ORDER OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

24 May 2007

Joined Cases F-27/06 and F-75/06

Alessandro Lofaro

v

Commission of the European Communities

(Officials – Member of temporary staff – Extension of probationary period – Dismissal at the end of the probationary period – Acts adversely affecting the applicant – Period for lodging a complaint – Inadmissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lofaro seeks, first, annulment of the decision of the authority empowered to conclude contracts of employment of 6 June 2005 to extend his probationary period as a member of the temporary staff; second, annulment of the same authority’s decision of 28 September 2005 dismissing him; third, annulment of the report at the expiry of his probationary period; and fourth, an order for the Commission to pay him damages.

Held: The actions are dismissed as inadmissible. The parties are to bear their own costs.

Summary

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

(Staff Regulations, Art. 90(2))

2.      Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Art. 90(2))

3.      Officials – Actions – Acts adversely affecting a staff member – Definition – Decision extending the probationary period of a member of the temporary staff

(Staff Regulations, Arts 90 and 91)

1.      Article 90(2) of the Staff Regulations is to be interpreted as meaning that a complaint is ‘lodged’ not when it is sent to the institution, but when the institution receives it. The principle of legal certainty requires that interpretation to be applied, since it is the only way that the administration can know the point at which is set running the period within which it must notify its reasoned decision in reply to the complaint. The fact that an administration places a registration stamp on a document sent to it does not, admittedly, enable it to give a definite date for the lodging of that document. However, it is nevertheless a way, based on sound administrative practice, to establish a presumption that the document arrived on the stated date until proven otherwise.

(see paras 37-39)

See:

195/80 Michel v Parliament [1981] ECR 2861, paras 8 and 13

T-54/90 Lacroix v Commission [1991] ECR II‑749, paras 28 and 29

F-3/05 Schmit v Commission [2006] ECR-SC I‑A‑1‑9 and II‑A‑1‑33, paras 28 and 29

2.      An official is not justified in claiming that the fact that the administration had stated, in its reply to a previous complaint, that the date when that complaint was lodged was the date entered on it by the official, rather than the date when it reached the administration, had led to an excusable error justifying the late lodging of his complaint. The inaccuracy of a date on a document that is, moreover, separate from the decision which is the subject of the new complaint cannot be regarded as liable to give rise to pardonable confusion, concerning the date on which the complaint is to be regarded as lodged within the meaning of Article 90(2) of the Staff Regulations, in the mind of a party acting in good faith and exercising all the diligence expected of a normally experienced person.

Such confusion leading to an excusable error is also not liable to be created by the facts, if proved, that national law in most of the Member States would consider the relevant date for assessing whether an administrative complaint has been lodged in good time to be the date on which it was sent, not the date on which it was received by the administrative authority, or that the Commission uses the date of posting in procedures other than complaints under Article 90(2) of the Staff Regulations, or, finally, that the Commission expressly informs the persons concerned in cases where the date to be taken into account for lodging a complaint or an appeal is the date of receipt.

(see paras 47-49)

3.      Claims for annulment, first, of the decision to extend the probationary period of a member of the temporary staff, and second, of the report at the end of the probationary period on which the authority empowered to conclude contracts of employment has based its decision to dismiss him, are inadmissible. Although the decision to dismiss a staff member constitutes an act adversely affecting him in that it fixes the administration’s definitive position and thereby affects his interests directly and immediately, the same does not apply to the report at the end of the probationary period and the decision to extend the probationary period, which are merely preparatory measures for the dismissal decision.

That conclusion does not have the effect of depriving the applicant of an effective judicial remedy. If a member of staff is dismissed at the end of a probationary period, he may bring an action against that decision and rely on the unlawfulness of acts adopted at an earlier stage which are closely linked to it.

(see paras 59-61, 68, 70)

See:

T-275/02 D v EIB [2005] ECR-SC I‑A‑51 and II‑211, para. 45