JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

24 April 1996

Case T-6/94

A

v

European Parliament

‛Officials — Unauthorized absence — Remuneration — Article 60 of the Staff Regulations — Inadmissibility’

Full text in French   II-555

Application for:

an order that the European Parliament pay to the applicant, pursuant to the fourth paragraph of Article 88 of the Staff Regulations of Officials of the European Communities, the amounts, together with interest at the rate prescribed by law from the date of accrual until settlement, first, of the salary which the European Parliament did not pay her for December 1990 and for February, March, May, June and the first half of July 1991; secondly, salary unpaid for the period from 1 August 1991 until 31 December 1992, less the partial allowances she received for that period; and, thirdly, the allowance to which she considers herself entitled for leave not taken in 1992.

Decision:

Application dismissed as inadmissible.

Abstract of the Judgment

The applicant, a former Grade C 3 official in the Greek Translation Division of the European Parliament, was often ill from 1988 onwards, and made many stays in Greece during subsequent years. In this action, she essentially requests payment of parts of her remuneration which were not paid to her. The action covers only the period from December 1990 to December 1992.

Admissibility

The period before the complaint of 23 October 1991

By complaint dated 23 October 1991, addressed to the Secretary-General of the Parliament, the applicant requested payment of salary for December 1990 and for February, March, May, June and the first half of July 1991, and also payment of expenses for three journeys to which she considered herself entitled under the Staff Regulations of Officials of the European Communities. The complaint was rejected by the Secretary-General on 10 February 1992, without the applicant bringing any action, throughout 1992, against that act which adversely affected her. Thus, without there being any need to enquire either whether, for the puiposes of Article 90 of the Staff Regulations, it was a request or a complaint which the applicant had made, or whether specific complaints against the pay slips for the relevant period were necessary, the Court finds that the applicant failed in any event to comply with the three-month time-limit laid down by Article 91(3) of the Staff Regulations (paragraphs 45 and 46).

The applicant is mistaken in claiming that the opening of disciplinary proceedings against her on 5 December 1991 caused the time-limits to be suspended. The Community judicature cannot set aside the time-limits laid down by the Staff Regulations, which are a matter of public policy. Nor is there any basis in those regulations for allowing the application mutatis mutandis of the fourth paragraph of Article 88 thereof (paragraph 47).

It next needs to be examined whether the applicant's letter of 7 September 1993, requesting payment of the disputed salary, adduced a new fact and thereby caused time to run afresh. The applicant argues that, following the opinion of the Invalidity Committee, of which she was informed on 29 June 1993, the Parliament took no decision of such a kind as might have been expected, namely a decision to dismiss her. The applicant thus decided to challenge that ‘inaction on the part of the appointing authority’. If one were to take into consideration those dates, namely 29 June and 7 September 1993, she would thereby have complied with the three-month time-limit for submitting a complaint. Therefore, the letter of 7 September 1993 was sent within the time-limit. In any event, the applicant's error in calculating that time-limit was excusable (paragraphs 48 and 49).

In its opinion, the Invalidity Committee found that the applicant had major health problems. Nevertheless, that general finding made in 1993 does not justify the conclusion that the Parliament and its medical officer should have taken into account the disputed medical certificates for the period before 23 October 1991, so as to enable the applicant's salary to be paid during her absences. Although the Invalidity Committee found that the possibility of the applicant's resuming work was not excluded in 1993, that opinion does not constitute a new fact in relation to medical certificates referring to circumstances which came about nearly two years previously. It cannot therefore justify the absences of the applicant which were not explained by a medical certificate. The Committee's opinion did not, therefore, cause the time allowed for bringing an action to start running afresh (paragraph 50).

See: 231/84 Valentini v Commission [1985] ECR 3027, para. 14; T-58/89 Williams v Court of Auditors [1991] ECR II-77, para. 39

As for the possible existence of an excusable error, it is settled case-law that, in the context of time-limits for initiating proceedings, which are a matter of public policy and not subject to the discretion either of the Court or of the parties, that concept must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person (paragraph 52).

