ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
5 March 2007 (*)
(Officials – Open competition – Notice of competition – Time-limits – Complaint – Inadmissibility)
In Case T‑455/04,
Derya Beyatli, residing in Nicosia (Cyprus),
Armagan Candan, residing in Istanbul (Turkey),
represented by A. Demetriades, lawyer,
applicants,
v
Commission of the European Communities, represented by J. Currall and H. Kraemer, acting as Agents,
defendant,
APPLICATION for annulment of the decision of 5 May 2004 of the chairman of the selection board for open competition EPSO/A/1/03 notifying the applicants that they had not passed the written test,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of M.E. Martins Ribeiro, acting as President, F. Dehousse and D. Šváby, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
1 Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) provides:
‘Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. The period shall start to run:
– on the date of publication of the act if it is a measure of a general nature;
– on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person; if, however, an act affecting a specified person also contains a complaint against another person, the period shall start to run in respect of that other person on the date on which he receives notification thereof but in no case later than the date of publication;
– on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request as provided for in paragraph 1.
The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.’
2 Article 4 of Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing a European Communities Personnel Selection Office (OJ 2002 L 197, p. 53) provides:
‘In accordance with Article 91a of the Staff Regulations, requests and complaints relating to the exercise of the powers conferred under Article 2(1) and (2) of this Decision shall be lodged with the [European Communities Personnel Selection Office (EPSO)]. Any appeal in these areas shall be made against the Commission.’
3 Notice of open competitions EPSO/A/1-10/03, published in the Official Journal of the European Union (OJ 2003 C 120 A, p. 13), provides, in point A II concerning eligibility, as follows:
‘…
3. Knowledge of languages
Language 1 – you must have a thorough knowledge of one of the following, depending on the competition:
– Greek (for competition EPSO/A/1/03) …
You must also have a satisfactory knowledge of at least one of the official languages of the European Union (N.B. for applicants in competition EPSO/A/1/03, this language may not be Greek) …
4. General terms and conditions
– You must be a Cypriot citizen (for competition EPSO/A/1/03) …’
4 According to point B 1 of the notice of competition, concerning the pre-selection tests and their marking:
‘Tests (a), (b) and (c) are to be held in German (DE), English (EN) or French (FR) – language 2, as chosen by each applicant and specified in their application …’
5 According to point B 2, concerning the written test and its marking:
‘(d) Test on a chosen subject, in the field chosen in your application, to test your:
– specialist knowledge,
– comprehension skills and ability to analyse and summarise, and
– ability to draft.
…
The subjects are set in the official languages of the European Union (Spanish, Danish, German, Greek, English, French, Italian, Dutch, Portuguese, Finnish and Swedish). You may answer in any one of these languages, i.e. you may choose English, French or German (language 2), as in the pre-selection tests, or any of the other official languages of the EU (language 3), as distinct from your main language (language 1).
This test will be marked out of 40 (pass mark: 20).
(e) Short note in your main language – language 1 – setting out the arguments and conclusions from test (d). This test is designed to assess your command of your main language as regards both the quality of your writing style and presentation.
– in Greek (for competition EPSO/A/1/03) …’
6 Point D 4 of the notice of competition, entitled ‘Requests for applications to be reconsidered – appeal procedures – complaints to the European Ombudsman’, provides:
‘If, at any stage of the competition, you feel that any decision prejudices your interests, you can contact EPSO, which will inform the chairman of the selection board. For appeals, please refer to the Annex.’
7 That annex provides as follows:
‘If, at any stage of the competition, you consider that your interests have been prejudiced by a particular decision, you can (i) contact EPSO, which will pass the information on to the chairman of the selection board, (ii) initiate one of the appeal procedures or (iii) make a complaint to the European Ombudsman.
– Request for application to be reconsidered:
You can submit a request for your application to be reconsidered by sending a letter in English, French or German setting out the reasons to:
European Personnel Selection Office
C-80
Attention: Chairman of Selection Board for EPSO/A/…/03
B-1049 Brussels
It must be postmarked within 20 calendar days of the date of the notification of the decision concerned. The selection board will reply as soon as possible.
– Appeal:
– You can either lodge a complaint under Article 90(2) of the [Staff Regulations], at the following address:
European Personnel Selection Office
C-80
Competition EPSO/A/.../03
B-1049 Brussels,
– or you can bring a case before:
The Court of First Instance of the European Communities
Boulevard Konrad Adenauer
L-2925 Luxembourg,
under Article 236 [EC] and Article 91 of the Staff Regulations.
