JUDGMENT OF 12. 7. 1984 — CASE 227/83 MOUSSIS v COMMISSION

In Case 227/83

THE COURT (Second Chamber) composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: C. O. Lenz Registrar: D. Louterman, Administrator

gives the following

JUDGMENT

Facts and Issues

I — The facts

II — Written procedure and conclusions of the parties

III — Submissions and arguments of the parties during the written procedure

A — Admissibility

B — Substance

Submission based on the infringement of Articles 29, 30, 31 and 32 of the Staff Regulations

Submission based on the infringement of the Commission decision of 6 June 1973

Submission based on the infringement of Articles 45 and 46 of the Staff Regulations

Submission based on infringement of the principle of nondiscrimination

Submissions based on the infringement of the principle that the most favourable provision should be applied

IV — Oral procedure

Decision

Costs

I —. The facts

II —. Written procedure and conclusions of the parties

III —. Submissions and arguments of the parties during the written procedure

A —. Admissibility

(a). By virtue of Article 91 (2) of the Staff Regulations an action for annulment is admissible only if the appointing authority has previously received a complaint under Article 90 (2) against the act adversely affecting the complainant. The complaint must be lodged within three months from the date on which the contested decision was not notified to the complainant or the date on which he received such notification. In the present case, however, the act adversely affecting the applicant is the appointing decision of 8 June 1982 which was notified to her on 18 June 1982. She did not submit a complaint against that decision within the period prescribed in the Staff Regulations.

(b). The applicant cannot rely on the fact that the Commission did not point out that the complaint was out of time either in its decision of 20 January 1983 refusing the request or in its decision of 14 July 1983 rejecting the complaint. As a matter of law, the Administration is not obliged under Article 90 of the Staff Regulations to reject a complaint as inadmissible. From a practical point of view, it considers that, in order to maintain good relations with its staff, it must give a reasoned reply to all complaints, even those submitted out of time.

(a). The Commission's practice is initially to consider any complaints of its officials in a non-contentious context. Relying on that practice, the applicant was perfectly within her rights to initiate the procedure by submitting a request — which Article 90 (1) of the Staff Regulations does not make subject to any time-limit — for an adjustment of her grade.

(b). The Commission did not raise the objection of inadmissibility either in its decision refusing the request or in its decision rejecting the complaint. It thereby ratified the procedure followed by the applicant and accepted the internal dispute procedure which moreover it advocated itself.

(c). Since grounds of inadmissibility can be raised by the Court of its own motion, it must be stated that in the present case the requirements regarding the admissibility of an appeal by an official are satisfied under Articles 90 and 91 of the Staff Regulations. The applicant's interest in requesting a revision of her grading cannot be contested. All the time-limits, in particular the three-month limit following the date of notification of the rejection of the complaint provided for in Article 91 (3), were observed. The complaint procedure had been exhausted as a first step. The act adversely affecting the applicant, against which she is now appealing, is the Commission's decision of 8 June 1982, grading her in Grade A 5, Step 3, and upheld by the decision of 14 July 1983 rejecting her complaint. That point is not at issue.

B —. Substance

IV —. Oral procedure

1. By an application lodged at the Court Registry on 6 October 1983, Sophie Moussis, an official in Grade A 5 at the Commission of the European Communities, serving as a Principal Administrator in the Directorate General for Agriculture, brought an action for the annulment of the Commission's decision of 14 July 1983 refusing to classify her in Grade A 4.

2. It appears from the documents before the Court that from 1968 the applicant worked for the Commission as an expert and that she was engaged as a temporary servant in Grade A 7 by a decision of 15 November 1971. On 1 May 1973, after completing her probationary period in Grade A 7, she was appointed as an established official in that grade. On 1 January 1975 she was promoted to Grade A 6. In 1981 she passed Open Competition No COM/A/337, held to recruit officials to posts in Career Bracket A 5/A 4, and, by a decision of 8 June 1982, she obtained an appointment as a Principal Administrator in Grade A 5.

3. The 1982 decision has not been contested by Mrs Moussis. However, on 11 January 1983, she submitted a request to the Grading Committee, seeking reclassification in Grade A 4 pursuant to Article 3 of the Decision of 6 June 1973 entitled Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment.

