JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

24 June 2008

Case F-84/07

Agim Islamaj

v

Commission of the European Communities

(Civil service – Officials – Former members of the temporary staff paid from research appropriations – Promotion – Cancellation of points from the ‘rucksack’ – Transfer of an official from the research part to the administration part of the general budget)

Application: brought under Articles 236 EC and 152 EA, in which Mr Islamaj seeks a declaration that Article 2 of the Commission’s decision of 16 June 2004, amended by the decision of 20 July 2005, on detailed rules governing the promotion procedure for officials paid from research appropriations in the general budget is unlawful, and annulment of the Commission’s decision to remove the 38.5 points from his balance which he had accumulated as a member of the temporary staff, the decision not to promote him to grade AST 5 in the 2006 promotion exercise and, in so far as it is necessary, that dismissing his appeal to the Promotion Committee.

Held: The action is dismissed. The applicant is to bear two thirds of his own costs. The Commission is to pay, in addition to its own costs, one third of the applicant’s costs.

Summary

1.      Procedure – Time-limit for instituting proceedings – Claim barred by lapse of time – Excusable error – Definition

(Staff Regulations, Arts 90 and 91)

2.      Officials – Actions – Conditions of admissibility – Heads of claim without pleas or arguments of their own, but linked to other heads of claim – Admissibility

(Rules of Procedure of the Civil Service Tribunal, Art. 35)

3.      Officials – Vacancy – Filled by promotion or transfer – Method to be used not identifiable in advance from the vacancy notice – Candidature to be regarded as a request for transfer or promotion

(Staff Regulations, Arts 29(1)(a) and 45)

4.      Procedure – Costs – Set-off – Exceptional grounds

(Rules of Procedure of the Court of First Instance, Art. 87(3), first subpara.; Council Decision 2004/752, Art. 3(4))

1.      In the context of the time-limits for bringing actions, the concept of excusable error must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person. In such circumstances, the administration may not rely on its own failure to observe the principles of legal certainty and the protection of legitimate expectations out of which the party’s error arose.

An official who, following instructions given by the director-general responsible for personnel, appeals to the Promotion Committee instead of submitting a complaint directly to the appointing authority against the act adversely affecting him, even though that act has no connection with the conduct of the promotion exercise, and who, following the rejection of that appeal, submits a complaint out of time commits an excusable error justifying his application being out of time.

(see paras 39-41, 44)

See:

T-12/90 Bayer v Commission [1991] ECR II‑219, para. 29; T-8/95 and T-9/95 Pelle and Konrad v Council and Commission [2007] ECR II-4117, para. 93

2.      In an action concerning officials, the fact that heads of claim are not supported by any pleas or arguments of their own is not sufficient to show that they are inadmissible if it is clear from the file that, in view of their connection with other heads of claim in the action, they could consequently be admitted.

(see para. 47)

3.      In view of the different options which Article 29(1)(a) of the Staff Regulations offers the appointing authority for filling a vacant post, applications for vacant posts within an institution submitted by officials from the same institution cannot, a priori, be regarded as requests for transfer. However, an application submitted by an official for a vacant post in that institution must be regarded as a request for transfer or promotion where the vacancy notice, while excluding the possibility of appointment under Article 45a of the Staff Regulations, does not make it clear in advance whether the post is to be filled by one method or the other, and where the grading of that post also does not provide any conclusive information in that respect.

Such an application, which includes a request for transfer even if there is more to it than that, therefore falls within the scope of the Commission’s decision on detailed rules governing the promotion procedure for officials paid from research appropriations in the general budget, according to which officials who were previously members of the temporary staff paid from research appropriations do not retain the promotion points which they have acquired in the grade prior to their appointment as probationer officials if they are transferred at their own request to a post paid from the operating appropriations in the general budget in the two years following their appointment.

(see paras 53-54, 74-75, 77-79)

4.      An institution which unreasonably disputes the admissibility of an action may, even if successful, be ordered to pay some of the applicant’s costs.

(see paras 87-88)