The time limits for initiating these two types of procedure (see Staff Regulations published in Official Journal of the European Communities L 56 of 4 March 1968) start to run from the time you are notified of the act allegedly prejudicing your interests.
– Complaint to the European Ombudsman:
Like all citizens of the Union, you can make a complaint to:
The European Ombudsman
1 Avenue du Président Robert Schuman – BP 403
F-67001 Strasbourg Cedex,
under Article 195(1) [EC] and in accordance with the conditions laid down in the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties, published in Official Journal of the European Communities L 113 of 4 May 1994.
Note that complaints made to the Ombudsman have no suspensive effect on the period laid down in Articles 90(2) and 91 of the Staff Regulations for lodging, respectively, a complaint or an appeal with the Court of First Instance under Article 236 [EC].’
Facts and procedure
8 The applicants, of Cypriot nationality, belong to the Turkish-speaking community of Cyprus and have Turkish as their mother tongue.
9 Following the notice of open competitions (OJ 2003 C 120, p. 20) with a view to the recruitment of assistant administrators (A 8) for citizens of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, the applicants applied for competition EPSO/A/1/03 (‘the competition’).
10 The applicants were admitted to the written tests, which took place on 12 December 2003, and for written test (e) they drafted a statement declaring that they did not speak Greek.
11 By letter of 5 May 2004 of the chairman of the selection board (‘the contested decision’), the applicants were informed that they had passed tests (a), (b), (c) and (d) but had failed test (e), having received a mark of 6.5 out of 10 when the minimum mark required was 8 out of 10.
12 By letter of 7 May 2004 addressed to the head of the Commission’s Representation in Cyprus, the applicants reported their failure in the written test of the competition in the following terms:
‘Our marks indicate that we passed all tests we had taken, apart from test (e) which was the one in Greek language. We are aware that we applied indicating “Greek” as our first language; however we were told by many EU officials that “we wouldn’t fail the test due to not being able to speak Greek.” … At a time when it’s crystal clear that Turkish Cypriots are determined to reunite Cyprus and become a part of the European family as the equal partner of the United Cyprus Republic and when European Commission and the European Council are working on measures “to bring the Turkish Cypriots closer to the European Union”, we find this result very discouraging and bitter. We consider this as a discrimination against Turkish speaking EU citizens. We nevertheless remain trustful to the justice of the European Union and believe that the EU will take necessary steps to solve this problem, since it’s clearly stated in Article 21 of the Charter of Fundamental Rights of the EU that “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” …’
13 By letter of the same date, also addressed to the head of the Commission’s Representation in Cyprus, the President of the Turkish Cypriot Chamber of Commerce requested him on behalf of the applicants ‘to follow this case and help to correct the mistake made by EPSO’ and to suggest ‘ways to legally defend the rights of Ms Beyatli and Mr Candan in particular and the rights of all Turkish Cypriots in general’.
14 The applicants sent another letter to the head of the Commission’s Representation in Cyprus on 15 June 2004, reading as follows:
‘With a letter dated 7th May 2004 we had requested your help as regards to the reconsideration of a test, the written test (e) of the [competition] that we took and failed. As you will remember we, as Turkish Cypriots living in the north of Cyprus, passed all tests we had taken, apart from test (e) which was the one in Greek language.
We very much regret that we haven’t received an answer from EPSO concerning the issue, although it has been more than a month. We would like to obtain an urgent official answer from the European Union to be able to proceed with the matter.
We would like to once more emphasise that we consider this as a discrimination against Turkish speaking EU citizens and are determined to pursue our rights in every way possible …’
15 By letter of 23 August 2004 the head of the Commission’s Representation in Cyprus replied to the applicants in the following terms:
‘The issue of Turkish Cypriot candidates in the ongoing EPSO competitions is indeed one of great concern to us, for obvious reasons. I can confirm that there were a small number of Turkish Cypriot candidates that were successful in the pre-selection as well as the main written test, while not receiving pass mark in the test which the Cypriots were obliged to do in Greek. I do however believe there has been misunderstanding as to the possibility of the selection boards to take the political situation into account. The procedures of a competition are governed by the Notice of Competition, which constitutes its legal basis, and which leaves no room for political considerations. Furthermore, the Selection Board is bound by the absolute requirement to respect equal treatment of all candidates. If a candidate wishes to request a review or make an appeal, information on procedural rules can be found in the relevant Notice of Competition …’
16 By application lodged at the Registry of the Court of First Instance on 18 November 2004, the applicants brought the present action.
