JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

11 November 2008

Case T-390/07 P

Michael Alexander Speiser

v

European Parliament

(Appeal – Civil service – Temporary staff – Admissibility – Expatriation allowance – Purely confirmatory decision – Complaint made out of time)

Appeal: against the order of the Civil Service Tribunal of the European Union (First Chamber) of 10 September 2007 in Case F-146/06 Speiser v Parliament [2007] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have that order set aside.

Held: The appeal is dismissed. Each party is ordered to bear the costs incurred in the appeal proceedings.

Summary

1.      Appeal – Pleas in law – Plea based on the failure to apply, in the judgment appealed against, the course of action decided in another judgment

(Art. 225a EC; Statute of the Court of Justice, Annex I, Art. 11(1))

2.      Acts of the institutions – General obligation to inform the addressees of measures of the judicial remedies available and of the time-limits – None

3.      Officials – Actions – Prior administrative complaint – Time-limits – Claim barred by lapse of time – Excusable error

(Staff Regulations, Arts 90 and 91)

4.      Officials – Actions – Prior administrative complaint – Time-limits – Claim barred by lapse of time – Reopening – Condition – New fact

(Staff Regulations, Arts 90 and 91)

5.      Procedure – Costs – Application for an appropriate order to be made

(Rules of Procedure of the Court of First Instance, Art. 87(2), first para.)

1.      Even if the failure to apply, in the judgment appealed against, the course of action decided by the Community judicature in another judgment does not, as such, constitute an infringement of Community law that might be declared unlawful in the context of an appeal, such a plea is, however, admissible provided that it is based on the infringement of a principle recognised in that judgment.

(see para. 19)

See: F-101/05 Grünheid v Commission [2006] ECR-SC I‑A‑1‑55 and II‑A‑1‑199

2.      The Community institutions are not subject to any general obligation to inform the persons to whom their measures are addressed of the judicial remedies available or to any obligation to state the time-limits applicable to them.

(see para. 32)

See: C‑163/07 P Diy‑Mar Insaat Sanayi ve Ticaret and Akar v Commission [2007] ECR I‑10125, para. 41 and the case-law cited therein

3.      As regards the time-limits for appeals, the concept of excusable error must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institutions concerned had 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. That is not true of a letter from the administration which, although mentioning the possibility for the person concerned to lodge a complaint, does not state to which measure that complaint must refer.

(see paras 33-34)

See: T‑8/95 and T‑9/95 Pelle and Konrad v Council and Commission [2007] ECR I‑4117, para. 93 and the case-law cited therein

4.      A decision by which the administration agrees, at the request of the person concerned, to change his place of origin and fix it in a town other than that stated as his place of recruitment has no bearing on the question whether or not he is entitled to an expatriation allowance and, therefore, is not capable of reopening the time-limit for complaint against an earlier decision refusing him that allowance. The fixing of the official’s place of origin and the granting of an expatriation allowance meet different needs and are subject to different criteria. Thus, whereas the granting of an expatriation allowance is conditional on an official’s not having habitually resided or carried on his main occupation within the European territory of the State where he is employed during the reference period, the expression ‘place of origin’ referred to in the first subparagraph of Article 7(3) of Annex VII to the Staff Regulations is a technical term used to determine an official’s pecuniary rights so as to avoid confusion between his place of origin and the place where he was permanently resident and previously employed prior to his recruitment.

(see paras 37-42)

See: 144/84 De Angelis v Commission [1985] ECR 1301, para. 13; T‑90/92 Magdalena Fernández v Commission [1993] ECR II‑971, paras 26 and 30 and the case-law cited therein

5.      Under the first subparagraph of Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. An application in the successful party’s pleadings for the court to make an appropriate order as to costs cannot be regarded as an application for the unsuccessful party to be ordered to pay the costs.

(see para. 48)

See: C-30/91 P Lestelle v Commission [1992] ECR I‑3755, para. 38