JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

8 July 2010

Case T-368/09 P

Roberto Sevenier

v

European Commission

(Appeal — Civil service — Officials — Resignation — Commission’s refusal to accept the withdrawal of the resignation and refer the matter to the invalidity committee — Time-limit for complaint — Lateness — No excusable error)

Appeal: against the order of 8 July 2009 of the European Union Civil Service Tribunal (Third Chamber) in Case F-62/08 Sevenier v Commission [2009] ECR-SC I-A-1-249 and II-A-1-1351 to have that order set aside.

Held: The appeal is dismissed. Mr Roberto Sevenier is to bear his own costs and to pay those incurred by the European Commission on the appeal.

Summary

1.      Officials — Actions — Prior administrative complaint — Implied decision rejecting a requested not challenged in good time

(Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Excusable error — Definition

(Staff Regulations, Arts 90 and 91)

3.      Appeals — Pleas in law — Plea based on distortion of the evidence

1.      A decision expressly rejecting a request which follows the implied rejection of the same request is in the nature of a purely confirmatory measure and therefore does not open, for the official concerned, a new period for lodging a complaint, since the second indent of Article 91(3) of the Staff Regulations, which provides that ‘where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh’, does not apply by analogy to the stage when the request has been submitted and before the complaint is lodged.

(see para. 20)

See: T‑200/99 Martinelli v Commission [2000] ECR-SC I‑A‑253 and II‑1161, para. 11 and the case-law cited therein

2.      Under Article 91(2) of the Staff Regulations, an appeal before the Union judicature 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 within the period provided for in that article. The time-limits laid down in Articles 90 and 91 of the Staff Regulations for the pre-litigation procedure are mandatory and cannot be left to the discretion of the parties or the court, since they were established in order to ensure that legal relationships are clear and certain. An action brought out of time must be dismissed as inadmissible, unless the applicant can rely, in particular, on an excusable error. Such an error is capable of justifying the late submission of a complaint.

The concept of excusable error concerns exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person. In such circumstances, the administration may not rely on its own failure to observe the principles of legal certainty and the protection of legitimate expectations out of which the party’s error arose.

(see paras 42, 43, 46, 57)

See: Martinelli v Commission, para. 10 and the case-law cited therein; T‑208/00 Barleycorn Mongolue and Boixader Rivas v Parliament and Council [2001] ECR-SC I‑A‑103 and II‑479, para. 29; T-271/08 P Boudova and Others v Commission [2009] ECR-SC I-B-1-71 and II-B-1-441, paras 71 and 72, and the case-law cited therein

3.      Where the applicant claims that the court of first instance has distorted the meaning of the evidence, it must indicate precisely which evidence has been distorted and show the errors of analysis which, in its assessment, led the court of first instance to make that distortion.

(see para. 53)

See: C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portlandand Others v Commission [2004] ECR I‑123, para. 50; judgment of 25 October 2007 in C-167/06 P Komninou and Others v Commission, not published in the ECR, para. 41