17 By letter dated 18 November 2004, received by EPSO on 22 November 2004, the applicants also lodged a complaint with EPSO under Article 90(2) of the Staff Regulations.
18 By letters of 15 April 2005 addressed to the head of the Commission’s Representation in Cyprus, one of the applicants and the President of the Turkish Cypriot Chamber of Commerce each observed:
‘In its defence to the Court, the Commission denied the receipt of our letters to you and that you would have submitted our letters to your authorities to further draw the complaint to their attention in time. It’s my understanding that the Representation of the European Commission in Cyprus is the body to represent the Commission here and is supposed to refer any complaint to authorised bodies. … I would like to ask you [to] confirm the receipt of two letters dated 7th May 2004 [and to] confirm that you forwarded our complaint to the authorised bodies …’
19 By letters of 21 April 2005, the head of the Commission’s Representation in Cyprus replied separately to the applicant in question and the President of the Turkish Cypriot Chamber of Commerce, in the following terms:
‘[I]n fact the Commission never claimed in its Defence that the letter of 7 May 2004 had not reached it. Point 22 of the Defence actually refers to that letter and it is not suggested that I had not received it. It is also clear from the Defence that relevant persons in Brussels received your correspondence …’
20 Pursuant to Article 64 of the Rules of Procedure, the Court requested the Commission on 3 February 2006 to reply to a written question, which it did by letter of 15 February 2006.
21 The Court asked the Commission to specify whether the applicants’ letters of 7 May and 15 June 2004 had in fact been received by EPSO and, if so, to state the date on which they were received and the decision, if any, which was taken with regard to them.
22 In reply, the Commission stated that the letters of 7 May and 15 June 2004 had been addressed not to EPSO but to the Commission’s Representation in Cyprus and that EPSO had not received the letters until 22 November 2004, as annexes to the complaint made by the applicants. It produced EPSO’s decision dated 21 March 2005 expressly rejecting the complaint, in which EPSO took the view that the applicants’ complaint was inadmissible and in any event unfounded.
Forms of order sought by the parties
23 The applicants claim that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
24 The Commission contends that the Court should:
– dismiss the application;
– make an appropriate order as to costs.
Law
25 Under Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action, and the conditions of admissibility of an application concern such a bar. Under Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides otherwise. In the present case, the Court considers that it has sufficient information from the documents produced and explanations provided by the parties during the written procedure, so that there is no need to open the oral procedure.
Arguments of the parties
26 The Commission submits, without raising a formal plea of inadmissibility in accordance with Article 114(1) of the Rules of Procedure, that the application is inadmissible as out of time.
27 First, referring to the case-law (Joined Cases T‑219/02 and T‑337/02 Lutz Herrera v Commission [2004] ECR‑SC I‑A‑319 and II‑1407, paragraphs 38 to 50) according to which actions against decisions of selection boards for competitions are admissible, the Commission notes that the time-limit for challenging the notice of competition has expired.
28 Second, it submits that the applicants’ claim for annulment of the contested decision is also inadmissible, in that their complaint to EPSO and their application to the Court are out of time. In its view, the applicants’ letters of 7 May and 15 June 2004, which do not contain any reference to Article 90 of the Staff Regulations, constitute a political action, as they were addressed to the head of the Commission’s Representation in Cyprus, who is not mentioned in the notice of competition, rather than to EPSO. Those letters cannot therefore be regarded as a complaint within the meaning of Article 90(2) of the Staff Regulations. The Commission submits that it is also not possible to regard as a complaint the letter of the President of the Turkish Cypriot Chamber of Commerce of 7 May 2004.
29 The Commission observes that the applicants are well aware of the difference between an ordinary letter and a formal complaint under Article 90(2) of the Staff Regulations, since, by letter of 18 November 2004, they brought a formal complaint against the contested decision. That complaint was out of time, however.
30 Third, as regards the letter of the head of the Commission’s Representation in Cyprus of 23 August 2004, the Commission points out that that letter came from the head of the Commission’s Representation in Cyprus, contained a mere reference to the notice of competition, and added nothing to the contested decision. In particular, it did not state that the contested decision contained the result of a reconsideration by the selection board. The letter was thus a mere confirmation of the contested decision and cannot be treated as the rejection of a complaint.
