeseeable circumstance, force majeure or an excusable error.

(see paras 37-38)

See: C‑195/91 P Bayer v Commission [1994] ECR I‑5619, para. 32; C‑193/01 P Pitsiorlas v Council and ECB [2003] ECR I‑4837, para. 24; C‑242/07 P Belgium v Commission [2007] ECR I‑9757, para. 29; T‑33/89 and T‑74/89 Blackman v Parliament [1993] ECR II‑249, para. 34; judgment of 15 March 2007 in T-5/07 Belgium v Commission, not published in the ECR, para. 15

4.      The mere fact that the postal delivery period varies according to the country of dispatch does not permit the inference that the taking into account of the date on which a complaint is received results in discrimination between the officials or staff members concerned, depending on the country in which they are located when they dispatch their complaints. The lodging of administrative complaints by officials is not subject to any formal requirements. Since certain delivery methods (electronic mail or fax) are immediate, the taking into account of the date on which the complaint is received does not disadvantage officials or staff members according to the country in which they are located when they dispatch their complaint.

(see paras 49-50)

See: T‑150/94 Vela Palacios v ESC [1996] ECR-SC I‑A‑297 and II‑877, para. 23