ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
25 November 2015 (*)
(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)
In Case F‑125/14,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Michela Curto, former accredited parliamentary assistant at the European Parliament, residing in Genoa (Italy), represented by L. Levi and C. Bernard-Glanz, lawyers,
applicant,
v
European Parliament, represented by M. Dean and S. Alves, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL
(First Chamber),
composed of R. Barents (Rapporteur), President, E. Perillo and J. Svenningsen, Judges,
Registrar: W. Hakenberg,
makes the following
Order
1 By application received at the Registry of the Tribunal on 27 October 2014, Ms Curto has sought the annulment of the European Parliament’s decision of 5 December 2013 terminating her contract as an accredited parliamentary assistant, the annulment, so far as necessary, of the decision rejecting the complaint she submitted against that decision and an order that the Parliament pay her EUR 65 000 in respect of compensation.
Legal context
2 The legal context of the present case consists of Articles 90 and 91 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
Factual background to the dispute
3 On 16 July 2013, the applicant was recruited by the Parliament as an accredited parliamentary assistant (‘APA’) in order to assist Ms Y, Member of the Parliament. The applicant’s contract stipulated that the end of that contract was governed by Article 139 of the version of the Conditions of Employment of Other Servants of the European Union then in force.
4 On 7 November 2013, Ms Y submitted a request for the early termination of the applicant’s contract to the Recruitment and Transfers Unit of the Parliament’s Directorate-General for Personnel (‘the Recruitment Unit’).
5 From 7 to 24 November 2013, the applicant was placed on sick leave due to ‘décompensation anxieuse à la suite de problèmes de harcèlement au travail’ [decompensation of anxiety following harassment problems at work].
6 By letter of 11 November 2013, Mr Z, the Head of the Recruitment Unit, informed the applicant of his decision to end her contract on account of a breakdown in the relationship of trust (‘the letter of 11 November 2013’ or ‘the decision of 11 November 2013’).
7 On 5 December 2013, the authority empowered to conclude contracts of employment (‘the AECE’) adopted a decision fixing the date on which the applicant’s contract would end as 24 December 2013 (‘the decision of 5 December 2013’).
8 On 5 March 2014, the applicant submitted a complaint against the decision of 5 December 2013.
9 That complaint was rejected on 16 July 2014 as inadmissible inasmuch as it was directed against the decision of 5 December 2013 and not against the letter of 11 November 2013. On the other hand, the complaint was declared well-founded having regard to the plea relating to the calculation of the period of notice since that period should have expired on 27 December 2013 and not 24 December 2013.
Forms of order sought
10 The applicant claims that the Tribunal should:
– declare the action admissible;
– annul the decision of 5 December 2013;
– annul, in so far as necessary, the decision partially rejecting the complaint;
– order the Parliament to pay her the salary and the allowances which she should have received until the end of the 2009-2014 legislature;
– order the Parliament to pay compensation for the harm suffered on account of the loss of an opportunity of securing a position at the Parliament after the 2009-2014 legislature, evaluated ex æquo et bono at EUR 50 000, subject to being increased or decreased in the course of the proceedings;
– order the Parliament to pay compensation for the non-material harm suffered, evaluated ex æquo et bono at EUR 15 000, subject to being increased or decreased during the course of the proceedings;
– order the Parliament to pay the costs.
11 The Parliament contends that the Tribunal should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicant to pay all the costs.
Law
The Tribunal’s decision to rule by reasoned order
12 Under Article 81 of the Rules of Procedure, where the action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may give a decision by reasoned order without taking further steps in the proceedings.
13 In particular, pursuant to settled case-law, the dismissal of an action by reasoned order made on the basis of Article 81 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case-file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief (orders of 10 July 2014 in Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 39, and of 23 April 2015 in Bensai v Commission, F‑131/14, EU:F:2015:34, paragraph 28).
14 In the present case, the Tribunal considers itself to be sufficiently informed by the documents before it to give a ruling and has thus decided that it is appropriate to apply Article 81 of its Rules of Procedure and, accordingly, to give a ruling by reasoned order without taking further steps in the proceedings.
Admissibility
Arguments of the parties
15 The applicant, who of her own motion in the application addressed the issue of the admissibility of her complaint and, accordingly, of her action, first claims that the act adversely affecting her is not the letter of 11 November 2013 but the decision of 5 December 2013. She submits that the letter of 11 November 2013 was signed by Mr Z in his capacity as Head of Unit and not in his capacity as the AECE. Furthermore, she submits, that letter does not state the precise date on which her contract would end and therefore cannot produce binding legal consequences likely directly and immediately to affect her position and her interests.
16 Secondly, the applicant states that the decision of 5 December 2013 does not refer to the letter of 11 November 2013, which indicates that the latter is not the act adversely affecting her. If the letter of 11 November 2013 were to be deemed an act adversely affecting her, the decision of 5 December 2013 should mandatorily have referred to that letter, since the sole purpose of that decision, according to the Parliament, was to fix the date on which her contract would end.
