JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 October 2010

Case F-77/08

Isabel Vicente Carbajosa and Others

v

European Commission

(Civil service — Open competitions EPSO/AD/116/08 and EPSO/AD/117/08 in the field of fraud prevention — Exclusion of candidates in consequence of their results in the admission tests — Decision of the appointing authority — Failure to lodge a complaint — Inadmissibility of the action)

Application: brought under Articles 236 EC and 152 EA, in which Ms Vicente Carbajosa and five other officials/members of the temporary staff at the Commission seek annulment of the individual decisions of the European Personnel Selection Office (EPSO) of 5 June 2008 not to admit them to the tests in open competitions EPSO/AD/116/08 and EPSO/AD/117/08 respectively.

Held: The action is dismissed as inadmissible. The applicants are to bear their own costs and to pay those incurred by the Commission. The Kingdom of Spain, intervener for the applicants, is to bear its own costs.

Summary

1.      Officials — Actions — Prior administrative complaint — Absence — Inadmissibility — Exceptions

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

2.      European Personnel Selection Office (EPSO) — Powers conferred on the appointing authority under Article 90 of the Staff Regulations

(Decision 2002/621 of the Secretaries-General of the European Parliament, the Council, the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee, the Committee of the Regions, and the Representative of the European Ombudsman, Art. 4(1))

1.      Under Article 91(2) of the Staff Regulations, an appeal before the Courts of the Union is admissible only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations against the act adversely affecting the official concerned.

Except where the action is directed against a measure not of the appointing authority itself, such as a decision of a selection board in a competition or a staff report, failure to lodge a prior complaint within the required time-limit renders the action inadmissible.

(see paras 27-28)

See:

317/85 Pomar v Commission [1987] ECR 2467, paras 11 and 13

T-133/89 Burban v Parliament [1990] ECR II‑245, para. 17; T-1/91 Della Pietra v Commission [1992] ECR II‑2145, para. 23

F-120/06 Dálnoky v Commission [2007] ECR-SC I‑A‑1‑269 and II‑A‑1‑1517, para. 35; F-106/05 T v Commission [2008] ECR-SC I‑A‑1‑419 and II‑A‑1‑2315, para. 84

2.      It follows from Article 4(1) of Decision 2002/621 on the organisation and operation of the European Personnel Selection Office (EPSO) that the Head of the Office exercises the powers conferred on the appointing authority under Article 90 of the Staff Regulations in respect of all requests or complaints relating to the tasks of the Office, which may include, pursuant to a notice of competition, the organisation of the admission tests for all candidates and the marking of those tests.

(see para. 44)