ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

5 December 2012

Case F‑109/12

Sabine Scheidemann

v

European Parliament

(Civil service — Officials — Inter-institutional transfer during the promotion exercise during which the official was eligible for promotion in her institution of origin — Application to benefit from a retroactive promotion — Express rejection which took effect after the implied decision — Time-limit for lodging a complaint — Out of time — Manifest inadmissibility)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Scheidemann, an official of the European Commission, seeks, in essence, annulment of the decision of the European Parliament of 20 December 2011 rejecting her request to benefit from a retroactive promotion with effect from 1 January 2010.

Held: The action is dismissed as manifestly inadmissible. The applicant is to bear her own costs.

Summary

1.      Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — To be considered of the Tribunal’s own motion

(Staff Regulations, Arts 90 and 91)

2.      Actions brought by officials — Prior administrative complaint — Implied decision rejecting a request which is not challenged within the prescribed period — Subsequent express decision — Confirmatory measure

(Staff Regulations, Arts 90 and 91)

1.      The time-limit of three months for lodging a complaint against an act adversely affecting an official, laid down by Article 90 of the Staff Regulations, is a matter of public policy and not subject to the discretion of the parties or the Tribunal, 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 Courts of the European Union to verify, of their own motion, whether that time-limit has been complied with.

The fact that an institution has not pointed out, in its reply to an administrative complaint, that the complaint was out of time and therefore inadmissible, or that it has even expressly stated that the applicant could still bring judicial proceedings, has no bearing on the admissibility of an appeal under Article 90(2) of the Staff Regulations. Such circumstances cannot result in a derogation from the system of mandatory time-limits established by Articles 90 and 91 of the Staff Regulations and still less exempt the Tribunal from its obligation to verify that the time-limits laid down in the Staff Regulations have been complied with.

(see paras 17, 20)

See:

7 September 2005, T‑358/03 Krahl v Commission, para. 35 and the case-law cited; 15 January 2009, T‑306/08 P Braun-Neumann v Parliament, para. 37 and the case-law cited

2.      The express rejection of a request after an implied decision rejecting that same request is a purely confirmatory measure that cannot enable the official concerned to continue the pre-litigation procedure by opening for him a new period for lodging a complaint. Furthermore, although the second indent of Article 91(3) of the Staff Regulations provides that where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal is to start to run afresh, that rule relates only to the period for lodging an appeal against a decision rejecting a complaint, and does not apply to the time-limit for lodging a complaint against a decision rejecting a request. The second indent of Article 91(3) of the Staff Regulations is a specific provision relating to the rules for calculating periods for filing appeals, and must be interpreted literally and strictly.

(see paras 18-19)

See:

5 July 2011, F‑73/10 Coedo Suárez v Council, paras 37 and 38 and the case-law cited