ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

14 January 2014

Case F‑60/13

Giorgio Lebedef

v

European Commission

(Civil service — Officials — Registration of absences on account of sickness — Unauthorised absence — Deduction made by the Appointing Authority from annual leave — Application made by e-mail — Knowledge of the person concerned that a decision existed — Failure to open an e-mail and to investigate, by clicking on a hyperlink, the content of that decision — Admissibility — Time-limits –Determination of the date at which the person involved could become aware of the content of the decision)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Lebedef seeks annulment of an allegedly implied decision, to reject his request, made on 13 April 2012, for the European Commission to rectify the entries in respect of certain of his absences in the software system used within that institution to manage staff absences (‘SysPer2’), and annulment of the express decision of 24 July 2012 with regard to that request (‘the decision of 24 July 2012’) in so far as it deducted five days from the applicant’s leave entitlements.

Held:      The action is dismissed as manifestly inadmissible. Mr Lebedef is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Actions brought by officials — Prior administrative complaint — Time-limits — Point from which time starts to run — Notification — Definition — E-mail notifying the existence and availability of a decision — Included — Date to be adopted — Possible date on which the official may have had effective knowledge of the content of the decision

(Staff Regulations, Arts 90 and 91)

2.      Actions brought by officials — Prior administrative complaint — Time-limits — Express decision, not contested within the period prescribed, rejecting a request — Later communication referring to the earlier decision — Re-opening of limitation period — Not included

(Staff Regulations, Arts 90 and 91)

1.      For a decision to be duly notified, within the meaning of Articles 90 and 91 of the Staff Regulations, it must not only have been communicated to its addressee, but the addressee must also have been able to have effective knowledge of its content.

In particular in a situation where the person concerned is in active employment within the meaning of Article 35(a) of the Staff Regulations, it must be considered that, in principle, where the administration agrees to the submission by e-mail of a request within the meaning of Article 90(1) of the Staff Regulations, in the present case from the office e-mail address provided by the administration, the administration is entitled, given the choice of that method of communication made by the official concerned himself and under the principle of parallelism of forms, also to reply to that official by sending an e-mail from the e-mail address of the appointing authority, the addressee of the official’s request, to the official’s office e-mail address.

An institution cannot presume that an internal e-mail, in the present case an e-mail notifying the existence and availability on-line of a decision of the appointing authority, has reached the addressee because he is physically present at his place of work. However, such a presumption may be made where the institution concerned relies, not only on mere indications, but also on evidence, including that provided by the official concerned, showing that, as the addressee, he received an e-mail at his office e-mail address and that, in all probability, he was able to open it and thus, by means of a hyperlink, have effective knowledge of the decision, the existence of which was thus notified in the e-mail.

The fact that the administration did not ask the official concerned to acknowledge that he had read the e-mail is irrelevant as regards the date on which it may be considered that the official concerned was able to have effective knowledge of the appointing authority’s decision, given that the official concerned sorted out which messages he read according to those which he regarded as being important and, hence, which he considered it appropriate to acquaint himself with.

(see paras 39, 42-44, 46, 47)

See:

15 June 1976, 5/76 Jänsch v Commission, para. 10

25 April 2007, F‑71/06 Lebedef-Caponi v Commission, paras 29 to 31 and 34; 7 October 2009, F‑101/08 Pappas v Commission, para. 43; 16 December 2010, F‑25/10 AG v Parliament, paras 38 and 39

2.      An e-mail from the administration merely informing an official of the existence of an express decision rejecting his request, which he failed to investigate, cannot have the effect of setting for him a fresh time-limit for lodging a complaint against that decision.

Article 91(3), second indent, of the Staff Regulations concerns time-limits for bringing proceedings before the Civil Service Tribunal, and in any event cannot be relied upon to support a legal fiction whereby an express decision can, following the adoption of an allegedly implicit decision, initiate another time-limit for lodging a complaint whenever the complainant finally deigns to acquaint himself with the administration’s express reply.

(see paras 51-52)

See:

10 December 1980, 23/80 Grasselli v Commission, para.18; 21 November 1990, C‑12/90 Infortec v Commission, para. 10

9 January 2007, T‑288/04 Van Neyghem v Committee of the Regions, para. 52

10 May 2011, F‑59/10 Barthel and Others v Court of Justice, para. 27