ORDER OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

15 January 2009

Case T-306/08 P

Kurt-Wolfgang Braun-Neumann

v

European Parliament

(Appeal – Civil service – Pensions – Survivor’s pension – Payment of 50% owing to the existence of another surviving spouse – Act adversely affecting an official – Complaint lodged out of time)

Appeal: against the order of the European Union Civil Service Tribunal of 23 May 2008 in Case F-79/07 Braun-Neumann v Parliament [2008] ECR-SC I-A-1-0000 and II-A-1-0000, seeking annulment of that order.

Held: The appeal is dismissed. Each party is ordered to bear its own costs incurred in the present case.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Formal requirements – None

(Staff Regulations, Arts 90 and 91)

2.      Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Arts 90 and 91)

1.      The informal nature of a measure by the administration does not preclude its characterisation as an act adversely affecting an official, which does not depend on its form or title, but is determined by its substance and in particular by whether it produces binding legal consequences liable to affect the applicant’s interests directly and immediately by significantly changing his legal situation.

(see para. 32)

See: 17/78 Deshormes v Commission [1979] ECR 189, para. 10; T‑562/93 Obst v Commission [1995] ECR-SC I‑A‑247 and II‑737, para. 23; T-144/08 Marcuccio v Commission [2008] ECR-SC I‑A‑2-0000 and II-A-2-0000, para. 25

2.      No express provision of Community law imposes on the institutions any general obligation to inform the addressees of measures of the judicial remedies available or of the time-limits for availing themselves thereof. The fact that the reply to a prior administrative complaint does not indicate the legal remedies available to the party concerned does not oblige the Community judicature to allow the admissibility of an action brought out of time, in accordance with the principles of legal certainty and proportionality.

(see para. 34-35)

See: C‑153/98 P Guérin automobiles v Commission [1999] ECR 1441, paras 13 and 15; T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, para. 210; T‑146/04 Gorostiaga Atxalandabaso v Parliament [2005] ECR II‑5989, para. 131

3.      The time-limit of three months for lodging a complaint against an act adversely affecting an official, laid down by Article 90 of the Staff Regulations, is a matter of public policy and not subject to the discretion of the parties or the Court, since it was established in order to ensure that legal positions are clear and certain and that there is legal certainty. It is therefore for the Community judicature to verify, of its own motion, whether it has been complied with. The fact that an institution has not pointed out, in its reply to an administrative complaint, that the complaint was out of time and therefore inadmissible, or that it has even expressly stated that the applicant could still bring judicial proceedings, has no bearing on the admissibility of an appeal under Article 90(2) of the Staff Regulations. Such circumstances cannot derogate from the system of mandatory time-limits established by Articles 90 and 91 of the Staff Regulations and still less exempt the Court from its obligation to verify that the time-limits laid down in the Staff Regulations have been complied with.

(see paras 36-37)

See: T‑129/89 Offermann v Parliament [1991] ECR II‑855, para. 34; T‑35/96 Rasmussen v Commission [1997] ECR-SC I‑A‑61 and II‑187, para. 30; T‑358/03 Krahl v Commission [2005] ECR-SC I‑A‑215 and II‑993, para. 35 and the case-law cited therein, and para. 36