ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

7 March 2012

Case F–31/11

BI

v

European Centre for the Development of Vocational Training

(Civil service — Time-limit for bringing proceedings — Language of rejection of complaint)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which BI seeks, first, annulment of the decision of 14 April 2010 by which the Director of the European Centre for the Development of Vocational Training (Cedefop) terminated his employment, and, second, an order that Cedefop pay compensation for the material and non-material loss which he considers he has suffered.

Held:      The action is dismissed as manifestly inadmissible. The applicant is to pay all the costs.

Summary

1.      Officials — Actions — Time-limits — Point from which time starts to run — Notification — Definition — Decision rejecting a complaint notified to an official in a language of which he has no knowledge, but which was used in that complaint — Included

(Staff Regulations, Art. 91(3))

2.      Officials — Actions — Prior administrative complaint — Time-limits — Mandatory — Claim barred by lapse of time — Excusable error — Definition

(Staff Regulations, Arts 90 and 91)

1.      Even though the Staff Regulations and the Conditions of Employment of Other Servants do not lay down rules on the use of languages by the institutions of the Union in decisions addressed to their staff, the administration is under an obligation, when it addresses an individual decision to an official or other member of staff, to draw it up, in accordance with its duty to have regard for his welfare, in a language of which he has a thorough knowledge.

In the case of a decision to reject a complaint, notification of that decision in a language which is neither the mother tongue of the official or other staff member concerned, nor the language in which the complaint was drawn up, may be regarded as lawful provided that the person in question was able to have effective knowledge of it. If, on the other hand, the addressee of that decision considers that he is unable to understand it, it is for him to ask the competent authority of the institution to provide him with a translation either in the language of the complaint or in his mother tongue. Where such a request is made with all due despatch, the time-limit starts to run only from the date on which that translation is notified to the official or other staff member concerned.

However, where an official or other staff member voluntarily chooses to submit his complaint in a given language which is not his mother tongue, that choice implies that the person concerned accepts its use by the institution in its reply.

In any event, it is accepted that an administration may choose its internal languages of communication if that choice is based on objective considerations. The use by the administration, for drawing up its decision on a complaint, of the language chosen by the complainant is based on objective considerations resulting from the choice of language made by the complainant himself. Consequently, the use by the institution concerned of the same language as that in which the complaint was made is not arbitrary in nature.

(see paras 19-22)

See:

23 March 2000, T‑197/98 Rudolph v Commission, paras 44 and 46 and the case‑law cited therein; 7 February 2001, T‑118/99 Bonaiti Brighina v Commission, paras 15 and 17

3 March 2009, F‑63/07 Patsarika v Cedefop, para. 31 and the case‑law cited therein; 29 June 2011, F‑7/07 Angioi v Commission, paras 91 and 106

2.      It is accepted by the Union judicature that failure to comply with the rules on the time-limits for complaints and appeals cannot lead to the dismissal of an application as inadmissible in cases where that failure is due to an excusable error on the part of the official or other staff member. The concept of excusable error may, however, relate only to exceptional circumstances, in particular where the conduct of the institution has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person.

An applicant’s lawyer who has himself, on behalf of his client and with his agreement, drawn up the text of the complaint in a particular language and who has subsequently received the decision rejecting the complaint drawn up in the same language, cannot be unaware, given the knowledge and diligence entitled to be expected of a professional lawyer, that since the time-limits for appeal are mandatory and not at the parties’ discretion, they start to run from the date of notification of the decision rejecting the complaint, in its original version drawn up in the language chosen by the complainant, and not from the later date on which the applicant received the translation into another language of the rejection of the complaint.

(see paras 29, 32)

See:

5 July 2011, F‑73/10 Coedo Suárez v Council, para. 40 and the case‑law cited therein