ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
16 July 2015
Case F‑20/15
FG
v
European Commission
(Civil service — Officials — Reform of the Staff Regulations — Regulation No 1023/2013 — Types of posts — Transitional rules on grading in the types of posts — Article 30(2) of Annex XIII to the Staff Regulations — Eligibility for promotion to the grade above — Promotion year 2014 — Administrator without ‘special responsibilities’ — Promotion possibilities capped at grade AD 12 — Name of that administrator not included in the list of officials eligible for promotion in grade AD 12 — Possibility of requesting to benefit under Article 30(3) of Annex XIII to the Staff Regulations — Deadline of 31 December 2015 — Admissibility of the action — Concept of measure adversely affecting a person — Amendment of the individual computerised file of the official — Administrative information — Published on the institution’s intranet — Failure to satisfy the requirements of the pre-litigation procedure — Article 81 of the Rules of Procedure)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which FG seeks annulment of the decision of the appointing authority of the European Commission not to include his name on the list of officials proposed for promotion to grade AD 13 in promotion year 2014.
Held: The action is dismissed as manifestly inadmissible. Each party is to bear its own costs.
Summary
1. Officials — Individual decisions — Notification — Procedures — Obligation to use postal service — None
(Staff Regulations, Arts 25, 26, and Annex XIII, Art. 30(2); European Parliament and Council Regulation No 1023/2013)
2. Actions brought by officials — Prior administrative complaint — Time-limits — Complaint lodged out of time — Decision to classify an official in a type of post introduced by Regulation No 1023/2013 shown by amendment of his individual computerised file — Complaint against the failure to include the official in the list of officials eligible for promotion — Inadmissibility
(Art. 336 TFEU; Staff Regulations, Arts 45, 90(2) and 91(1), and Annex XIII, Art. 30(2); European Parliament and Council Regulation No 1023/2013)
3. Actions brought by officials — Act adversely affecting an official — Concept — Refusal to include in the list of officials eligible for promotion — Non-inclusion resulting from an amendment to the Staff Regulations having the effect of capping the careers of administrators at grade AD 12 — Not included
(Staff Regulations, Arts 45, 90(2) and 91(1); European Parliament and Council Regulation No 1023/2013)
1. In the light of the general scheme of the Staff Regulations and, in particular, of Articles 25 and 26 thereof, a decision to classify an official in function group AD in the different types of posts listed in Article 30(2) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013, involving consequences for his eligibility for promotion, must, like decisions on appointment or establishment as an official, be duly notified by the appointing authority to the official concerned, since it is for the appointing authority to ensure that those decisions actually reach their addressee or, as the case may be, that the addressee is duly apprised of them. However, the appointing authority has a number of options for notifying administrative decisions, including electronic means, and is not therefore required to use the postal service for that purpose.
(see paras 46, 70)
See:
Judgment of 28 June 2006 in Grünheid v Commission, F‑101/05, EU:F:2006:58, para. 49, and order of 14 January 2014 in Lebedef v Commission, F‑60/13, EU:F:2014:6, paras 42 to 44
2. With regard to a decision of the appointing authority classifying an official in grade AD 12 in a type of post introduced by Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, where that decision was shown, from 1 January 2014, by the inclusion of a reference in the official’s individual file in the ‘SysPer 2’ staff management information system to his classification in a type of post, that classification in a type of post is indeed an act adversely affecting the official since, in so far as he was, on 31 December 2013, an official in grade AD 12, he could potentially be classified by the appointing authority, under Article 30(2)(c) or (e) of Annex XIII to the Staff Regulations, only in one of the two types of post for that grade, i.e. ‘Head of unit or equivalent’ or ‘Administrator’, it being understood that, pursuant to Article 30(2)(d) of that Annex, the type of post ‘Adviser or equivalent’ is reserved for officials in grades AD 13 and AD 14. Thus, if the appointing authority decided to classify the official concerned in the residual type of post ‘Administrator’, it also decided, by implication, that the official did not occupy, on 31 December 2013, a post of ‘Head of unit or equivalent’.
In that regard, the official concerned cannot reasonably claim that his complaint was late because he was not properly aware of the existence of the classification decision until he was notified of the list of AD 12 officials eligible for promotion, nor can he rely on excusable error. In addition to the fact that new provisions of the Staff Regulations, in so far as they are adopted by means of regulations pursuant to Article 336 TFEU, have to be published in the Official Journal of the European Union, and that from the date of their publication they constitute the substantive rules of which any official exercising normal care is deemed to be aware, the general implementing provisions and decisions on types of posts adopted by the administration should have alerted an official in grade AD 12 exercising normal care, particularly where he is in a senior legal post in a legal department, to the fact that, unless he was recognised as holding ‘special responsibilities’, the entry into force of the reform of the Staff Regulations and the classification in types of posts meant that he would very probably be classified in the type of post ‘Administrator’ and would therefore be capped in his grade.
That being so, notification of the list of AD 12 officials eligible for promotion, in so far as it excluded the official concerned, merely implemented the classification decision, and could not, in a case where the official claims to have omitted to enquire about his classification even though that information was available and easily accessible, create a new time-limit for him to lodge a complaint against the decision concerned.
(see paras 49, 51, 52, 55, 60)
See:
Judgment of 12 July 1989 in Binder, 161/88, EU:C:1989:312, para. 19
Judgment of 19 May 1999 in Connolly v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, para. 168
Orders of 14 January 2014 in Lebedef v Commission, F‑60/13, EU:F:2014:6, paras 44, 48 and 51, and 20 March 2014 in Michel v Commission, F‑44/13, EU:F:2014:40, para. 53
3. It is the decision of the appointing authority adopting the list of promoted officials which may be regarded, so far as concerns a non-promoted official, as an act affecting a specified person which is such as to affect adversely another person, as referred to in the second indent of Article 90(2) of the Staff Regulations. Thus, the list of officials proposed for promotion can only constitute at the most a preparatory measure for that decision and, as regards the loss of eligibility for promotion to grade AD 13 for administrators following the entry into force of Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, that loss of eligibility was not, in any event, decided when the appointing authority adopted the list of officials eligible for promotion or the list of officials promoted in the 2014 promotion year, but was the result of the choice made by the Union legislature in combination with the decision on classification in the type of post ‘Administrator’ with effect from 1 January 2014.
(see para. 63)
See:
Judgment of 19 October 2006 in Buendía Sierra v Commission, T‑311/04, EU:T:2006:329, para. 108 and the case-law cited therein