See: C-255/90 P Búrban v Parliament [1992] ECR I-2253, para. 24; T-33/89 and T-74/89 Blackmann v Parliament [1993] ECR II-249, para. 34; T-514/93 Cobrecaf and Others v Commission [1995] ECR II-621, para. 40

Even if the applicant was in some confusion, having waited for the various disciplinary and medical procedures concerning her to result in the adoption of a clear and precise position by the Parliament before deciding how she would continue to defend her interests, that cannot be said to constitute an excusable error. The Parliament has not shown itself to have acted in a manner likely to give rise to such an attitude on her part. Moreover, the wish demonstrated by the applicant to await the adoption by the Parliament of a clear and precise position must be regarded as an independent decision on her part as regards the choice of steps she would subsequently take in relation to the Parliament, thereby excluding the possibility of her being the victim of confusion giving rise to error. The action is therefore inadmissible in so far as it refers to the period before the complaint of 23 October 1991 (paragraphs 53 and 54).

The period subsequent to the complaint

This action is purely compensatory in character, and does not seek the annulment of any administrative measure. It was therefore not necessary, before bringing such an action, to make a request under Article 90(1) of the Staff Regulations within the time-limit laid down by that provision. Nevertheless, an official who has not challenged in time a decision of the appointing authority concerning him cannot rely on the alleged unlawfulness of that decision in an action for compensation. It therefore has to be considered whether the applicant complied with the time-limits for challenging the various decisions of the Parliament which were made concerning her (paragraph 55).

See: 106/80 Foamier v Commission [1981] ECR 2759, para. 17; 401/85 Schina v Commission [1987] ECR 3911. 3929; T-44/93 Saby v Commission [1995] ECRSC II-541, paras 22 and 33

(a) The period from the second half of July until 6 October 1991

No remuneration was paid for this period. Payment of the applicant's salary was suspended as from 2 April 1991 by a decision of the appointing authority of 30 May 1991 taken under Article 60 of the Staff Regulations on the grounds of her unauthorized absence. That decision, which was communicated to the applicant by a telegram the same day, constituted an act adversely affecting her within the meaning of Article 90(2) of the Staff Regulations. In her complaint of 23 October 1991, the applicant referred only indirectly to this period. Even if the complaint did refer to it, the fact remains that the applicant did not bring an action against the rejection of her complaint within the time-limit laid down by Article 91 of the Staff Regulations. Nor did she make an independent complaint against the measure adversely affecting her which was taken on 30 May 1991. Nor did she make any complaint within the time-limit prescribed by the Staff Regulations contesting her pay slip for November 1991, even though it showed that she had not received any remuneration for the above period (paragraphs 56 and 57).

See: T-64/92 Chavarte de Dalmassy and Others v Commission [1994] ECR-SC II-723, para. 20

(b) The months of October, November and December 1991 and January, February and March 1992

The Parliament issued six pay slips for this period. The applicant did not, within the time-limit laid down by Article 90(2) of the Staff Regulations, submit any complaints contesting those slips, arguing that the deductions in question were unjustified. Although those pay slips constituted acts adversely affecting the applicant, no pre-litigation procedure was initiated to dispute them (paragraph 58).

See: Chavane de Dalmassy and Others v Commission, cited above

(c) The months of April and May 1992

There are no pay slips for April and May 1992. The telegram of 24 March 1992 can hardly be regarded as an act adversely affecting the applicant, since it announces the suspension of salary subject to a condition. It is more in the nature of a preparatory act. The actual decision suspending payment of salary, which constituted the act adversely affecting the applicant, was taken and implemented later by the Parliament's officials, without the Parliament addressing to the applicant any communication relating to that decision. It therefore needs to be considered when the three-month period for lodging a complaint against the new decision to suspend salary payments started to run. Under Article 90(2) of the Staff Regulations, in the case of a measure affecting a specified person, the period starts to run, at the latest, as from the day on which the person concerned ‘received notification’ of the measure. The applicant received, for the month of August 1992, a pay slip covering part of June and the whole of July and August 1992. The applicant therefore knew, by that time at the latest, that nothing had been paid to her for the months of April and May 1992. At that time, she could have submitted a complaint against the decision which suspended payment of her salary, but nevertheless she failed to do so (paragraphs 59 and 60).

