ORDER OF THE GENERAL COURT (Appeal Chamber)

13 September 2013

Case T‑358/12 P

Rosella Conticchio

v

European Commission

(Appeal — Civil service — Officials — Pensions — Decision concerning the calculation of pension rights — Appeal in part manifestly inadmissible and in part manifestly unfounded)

Appeal:      against the order of the European Union Civil Service Tribunal (First Chamber) of 12 July 2012 in Case F‑22/11 Conticchio v Commission ECR-SC, seeking to have that order set aside.

Held:      The appeal is dismissed. Each party is to bear its own costs.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Definition — Decision establishing an official’s classification by step, reflected in his monthly salary statement — Included — Decision not communicated in writing — No effect

(Staff Regulations, Arts 25, 90(2) and 91(1))

2.      Actions brought by officials — Prior administrative complaint — Time-limits — Point from which time starts to run

(Staff Regulations, Arts 90 and 91)

3.      Appeals — Pleas in law — Plea submitted for the first time in the context of the appeal — Inadmissibility

(Rules of Procedure of the General Court, Arts 48(2), 139(2) and 144)

4.      Procedure — Decision taken by way of reasoned order — Dispute — Conditions — Obligation to challenge the Civil Service Tribunal’s assessment of those conditions

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

5.      Appeals — Pleas in law — Inadequate statement of reasons — Civil Service Tribunal’s use of implicit reasoning — Lawfulness — Conditions

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1))

1.      A prior administrative complaint and the action which follows must both be directed against an act adversely affecting the applicant within the meaning of Articles 90(2) and 91(1) of the Staff Regulations. An act adversely affecting an official is one which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position.

In that regard, the categorisation as an act adversely affecting an official of a decision establishing his classification by step, reflected in his monthly salary statement, may not be challenged on the ground that it was not communicated in writing in accordance with Article 25 of the Staff Regulations. Although Article 25 of the Staff Regulations requires that any decision relating to a specific individual must at once be communicated to him in writing, the fact remains that communication is a measure subsequent to the decision, which pre-exists it. The communication of a decision is therefore not decisive in assessing whether that decision is an act adversely affecting an official. That is also borne out by Article 90(2) of the Staff Regulations, under which an act adversely affecting an official may also consist in failure to adopt a measure, which, by its very nature, is not communicated in writing by the institution.

Furthermore, while a salary statement, by its nature and purpose, does not, as such, have the characteristics of an act adversely affecting an official, since it merely expresses in financial terms the effect of earlier legal decisions concerning the official’s situation, the fact remains that, in procedural terms, a pay slip may constitute an act producing precise legal effects in respect of the person to whom it is addressed. The sending of the monthly salary statement has the effect of starting the time for bringing a complaint and an appeal against an administrative decision running, where that statement clearly shows the decision taken and its scope. That being so, pay slips, which are sent monthly and contain a statement of an official’s pecuniary rights, may constitute acts adversely affecting that official, against which a complaint and, if necessary, an appeal may be brought.

(see paras 21-23)

See:

15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73 Kortner and Others v Council and Others [1974] ECR 177, para. 18; 204/85 Stroghili v Court of Auditors [1987] ECR 389, para. 6

T‑562/93 Obst v Commission [1995] ECR-SC I‑A‑247 and II‑737, para. 23; T‑113/95 Mancini v Commission [1996] ECR-SC I‑A‑185 and II‑543, para. 23; T‑391/94 Baiwir v Commission [1996] ECR-SC I‑A‑269 and II‑787, para. 34; T‑232/97 Becret-Danieau and Others v Parliament [1998] ECR-SC I‑A‑157 and II‑495, paras 31 and 32; T‑354/03 Reggimenti v Parliament [2005] ECR-SC I‑A‑33 and II‑147, paras 38 and 39; T‑4/05 Strack v Commission [2006] ECR-SC I‑A‑2-83 and II‑A‑2-361, para. 35

2.      See the text of the decision.

(see para. 26)

3.      See the text of the decision.

(see para. 39)

See:

C‑266/97 P VBA v VGB and Others [2000] ECR I‑2135, para. 79; C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, para. 114; 21 January 2010, C‑150/09 P Iride and Iride Energia v Commission, not published in the ECR, paras 73 and 74

4.      See the text of the decision.

(see para. 45)

See:

C‑396/03 P Killinger v Germany and Others [2005] ECR I‑4967, para. 9; C‑308/07 P Gorostiaga Atxalandabaso v Parliament [2009] ECR I‑1059, para. 36

T‑48/10 P Meister v OHIM [2010] ECR-SC, para. 29

5.      See the text of the decision.

(see para. 54)

See:

C‑422/11 P and C‑423/11 P Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission [2012] ECR, para. 48 and the case-law cited therein