31 Finally, as to the alleged assurances that the applicants are said to have received from EPSO and officials of the Commission that they could not fail the competition by not having a command of the Greek language, the Commission submits, in its account of the facts, that the applicants have produced no evidence of this, and that mere statements unrelated to the competition in question cannot call into question the language conditions laid down in the notice of competition.
32 The applicants observe that up to the letter of 23 August 2004 from the head of the Commission’s Delegation in Cyprus in reply to their letters of 7 May and 15 June 2004 they had received oral guarantees from officials of EPSO and assurances from officials of the Commission’s Representation in Cyprus and the Directorate-General for Enlargement that the question of the language of test (e) would be settled taking into consideration the position of Turkish-speaking Cypriots. They also submit that the changes made by EPSO on its website after the organisation of the competition, indicating that Cypriots whose main language is not Greek are able to choose two languages from the 15 old official languages, confirm the oral assurances received from EPSO.
33 The applicants further claim that the letter of 23 August 2004 from the head of the Commission’s Representation in Cyprus constitutes a decision rejecting their complaint of 7 May 2004 as supplemented by their letter of 15 June 2004.
34 The applicants submit that they lodged a complaint by their letter of 7 May 2004 addressed to the head of the Commission’s Representation in Cyprus. They also consider that it follows from their reminder to the head of the Commission’s Representation in Cyprus of 15 June 2004 that they had asked for a reconsideration of their tests and an official response from the European Union.
35 Although those letters were addressed to the head of the Commission’s Representation in Cyprus, the applicants submit that they were meant for EPSO, which actually received them and acted on that basis, given that the letters of the head of the Commission’s Representation in Cyprus of 21 April 2005 to one of the applicants and the President of the Turkish Cypriot Chamber of Commerce in reply to their letters of 15 April 2005 state that ‘relevant persons in Brussels received the Applicants’ correspondence’. In their opinion, it was for the Commission’s Representation in Cyprus to forward the correspondence to the competent departments.
36 Furthermore, the applicants observe that their letter of 7 May 2004 and the letter sent on the same date by the President of the Turkish Cypriot Chamber of Commerce show that the applicants complained about the language conditions that discriminated against Turkish-speaking Cypriots. In the light of the case-law on the classification of a document as a complaint (Case 167/86 Rousseau v Court of Auditors [1988] ECR 2705, paragraph 8, and Case C‑154/99 P Politi v European Training Foundation [2000] ECR I‑5019, paragraph 17), they submit that it is necessary to look at the content of the document rather than its title. The letter of 7 May 2004 is therefore a complaint within the meaning of Article 90(2) of the Staff Regulations.
Findings of the Court
37 It is settled case-law that the time-limits for lodging complaints and bringing proceedings prescribed by Articles 90 and 91 of the Staff Regulations are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain (Case 232/85 Becker v Commission [1986] ECR 3401, paragraph 8; Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21; and Case T‑113/95 Mancini v Commission [1996] ECR‑SC I‑A‑185 and II‑543, paragraph 20).
38 It also follows from the case-law that the legal remedy available in respect of a decision of a selection board normally consists in a direct application to the Community judicature. A complaint against such a decision would appear to serve no purpose, as the institution concerned has no power to annul or amend decisions taken by a selection board. It must therefore be determined whether the action was indeed brought within the period of three months laid down by the Staff Regulations (Case T‑133/89 Burban v Parliament [1990] ECR II‑245, paragraphs 17 and 18; Case T‑386/00 Gonçalves v Parliament [2002] ECR‑SC I‑A‑13 and II‑55, paragraph 34; and order of 25 November 2005 in Case T‑41/04 Pérez-Díaz v Commission, not published in the ECR, paragraph 31).
39 It should be recalled, however, that if the applicant chooses to approach the administration first by means of an administrative complaint, whether the judicial proceedings subsequently brought are admissible depends on whether all the procedural requirements attached to the prior complaint have been complied with (Case T‑215/97 Jouhki v Commission [1998] ECR‑SC I‑A‑503 and II‑1513, paragraph 22, and order in Pérez-Díaz, cited in paragraph 38 above, paragraph 32).
40 In the present case, the applicants seek annulment of the contested decision dated 5 May 2004, which – as is common ground – they were notified of by 7 May 2004 at the latest.