4. By a memorandum dated 20 January 1983 the Head of the Careers Division of the Directorate General for Personnel and Administration informed the applicant that the decision of 6 June 1983 was intended to govern the grading possibilities upon recruitment created by Articles 31 and 32 of the Staff Regulations and drew her attention to the fact that, since she was an established official before her appointment, her classification in her new grade had been calculated on the basis of Article 46 of the Staff Regulations, dealing with promotions. It was also pointed out in the same memorandum that the applicant had immediately been appointed as an official in Grade A 5 without being required to serve a probationary period.

5. On 25 March 1983 Mrs Moussis submitted a complaint under Article 90 of the Staff Regulations. She contended that, since she had passed an external competition, her appointment was to be regarded as recruitment. On that basis, she was entitled to be treated in accordance with the provisions of the decision of 6 June 1973, Article 3 of which allowed the appointing authority to take account of her previous professional experience. Since she was able to produce evidence of more than twelve years' relevant professional experience, including one year, nine months and seven days of work in her country of origin and ten years, seven months and sixteen days of work, in the service of the Directorate General for Agriculture, she was entitled to be appointed to Grade A 4 immediately.

6. That complaint was rejected by a Commission decision of 14 July 1983. In that decision the Commission once again made it clear that the applicant had been appointed under Article 46 of the Staff Regulations and that her appointment could not therefore be regarded as recruitment within the meaning of the decision of 6 June 1973.

7. The applicant asks the Court to :

8. The Commission objects in the first place to the admissibility of the application. It states that the act adversely affecting the applicant is the appointing decision of 8 June 1982 which was not contested within the prescribed period. The Commission's decision on a complaint submitted out of time does not cause time to start running again. The Commission's policy on this matter is to consider officials' complaints, even if submitted out of time, and to give a reasoned reply to them in order to maintain good relations with its staff. However, such a reply does not constitute a decision against which an appeal can be brought.

9. In answer to that objection of inadmissibility the applicant contends that she exercised the right granted to all officials by Article 90 (1) of the Staff Regulations which provides that any person to whom the Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. In her case the request was for the adjustment of the grade into which she had been placed by the appointing decision of 8 June 1982, adopted at the end of Open Competition No COM/A/337. The applicant states that her action is directed against the Commission's rejection of that request, given that it confirmed the decision of 8 June 1982 classifying her in Grade A 5.

10. The applicant criticizes the Commission for having raised the issue of admissibility for the first time in its defence and for not having pointed, during the administrative procedure, to any procedural irregularity on her part.

11. The act adversely affecting the applicant in this case for the purposes of Article 91 (1) of the Staff Regulations, which defines the jurisdiction of the Court in appeals by officials, is the Commission's decision of 8 June 1982 appointing her to Grade A 5. It is not disputed that that decision was not contested within the prescribed period.

12. It thus appears that the request which the applicant addressed to the Grading Committee on 11 January 1983 had no other purpose than to call in question an administrative decision which was no longer open to challenge after the expiry of the period for appealing against it. There can be no question of an official's being able, by so exercising the right conferred on him by Article 90 (1) of the Staff Regulations, to undermine the time-limits prescribed in Articles 90 and 91 for the lodging of complaints and appeals. Those time-limits are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were laid down with a view to ensuring clarity and legal certainty (see the judgments of 12. 12. 1967 in Case 4/67, Muller (née Collignon) v Commission, [1967] JECR 365, of 7. 7. 1971 in Case 79/70, Müllers v Economic and Social Committee, [1971] ECR 689, of 5. 6. 1980 in Case 108/79, Belfiorev Commission, [1980] ECR 1769 and of 19. 2. 1981 in Joined Cases 122 and 123/79, Schiavov Council, [1981] ECR 473).

13. The fact that the Commission, for reasons related to its staff policy, deals with the substance of a request, even though it is inadmissible, cannot have the effect of derogating from the system of mandatory time-limits laid down in Articles 90 and 91 of the Staff Regulations and re-establishing a right of action which is definitively time-barred.

14. Consequently, the application must be dismissed as inadmissible.

15. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of those rules, institutions are to bear their own costs in proceedings commenced by officials, without prejudice to the second subparagraph of Article 69 (3) regarding costs which the Court considers to have been unreasonably or vexatiously caused.

16. The Court considers that Article 70 should not be applied in the applicant's case. It is clear from the foregoing that, in lodging a request which was manifestly inadmissible having regard to the system of complaints and appeals governed by Articles 90 and 91 of the Staff Regulations, she caused litigation to ensue which was futile and constituted a burden for the Commission's administration.

17. The applicant must therefore be ordered to pay the whole of the costs of these proceedings.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders the applicant to pay the costs.