ORDER OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

8 July 2009

Case F-62/08

Roberto Sevenier

v

Commission of the European Communities

(Civil service – Officials – Permanent termination of service – Resignation – Application to withdraw)

Application: brought under Articles 236 EC and 152 EA, by which Mr Sevenier seeks, in particular, annulment of the Commission’s decision of 24 September 2007 rejecting his request to withdraw his tender of resignation of 19 October 1983 and for his case to be submitted to the Invalidity Committee.

Held: The action is dismissed as manifestly inadmissible. The applicant is ordered to pay the costs. There is no need to adjudicate on the application by the Council of the European Union for leave to intervene in support of the Commission. The Council is ordered to bear its own costs relating to the application for leave to intervene.

Summary

1.      Officials – Actions – Prior administrative complaint – Time-limit for lodging a complaint – Calculation

(Staff Regulations, Art. 90(1) and (2); Council Regulation No 1182/71, Art. 3)

2.      Officials – Actions – Prior administrative complaint – Implied decision rejecting a request not contested in good time

(Staff Regulations, Arts 90 and 91)

1.      In the absence of specific rules concerning the time-limits referred to in Article 90 of the Staff Regulations themselves, reference should be made to Regulation No 1182/71 determining the rules applicable to periods, dates and time-limits, which applies, as stated in Article 1, to all acts of the Council ‘[s]ave as otherwise provided’. In that respect Article 3(2)(c) of the regulation provides that a period expressed in months ‘shall start at the beginning of the first hour of the first day of the period, and shall end with the expiry of the last hour of whichever day in the last … month … is the same day of the week, or falls on the same date, as the day from which the period runs’. Those provisions are to be interpreted by reference to the second paragraph of Article 3(1) of the regulation, according to which the starting day is the day during which the event occurs, so that if an event which constitutes the starting point for a period of one week occurs on a Monday, the period will end on the following Monday.

(see paras 27-28)

See:

C-171/03 Toeters and Verberk [2004] ECR I‑10945, paras 31-37

T-173/97 Fichtner v Commission [1998] ECR-SC I‑A‑293 and II‑873, para. 28

2.      Although 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 shall start to run afresh’, that provision cannot apply at the stage of the request and before the complaint is lodged. That specific provision, which relates to the rules for calculating periods for filing appeals, must be interpreted literally and strictly. It follows that the express rejection of a request after an implied decision rejecting that same request cannot enable the official concerned to continue the pre-litigation procedure by opening for him a new period for lodging a complaint, as that decision is in the nature of a purely confirmatory measure.

(see para. 33)

See:

T-200/99 Martinelli v Commission [2000] ECR-SC I‑A‑253 and II‑1161, para. 11 and the case-law cited therein