41 They lodged a complaint against the contested decision by letter of 18 November 2004, which reached EPSO on 22 November 2004, but in view of the date on which the contested decision was notified that complaint did not reach EPSO within the three-month period laid down in Article 90(2) of the Staff Regulations. Moreover, in EPSO’s express decision of 21 March 2005 rejecting the complaint, the complaint was rejected as inadmissible for that reason.
42 However, the applicants claim that their application is admissible, on the ground that they brought it within the time-limit against the letter of the head of the representation in Cyprus of 23 August 2004, which they consider to be a decision rejecting their complaint. They submit in this respect, in the reply, that the letters of 7 May and 15 June 2004, both addressed to the head of the Commission’s Representation in Cyprus, must be regarded respectively as a complaint within the meaning of Article 90(2) of the Staff Regulations and a supplement to the original complaint.
43 It must therefore be examined whether the letters of 7 May and 15 June 2004 from the applicants to the head of the Commission’s Representation in Cyprus can be classified as a complaint within the meaning of Article 90(2) of the Staff Regulations.
44 According to the case-law, an act by which an official or servant specifically challenges an administrative measure which adversely affects him constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations. In this respect priority must be given to the content of the document rather than its form or title (Rousseau v Court of Auditors, cited in paragraph 36 above, paragraph 8, and Politi v European Training Foundation, cited in paragraph 36 above, paragraph 17).
45 It must be pointed out here that the lodging of a complaint under Article 90(2) of the Staff Regulations starts a period of four months within which the administration has to take a position, expressly or impliedly, on the complaint. It is therefore essential that it is able to determine according to objective criteria the event which starts that period (see, to that effect, Politi v European Training Foundation, cited in paragraph 36 above, paragraph 16). For that reason a complaint under Article 90(2) of the Staff Regulations must be sufficiently precise for the administration to be able to realise that such a complaint has been made to it.
46 As regards the content of the letters of 7 May and 15 June 2004, it is apparent, first, that it was only in the reply that the applicants described their letter of 7 May 2004 as a complaint supplemented by their letter of 15 June 2004. Next, it should be noted that, in the letter of 7 May 2004 addressed to the head of the Commission’s Representation in Cyprus, the applicants protest against the alleged ‘discrimination against Turkish speaking EU citizens’ at a time ‘when it’s crystal clear that Turkish Cypriots are determined to reunite Cyprus and become a part of the European family as the equal partner of the United Cyprus Republic and when European Commission and the European Council are working on measures “to bring the Turkish Cypriots closer to the European Union”’. The letter does not formulate any specific request relating to the contested decision, but expresses the applicants’ belief that ‘the EU will take necessary steps to solve this problem’.
47 In their letter of 15 June 2004 the applicants refer to the letter of 7 May 2004, state that they regret not having received a reply from EPSO to that letter, and request an ‘official answer from the European Union to be able to proceed with the matter’. The letter of 15 June 2004 thus constitutes a mere reminder following up the letter of 7 May 2004.
48 Those two letters, drafted in general terms, appear as political initiatives on the part of the applicants for the European Union to take the necessary measures to put an end to the problem of alleged ‘discrimination against Turkish speaking EU citizens’.
49 The political nature of the applicants’ action is further borne out by the fact that they sent their letters of 7 May and 15 June 2004 to the head of the Commission’s Delegation in Cyprus only, and not to EPSO.
50 It should be observed here, first, that the notice of competition shows that the competition was organised by EPSO with a view to drawing up ‘reserve lists from which to fill vacant posts in the institutions of the European Union (European Parliament, Council of the European Union, Commission of the European Communities, Court of Justice of the European Communities, … Court of Auditors [of the European Communities], European Economic and Social Committee, Committee of the Regions [of the European Union] and the European Ombudsman’. In accordance with Article 4 of Decision 2002/620, complaints relating to the interinstitutional competitions organised by EPSO are to be lodged with EPSO.
51 Next, it should be noted, first, that the contested decision contained an express reference to Official Journal C 120 A of 22 May 2003 in which the notice of competition was published and, second, that the notice of competition expressly provided for the following two options, with respect to the remedies available against decisions of a selection board of a competition: either the lodging of a complaint under Article 90(2) of the Staff Regulations, to be addressed to EPSO, or the bringing of a case before the Court of First Instance under Article 236 EC and Article 91 of the Staff Regulations. The notice of competition also noted the possibility of submitting a request for reconsideration to be addressed to the chairman of the selection board or making a complaint to the European Ombudsman.
