ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 December 2013

Joined Cases F‑137/12, F‑138/12, F‑139/12 and F‑141/12

Fabrice Van Oost and Others

v

European Commission

(Civil service — Officials — Promotion — Certification procedure 2010-2011 — Exclusion from the list of certified officials — Amicable settlement on the initiative of the Tribunal — Time-limit for lodging a complaint — Complaint out of time — Concept of excusable error — Diligence required of a normally well-informed official — Information obtained by telephone — Proof — Inadmissibility)

Applications:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which, on 14 November 2012, Mr Van Oost, Ms Ibarra de Diego and Mr Theodoridis, and on 16 November 2012, Ms Hotz, seek, in essence, annulment of the decisions of the deliberation committee for the 2010-2011 certification procedure not to include them in the list of persons who passed all the tests at the end of the training programme which was part of the certification procedure held in 2010-2011, and compensation for the damage allegedly suffered.

Held:      Cases F‑137/12, F‑138/12 and F‑139/12 are removed from the Register of the Tribunal. The parties in Cases F‑137/12, F‑138/12 and F‑139/12 are to bear their own costs in accordance with their agreement. The action in Case F‑141/12 is dismissed as inadmissible. Ms Hotz is to bear her own costs and to pay those incurred by the European Commission in Case F‑141/12.

Summary

Actions brought by officials — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Excusable error — Concept — Incorrect information may have been given by the administration by telephone — No effect

(Staff Regulations, Arts 90(2) and 91(2); Decision 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 2002/620, Art. 4)

The concept of excusable error must be strictly construed and can cover only exceptional circumstances in which, in particular, the institutions have adopted conduct which has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of an official or other staff member acting in good faith and exercising all necessary diligence. That concept applies by analogy with Article 91(2) of the Staff Regulations of Officials of the European Union in relation to the mandatory time-limits for the submission of an act or document to the administration itself, including a complaint within the meaning of Article 90(2) of the Staff Regulations.

An official is not entitled, in order to establish the existence of an excusable error, to rely on a telephone conversation with the administration during which he was given incorrect information regarding the appointing authority to which he sent a complaint against a decision of the European Personnel Selection Office. Since the interpretation of the relevant provisions of Decision 2002/620 establishing EPSO do not present any specific difficulties, it was for the person concerned to display all the diligence required of a normally well-informed official and therefore to obtain correct information regarding the identity of the competent authority for the purpose of investigating complaints.

(see paras 25-28, 30)

See:

1 November 2008, T‑390/07 Speiser v Parliament, para. 33; 16 September 2009, T‑271/08 P Boudova and Others v Commission, para. 72 and the case‑law cited

1 April 2011, T‑468/10 Doherty v Commission, para. 29

10 May 2011, F‑59/10 Barthel and Others v Court of Justice, para. 28