ORDER OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

30 June 2011

Case F‑88/10

Marc Van Asbroeck

v

European Commission

(Civil service — Officials — Decision on classification in intermediate grade — Request for re-examination — Substantial new fact — None — Action manifestly inadmissible)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Van Asbroeck seeks, principally, first, annulment of the Commission’s decision refusing to reclassify him, with retroactive effect from 1 May 2004, in intermediate grade D*4, step 8, and to reconstruct his career, and second, an order for the Commission to pay compensation for the financial harm allegedly suffered.

Held:      The action is dismissed as manifestly inadmissible. The applicant is to bear all the costs.

Summary

Officials — Actions — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Reopening — Condition — New and material fact

(Staff Regulations, Arts 90 and 91)

A decision which has not been challenged by its addressee within the time-limit laid down becomes definitive as against that person. However, the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive. An action brought against a decision refusing to reconsider a decision which has become definitive will be declared admissible if it appears that the request was indeed based on substantial new facts. On the other hand, if it appears that the request was not based on such facts, an action against the decision refusing to reconsider it will be declared inadmissible.

An official who has not challenged, within the time-limits laid down in the Staff Regulations, a decision classifying him in an intermediate grade cannot reasonably request reconsideration solely on the ground that the communication of his pay slip was the first time that he was able to see the impact on his remuneration of the unlawfulness of the Commission’s decision regarding the introduction of a compensatory allowance in favour of officials who changed category before 1 May 2004. However, even if that decision was unlawful, that circumstance could not be regarded as a substantial new fact such as to justify reconsideration of the decision to classify him in an intermediate grade, since the decision in question merely laid down the rules for calculating the trans-category allowance. The adoption by an institution other than that employing the official of a decision reclassifying certain officials also cannot constitute a substantial new fact, since that decision does not directly concern the official in question.

(see paras 43-47)

See:

26 September 1985, 231/84 Valentini v Commission, para. 14

7 February 2001, T‑186/98 Inpesca v Commission, paras 47 and 49 and the case-law cited therein; 16 September 2009, T‑271/08 P Boudova and Others v Commission, para. 48