17 Moreover, the applicant claims that there are a number of particulars in the decision of 5 December 2015 which clearly show that it was by nature a decision, in particular the heading ‘Decision’ by ‘the [AECE]’ and the covering e-mail referring to ‘a scan of the decision concerning the end of [her] contract’, in contrast to the covering e-mail for the decision of 11 November 2013, which refers to ‘a scan of the letter concerning [her] contract’.
18 The applicant next refers to the judgment of 12 December 2013 in CH v Parliament (F‑129/12, EU:F:2013:203), concerning a case in which, she submits, the APA concerned received a letter drafted on exactly the same lines as the letter of 11 November 2013, and a decision adopted in the same form as that of 5 December 2013. In that case, neither the Parliament nor the Tribunal called into question the fact that the act adversely affecting the applicant was not the letter but the act headed ‘Decision’.
19 Lastly, the applicant submits that it is surprising that the Parliament would use an informal letter to inform her officially of her dismissal, while taking the trouble to adopt a formal decision. In her view, that approach is not consistent with the principle of sound administration.
20 The Parliament contends that the decision to terminate the applicant’s contract was contained in the decision of 11 November 2013 and not that of 5 December 2013, the latter decision merely fixing as 24 December 2013 the date on which her contract would end, following the suspension of her period of notice due to sick leave. The decision of 11 November 2013, it submits, constitutes an act adversely affecting the applicant inasmuch as it directly affects her legal position by terminating her contract. In that letter, the AECE clearly states that it had ‘decided to terminate [her] contract’ and that the applicant’s employment ‘[would] cease at the end of a one-month notice period which [would] start the day after reception of [that decision]’.
21 The Parliament argues that, contrary to what is claimed by the applicant, the decision of 11 November 2013 contains the definitive position adopted by the AECE with regard to the termination of her contract, sets out the ground for dismissal (loss of trust) in accordance with the second paragraph of Article 25 of the Staff Regulations, and was adopted by the AECE (the Head of the Recruitment Unit). That decision also states that the applicant would be informed subsequently of the exact date on which her contract would end. According to the Parliament, the AECE always sent a second decision specifying the contract end-date.
22 The Parliament secondly submits that it cannot be concluded that the decision of 5 December 2013 is not the decision to terminate the applicant’s contract simply because that decision does not refer to the decision of 11 November 2013. It is clear, from the reference to the suspension of the period of notice due to sick leave, that the decision of 5 December 2013 merely confirms the decision of 11 November 2013.
23 The Parliament further submits that the letter of 11 November 2013 includes all the necessary features of a decision and is moreover in accordance with the second paragraph of Article 25 of the Staff Regulations. That letter also states that the applicant was not to report to the office for the duration of the period of notice and was to return her employee badge and Special Identity Card to the relevant departments no later than her last day of work.
24 As regards the applicant’s argument referring to the judgment of 12 December 2013 in CH v Parliament (F‑129/12, EU:F:2013:203), the Parliament maintains that, in that case, the two decisions were sent the same day and were drafted differently from the decisions of 11 November 2013 and 5 December 2013. That case thus cannot be relied upon in any way to support the applicant’s argument that the letter of 11 November 2013 is not the decision terminating her contract. The Parliament explains that its practice is always to send an initial decision terminating the contract of the APA at the end of the applicable period of notice, which starts to run the day after that decision is received, and a second decision which merely confirms the dismissal decision and informs the APA of the precise date on which his contract is to end. That second decision does not contain any new information in relation to the initial decision, so far as the dismissal is concerned, and is not preceded by a re-examination of the situation of the addressee of the earlier act.
25 Lastly, the Parliament disputes the applicant’s claim that the decision of 11 November 2013 is an informal letter and that of 5 December 2013 is a formal decision. It submits that the decision of 11 November 2013 indisputably terminates the applicant’s contract and the applicant would have been informed on reading it of the act adversely affecting her.
26 The Parliament therefore argues that the dismissal decision is the decision of 11 November 2013, of which the applicant was notified the same day. Accordingly, she should have submitted a complaint within a period of three months of that decision, that is by 11 February 2014 at the latest. Since the complaint was not submitted until 5 March 2014, the action, in the Parliament’s view, is inadmissible.
Findings of the Tribunal
27 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 (orders of 4 June 1987 in P. v ESC, 16/86, EU:C:1987:256, paragraph 6; of 11 May 1992 in Whitehead v Commission, T‑34/91, EU:T:1992:64, paragraph 18; and of 10 September 2007 in Speiser v Parliament, F‑146/06, EU:F:2007:153, paragraph 21).
28 It must be recalled in this connection that, 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.
29 It is settled case-law that 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 satisfied (order of 7 September 2005 in Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 35 and the case-law cited therein).
30 It is also apparent from case-law that 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 position of the person concerned (judgment of 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; of 7 September 2005 in Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 38; and of 10 September 2007 in Speiser v Parliament, F‑146/06, EU:F:2007:153, paragraph 23).
