JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

8 September 2008

Case T-222/07 P

Petrus Kerstens

v

Commission of the European Communities

(Appeal – Civil service – Officials – Career development report – Time-limit for lodging a complaint – Lateness – Appeal not founded)

Appeal: brought against the order of the European Civil Service Tribunal (Second Chamber) of 25 April 2007 in Case F-59/06 Kerstens v Commission [2007] ECR-SC I-A-0000 and II-A-1-0000, and seeking annulment of that order.

Held: The appeal is dismissed. Mr Petrus Kerstens is ordered to pay the costs.

Summary

1.      Appeals – Purpose – Heads of claim seeking to have the case referred to a different chamber of the Civil Service Tribunal – Inadmissible

(Rules of Procedure of the Court of First Instance, Art. 139(1))

2.      Procedure – Decision given by reasoned order – Conditions – Action manifestly inadmissible or manifestly lacking any foundation in law

(Rules of Procedure of the Court of First Instance, Art. 111; Council Decision 2004/752, Art. 3(4))

3.      Procedure – Decision given by reasoned order – Conditions – Hearing of the Advocate General

(Rules of Procedure of the Court of First Instance, Art. 111; Council Decision 2004/752, Art. 3(4))

4.      Procedure – Decision given by reasoned order – Conditions – Action manifestly inadmissible or manifestly lacking any foundation in law

(Rules of Procedure of the Court of First Instance, Art. 111; Staff Regulations, Art. 90(2))

5.      Procedure – Measures of organisation of procedure – Request to rule on the admissibility of the appeal in the light of documents supplied by the defendant in its challenge addressed to the applicant – Observance of the inter partes principle

(Rules of Procedure of the Court of First Instance, Arts 44, 46 and 64(3))

1.      A head of claim seeking to have the Court of First Instance refer the case to a different chamber of the Civil Service Tribunal does not correspond to any of the categories of claims listed exhaustively in Article 139(1) of the Rules of Procedure of the Court of First Instance and must therefore be declared inadmissible.

(see para. 24)

2.      Until its own Rules of Procedure come into force, the Civil Service Tribunal may, on the basis of Article 111 of the Rules of Procedure of the Court of First Instance, decide to rule on the manifest inadmissibility of the action without opening the oral procedure if it considers that it has sufficient information from the documents in the file, without having to obtain the parties’ agreement, and even after having allowed two exchanges of pleadings.

(see paras 32, 34, 35)

See: C‑360/02 P Ripa di Meana v Parliament [2004] ECR I‑10339, para. 35

3.      Since the fact that Article 111 of the Rules of Procedure of the Court of First Instance applies mutatis mutandis to proceedings before the Civil Service Tribunal until the Tribunal’s own Rules of Procedure come into force necessarily means that account must be taken of the internal organisation of the Tribunal, that provision cannot make it necessary for an advocate general, much less an impartial and independent third party, to be involved in proceedings before the Civil Service Tribunal. Neither the EC Treaty, Decision 2004/752 nor the Statute of the Court of Justice provides that the Civil Service Tribunal is to be assisted by advocates general. Furthermore, there is also no provision that in certain particular cases a member of the Civil Service Tribunal may be appointed by the Tribunal to perform the duties of an advocate general.

(see paras 49-50)

4.      While it is true that the determination of the exact moment when a person was apprised of an act adversely affecting him may be contested between the parties and may require the Community judicature to assess various items of evidence or even to adopt measures of organisation of procedure, however, since the Community judicature has precisely determined the dies a quo for lodging a complaint, exceeding the period of three months provided for in Article 90(2) of the Staff Regulations automatically renders the action manifestly inadmissible, which may be decided by reasoned order as provided for in Article 111 of the Rules of Procedure of the Court of First Instance. The manifest nature of the action’s inadmissibility relates to the exceeding of the period for lodging the complaint as such, and not to any difficulty in determining the dies a quo or the exact number of days by which the three month period was exceeded.

(see paras 48, 58)

See: C‑547/03 P AIT v Commission [2006] ECR I‑845, para. 30

5.      It is, in principle, for the parties to adduce evidence in support of their claims. That evidence must, however, be capable of being the subject of submissions by both parties. The fact that, in the context of a measure of organisation of procedure, the Tribunal invited the applicant to give his views in writing on the admissibility of the action in the light of evidence adduced by the defendant in the rejoinder shows that the inter partes principle was observed, since classifying the annex to the rejoinder as evidence does not imply any judgment of its evidential value.

(see paras 73-75)

See: order of 4 October 2007 in C-100/07 P É.R. and Others v Council and Commission, not published in the ECR, para. 27