JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

12 May 2010

Case F-13/09

Josefina Peláez Jimeno

v

European Parliament

(Civil service — Officials — Previous complaint — Time-limit for the complaint — Lateness — Proof — Former member of the temporary staff — Appointment as an official — Article 5(4) of Annex XIII to the Staff Regulations — Equal treatment)

Application: brought under Articles 236 EC and 152 EA, in which Ms Peláez Jimeno seeks annulment of the Parliament’s decision of 8 February 2008 recruiting her as a probationary official, in so far as that decision classifies her in grade AST 1, step 5, and of the Parliament’s decision of 12 November 2008 rejecting her complaint lodged on the basis of Article 90(2) of the Staff Regulations of Officials of the European Union.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1.      Officials — Actions — Prior administrative complaint — Time-limits — Point from which time starts to run — Burden of proof

(Staff Regulations, Art. 90(2))

2.      Officials — Recruitment — Appointment in grade — Introduction of a new career structure by Regulation No 723/2004 — Transitional provisions for classification in grade

(Staff Regulations, Art. 31(1); Annex XIII, Arts 5(2) and (4), 12(3) and 13(1); Council Regulation No 723/2004)

1.      It is for a party relying on a breach of the time-limit for lodging a complaint or bringing an action to provide evidence of the date on which that period started to run, which, if absent, cannot be substituted by a series of circumstantial factors suggesting that a letter was received by the applicant on an earlier date than the one he claims. Furthermore, in the absence of any document demonstrating receipt of the contested decision, the fact that the official concerned was present at his workplace does not provide sufficiently certain grounds for inferring, and therefore is not equivalent to evidence, that he was actually able to be apprised of that decision.

(see para. 24)

See:

T-1/90 Mérez-Mínguez Casariego v Commission [1991] ECR II‑143, para. 37; T‑14/99 Kraus v Commission [2001] ECR-SC I‑A‑7 and II‑39, para. 22; T‑254/01 Di Pietro v Court of Auditors [2002] ECR-SC I‑A‑177 and II‑929, paras 19, 22 and 25 to 27

F‑71/06 Lebedef-Caponi v Commission [2007] ECR-SC I‑A‑1‑115 and II‑A‑1‑629, paras 29, 31 and 34

2.      Article 5(4) of Annex XIII to the Staff Regulations refers to temporary servants whose names appear ‘on the list of candidates suitable for transfer from one category to another’ and those ‘on the list of successful candidates of an internal competition’. Although a competition for ‘change of category’ is also, by its very nature, an internal competition, the provision in question must be interpreted in such a way as to render it effective, avoiding, as far as possible, any interpretation which would lead to the conclusion that the provision is redundant. It appears that the legislature intended ‘internal competition’ to mean competitions for the establishment of members of the temporary staff, the purpose of which is to allow the recruitment as officials, in compliance with all the provisions of the Staff Regulations governing access to the European civil service, of staff who already have a certain experience of the institution and have demonstrated their ability to occupy the posts to be filled. That interpretation is borne out by the wording of Article 5(2) of Annex XIII to the Staff Regulations, which refers only to officials whose names appear ‘on the list of candidates suitable for transfer from one category to another’, without mentioning officials ‘on the list of successful candidates of an internal competition’. There would have been no reason for making such a reference given that there is, precisely, no reason to establish as officials staff who already are officials.

For Article 5(4) of Annex XIII to the Staff Regulations to be applicable, there must have been a transfer from a ‘former category’ to a ‘new category’ following either a competition which has led to the establishment of a ‘list of candidates suitable for transfer from one category to another’, or an internal competition for the establishment of members of the temporary staff, which has resulted in such a change of category . The legislature thus departed, in the exercise of its wide discretion as regards transitional provisions and classification criteria, from the general rule concerning the classification of newly recruited officials, set out in Article 31(1) of the Staff Regulations, as supplemented by Article 12(3) or Article 13(1) of Annex XIII in the case of officials included in a list of suitable candidates before 1 May 2006 and recruited between 1 May 2004 and 30 April 2006 and after 1 May 2006 respectively, reserving the benefit of classification in a grade other than that stated in the competition notice to staff recruited as probationary officials who already have experience of the institution and have demonstrated, in the competitions referred to above, their ability to occupy posts in a higher category.

(see paras 40, 41, 46-47)

See:

T‑40/96 and T‑55/96 de Kerros and Kohn-Bergé v Commission [1997] ECR‑SC I‑A‑47 and II‑135, paras 45 and 46; T-294/97 Carrasco Benítez v Commission [1998] ECR-SC I‑A‑601 and II‑1819, para. 51