(d) The months from June to December 1992

For the months from June to December 1992, there are pay slips in existence which the applicant did not contest by submitting a complaint within the prescribed time-limit. Any action for annulment against those measures would be inadmissible for lack of any pre-litigation procedure (paragraph 61).

The following more specific points should be noted. The applicant resumed work on 10 June 1992. Four days of annual leave were recovered for the months of April and May 1992. The applicant did not submit a specific complaint contesting the pay slip for August 1992, which shows nonpayment for those days. The documents before the Court show that the applicant received annual travel expenses with her salary for August 1992. The applicant was not paid for 12 October 1992, since her sick leave ended on 9 October 1992 and she did not recommence work until 13 October 1992. She did not submit any specific complaint, within the prescribed time-limit, contesting the pay slip for December 1992 which showed nonpayment for that day. Nor was the applicant paid for 2 and 3 December 1992, as she was absent from work on those days without submitting a medical certificate. She did not submit a complaint within the prescribed time-limit contesting the pay slip for February 1993, which showed nonpayment for those days (paragraphs 62 to 65).

(e) Leave entitlement for 1992

As for compensation for leave not taken in 1992, the letters from the Parliament to the applicant show that her absence was regarded as unauthorized as from 1 February 1992, and that the days on which she was absent were deducted from her annual leave. That leave having been exhausted on 1 April 1992, payment of the applicant's salary was suspended as from that date. Her request for annual leave for the period from 15 to 23 December 1992 was therefore refused. On the assumption that the applicant did submit a complaint - in the form of her letter to the Secretary-General mentioned in the Parliament's letter of 16 December 1992 -, that complaint was rejected by the Parliament. That constituted a pre-litigation procedure in two stages, but the time-limit for bringing an action for annulment was not complied with. On the assumption that the applicant did not submit a complaint, an action for annulment would be inadmissible for lack of any pre-litigation procedure (paragraphs 66 and 67).

(f) General observations

It needs to be considered once again whether the applicant's letter of 7 September 1993 caused time to start running afresh. The opinion of the Invalidity Committee which preceded that letter contains merely a general medical finding made in 1993, which does not justify the conclusion that the disputed medical certificates presented in 1992 should have been accepted by the Parliament and its medical officer, especially if it is borne in mind that the committee's opinion did not exclude the possibility of the applicant resuming work. The opinion cannot justify the applicant's absences which were not explained by a medical certificate. Therefore, the applicant did not comply with the time-limits applicable to the administrative procedures which should have preceded her action for annulment. The time-limits in question could not be suspended on grounds of equity or by means of an interpretation of the Staff Regulations. The applicant has not pleaded the existence of unforeseeable circumstances or force majeure within the meaning of Article 42 of the EC Statute of the Court of Justice, which applies to the procedure before the Court of First Instance (paragraphs 68 to 70).

Nor is there an excusable error, since in no instance has the institution's conduct been such as could have led the applicant to believe that an opinion of the Invalidity Committee would have a suspensory effect on the time-limits. Nor does the applicant's wish to challenge ‘inaction’ on the part of the Parliament constitute an excusable error (paragraphs 71 and 72).

Thus the applicant's claims for pecuniary compensation founder on the obstacle constituted by the definitive nature of the acts adversely affecting her, which she did not challenge in time. Since any action for the annulment of those acts would be inadmissible, it follows from the case-law that the action for compensation is similarly inadmissible in so far as it refers to the period subsequent to the complaint of 23 October 1991 (paragraph 73).

Operative part:

The application is dismissed as inadmissible.