52 In view of the fact that the competition was organised by EPSO, not the Commission, and was of an interinstitutional nature, only an official of EPSO could be capable of playing a part in the administrative procedure provided for in Articles 90 and 91 of the Staff Regulations. It is clear that the notice of competition does not give the head of the Commission’s Representation in Cyprus any part in considering remedies or requests for reconsideration. He therefore manifestly had no jurisdiction to review the contested decision.
53 Moreover, the fact that the applicants addressed their letters of 7 May and 15 June 2004 only to the head of the Commission’s Representation in Cyprus despite their knowledge of the remedies, mentioned in paragraph 51 above, available against a decision of a selection board confirms that they consciously opted at a first stage to take a political step with a view to obtaining a general solution to the problem of alleged ‘discrimination against Turkish speaking EU citizens’. At a second stage, when their political action proved unsuccessful, they brought a complaint under Article 90(2) of the Staff Regulations before EPSO by letter of 18 November 2004.
54 Consequently, the letters of 7 May and 15 June 2004 cannot be classified as a complaint within the meaning of Article 90(2) of the Staff Regulations. It follows that the letter of the head of the Commission’s Representation in Cyprus of 23 August 2004, which was a reply to the applicants’ letter of 15 June 2004, also cannot be classified as a decision rejecting a complaint.
55 Moreover, the content of the letter of 23 August 2004 prevents it from being classified as a decision rejecting the complaint, since in that letter the head of the Commission’s Representation in Cyprus essentially confines himself to referring to the conditions of the notice of competition and to the remedies available to candidates that are mentioned in that notice.
56 Finally, the fact that the letter of 23 August 2004 was written by the head of the Commission’s Representation in Cyprus also prevents its being classified as a decision rejecting the complaint. For competitions organised by EPSO, decisions rejecting complaints are taken by EPSO, pursuant to Article 4 of Decision 2002/620.
57 As regards the applicants’ argument that the letters of 7 May and 15 June 2004 were actually transmitted to EPSO, in that it appears from the letters of the head of the Commission’s Representation in Cyprus of 21 April 2005 that the competent persons in Brussels had indeed received them, it must be observed that the letters of 21 April 2005, first, refer only to the letter of 7 May 2004 and, second, do not confirm that the head of the Commission’s Representation in Cyprus had forwarded that letter to EPSO. The letters of 21 April 2005 confirm only that ‘[i]t is also clear from the Defence that relevant persons in Brussels’ received the letter of 7 May 2004.
58 Even if the head of the Commission’s Representation in Cyprus did transmit the letters of 7 May and 15 June 2004 to EPSO, that would be of no relevance for the classification of those documents, which depends on their content rather than on their possible transmission by their addressee to other persons or bodies. As follows from paragraphs 46 to 53 above, the content of the letters of 7 May and 15 June 2004 does not allow them to be classified as a complaint under Article 90(2) of the Staff Regulations.
59 Finally, as the Commission submits, the letter from the President of the Turkish Cypriot Chamber of Commerce to the head of the Commission’s Representation in Cyprus dated 7 May 2004 also cannot be classified as a complaint within the meaning of Article 90(2) of the Staff Regulations lodged by the applicants against the contested decision, since it is written by a third party on behalf of the Turkish Cypriot Chamber of Commerce, which felt concerned by the general problem of alleged discrimination against Turkish-speaking Cypriots.
60 It follows from all the foregoing that it was only by letter of 18 November 2004, which reached EPSO on 22 November 2004, that the applicants lodged a complaint within the meaning of Article 90(2) of the Staff Regulations against the contested decision.
61 Consequently, since no complaint was lodged within the period prescribed by Article 90(2) of the Staff Regulations and since the present action was brought on 18 November 2004, more than three months from notification of the contested decision, the present action must be considered to be out of time.
62 It follows from all the above considerations that the application must be dismissed as inadmissible.
Costs
63 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. However, in proceedings between the Communities and their servants the institutions are to bear their own costs. The parties must therefore bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
orders:
1. The action is dismissed as inadmissible.
2. The parties shall bear their own costs.
Luxembourg, 5 March 2007.
E. Coulon | | M.E. Martins Ribeiro |
Registrar | | acting as President |