31 In the present case, it is necessary to ascertain, first, what constitutes the act adversely affecting the applicant and the date on which the applicant was informed of that act and, secondly, whether the complaint against that act was submitted within the time-limit laid down in Article 90(2) of the Staff Regulations.
32 By letter of 11 November 2013, the applicant was informed that ‘[a decision had been made] to terminate [her] contract’ in accordance with Article 139(1)(d) of the version of the Conditions of Employment of Other Servants of the European Communities then in force. That letter also stated the reason for terminating her contract, namely Ms Y’s request alleging a breakdown in the relationship of trust between herself and the applicant, and requested the applicant not to report to the office for the duration of her period of notice. The letter concerned also requested the applicant to take certain actions linked to the end of her contract, namely to return the badge provided by the Parliament and the Special Identity Card no later than her last day of work. Lastly, the letter stated that she would receive a certified true copy of the decision specifying the date on which the employment relationship would be terminated.
33 It follows that the letter of 11 November 2013, received the same day by e-mail, does not leave scope for any doubt that the AECE intended to terminate the applicant’s contract and therefore constitutes an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations.
34 That finding that the letter of 11 November 2013 is an act adversely affecting the applicant is not called into question by the latter’s arguments.
35 The applicant’s argument that the decision of 5 December 2013 constitutes the act adversely affecting her, against which her action should be directed, must be rejected. That decision, which fixes the date on which her contract would end as 24 December 2013, cannot be described as anything other than a mere confirmation of the decision of 11 November 2013.
36 It is settled case-law that 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 a mere confirmation of an earlier 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 earlier act was addressed (judgments of 9 March 1978 in Herpels v Commission, 54/77, EU:C:1978:45, paragraphs 11 to 14; of 10 December 1980 in Grasselli v Commission, 23/80, EU:C:1980:284, paragraph 18; orders of 19 December 2006 in Suhadolnik v Court of Justice, F‑78/06, EU:F:2006:141, paragraph 31; of 15 July 2008 in Pouzol v Court of Auditors, F‑28/08, EU:F:2008:100, paragraph 45; and of 8 September 2011 in Pachtitis v Commission, F‑51/11 R, EU:F:2011:130, paragraph 28).
37 In the present case, since the decision of 5 December 2013 merely informs the applicant of the exact date on which her contract would end and does not contain any new information in relation to the particulars contained in the letter of 11 November 2013, it does not constitute an act adversely affecting her within the meaning of Article 90(2) of the Staff Regulations.
38 Even though the decision of 5 December 2013 does not refer expressly to the letter of 11 November 2013 as such, that fact cannot retrospectively prevent the letter of 11 November 2013 from being deemed an act adversely affecting the applicant. Moreover, contrary to what is claimed by the applicant, namely that the letter of 11 November 2013 is not presented as a decision, it is sufficient to observe that the nature of an act does not depend on its form or heading, but on its content.
39 The fact that the covering e-mail with the decision of 11 November 2013 referred to ‘a scan of the letter concerning [her] contract’ is of no account, given that a covering letter for an act, by its very nature, cannot change the legal classification of that act.
40 Secondly, the fact that the letter of 11 November 2013 was signed by Mr X in his capacity as Head of Unit and not in his capacity as the AECE is irrelevant for the purposes of determining the legal classification of that letter, since it is not disputed that in the present case the author of that letter is the AECE entitled to terminate an APA contract.
41 Lastly, the comparison made with the judgment of 12 December 2013 in CH v Parliament (F‑129/12, EU:F:2013:203) is irrelevant since, in that case, neither the court nor the parties raised the issue of what constituted the act adversely affecting the applicant, given that the ‘letter’ and the ‘decision’ bore the same date.
42 In those circumstances, since the act adversely affecting the applicant was the letter of 11 November 2013 and the complaint brought by the applicant was submitted on 5 March 2014, it must be held that the complaint was brought outwith the period prescribed by Article 90(2) of the Staff Regulations and is thus out of time.
43 It follows from all the foregoing considerations that the claims for annulment must be rejected as manifestly inadmissible on the ground that the preliminary complaint was submitted out of time.
The claim for compensation
44 According to consistent case-law in the civil service field, where a claim for compensation is, as in the present case, closely connected with a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for compensation (see judgments of 30 September 2003 in Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43; of 4 May 2010 in Fries Guggenheim v Cedefop, F‑47/09, EU:F:2010:36, paragraph 119; and of 1 July 2010 in Časta v Commission, F‑40/09, EU:F:2010:74, paragraph 94).
45 In the present case, the claims for annulment have been rejected as manifestly inadmissible.
46 Consequently, the claim for compensation must also be rejected.
47 It follows from all the foregoing that the application must be dismissed in its entirety.
Costs
48 Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
49 It is apparent from the grounds set out in the present order that the applicant’s action has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly requested that the applicant be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Parliament.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Ms Curto shall bear her own costs and is ordered to pay the costs incurred by the European Parliament.
Luxembourg, 25 November 2015.