ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

25 April 2012

Case F‑108/11

Valentin Oprea

v

European Commission

(Civil service — Open competition — Non-admission to the competition — Pre-litigation procedure — Procedural irregularity — Manifest inadmissibility)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Oprea seeks annulment of the decision of the selection board for open competition EPSO/AD/198/10 not to admit him to that competition for non-compliance with the requirements relating to professional experience.

Held: The action is dismissed as manifestly inadmissible. The applicant is to pay the costs in their entirety.

Summary

1.      Officials — Actions — Prior administrative complaint — Complaint against a decision of a competition selection board — Not necessary — Submission — Point when prescribed period for bringing an action begins to run — Date of notification of the decision on the complaint

(Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Prior administrative complaint — Decision explicitly rejecting the complaint — Definition — Email obviously sent in error and clearly concerning a different situation from the applicant’s — Not included

1.      According to Article 91(2) of the Staff Regulations, an action in a staff case is admissible only if the appointing authority has previously had a complaint submitted to it and the complaint has been rejected by an express or implied decision.

However, the Courts of the European Union have stated that the condition in Article 91 of the Staff Regulations refers only to measures which the appointing authority can review, with the result that the legal remedy available regarding decisions of a competition selection board normally consists of a direct application to the Courts of the European Union.

If the person concerned nevertheless chooses to submit an administrative complaint against a decision of a selection board to the administration first, the admissibility of an action brought subsequently against a decision rejecting that complaint will depend on his compliance with all the procedural requirements applicable to the prior complaint. In particular, inasmuch as a complaint is submitted against a decision of a selection board, the prescribed period for bringing an action begins to run, in accordance with Article 91 of the Staff Regulations, from the day on which the decision taken in response to the complaint is notified to the applicant.

(see paras 14-16)

See:

16 March 1978, 7/77 Ritter von Wüllerstorff und Urbair v Commission, para. 9; 14 July 1983, 144/82 Detti v Court of Justice, paras 16 and 17

27 June 1991, T‑156/89 Valverde Mordt v Court of Justice, para. 90; 31 May 2005, T‑294/03 Gibault v Commission, para. 22

23 November 2010, F‑50/08 Bartha v Commission, paras 25 and 26

2.      An email obviously sent in error and clearly concerning a situation which was not that of the applicant cannot be considered to be an explicit decision rejecting a complaint.

(see para. 20)