JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

Commission of the European Communities

(Appeal – Civil service – Officials – Former members of the auxiliary staff – Appointment – Classification in grade – Competition published before the entry in force of the new Staff Regulations – Reclassification by another institution of its officials – Refusal to reclassify – Principle of equal treatment – Action for annulment – Non-actionable measure – Confirmatory act – Absence of new and substantive facts – Absence of excusable error – Inadmissibility)

Appeal: against the order of the Civil Service Tribunal (Second Chamber) of 21 April 2008 in Case F-78/07 Boudova and Others v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 and seeking the annulment of that order.

Held: The appeal is dismissed. Stanislava Boudova, Iveta Adovica, Juraj Kuba, Heinrihs Puciriuss, Agnieszka Strzelecka, Izabela Szyprowska, Timea Tibai and Birute Vaituleviciene are ordered to bear their own costs and to pay those incurred by the Commission in the present proceedings.

Summary

(Staff Regulations, Arts 90 and 91)

3. Appeal – Pleas in law – Admissibility – Points of law

1.A decision which has not been challenged by its addressee within the required time-limit becomes definitive as against that person. However, the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive.

An official who has not challenged his initial classification in grade within the time-limit laid down in the Staff Regulations cannot reasonably request reclassification solely on the ground that he was unaware of the exact scope of his rights until a judgment was delivered by the Community judicature in a case in which that official was not a party and which annulled a measure which did not directly concern him.

A fortiori, an official who has not challenged the decision on his initial classification in grade within the time-limit laid down in the Staff Regulations cannot invoke, as a substantial new fact justifying a request for reconsideration of his classification, the fact that he was unaware of the exact scope of his rights until after the adoption by an institution other than his employer of a decision which did not directly concern him.

(see paras 38, 47-48)

See: 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73 Kortner and Others v Council and Others [1974] ECR 177, paras 36 to 40; 231/84 Valentini v Commission [1985] ECR 327, para. 14; 125/87 Brown v Court of Justice [1988] ECR 1619, para. 13; T‑232/97 Becret-Danieau and Others v Parliament [1998] ECR-SC I‑A‑157 and II‑495, paras 43 and 44; T‑181/97 Meyer and Others v Court of Justice [1998] ECR-SC I‑A‑151 and II‑481, paras 36 and 37; T‑186/98 Inpesca v Commission [2001] ECR II‑557, paras 40 and 47 and the case-law cited therein; T‑112/02 Van Dyck v Commission [2002] ECR-SC I‑A‑317 and II‑1527, para. 63

2.In accordance with the principle of equal treatment, where an institution decides to reconsider the initial classification in grade, which has become definitive, of a group of its officials, it must, in the absence of objective justification for any difference in treatment, reconsider, at their request, the initial classification of its other officials in an identical or comparable situation. The purpose of that obligation is to ensure compliance with the principle of equal treatment between officials within the same institution who are in an identical or comparable situation in respect of measures taken on the institution’s own initiative and not imposed on it by an obligation under the Staff Regulations.

It follows that measures adopted by an institution in the absence of a legal obligation arising from the Staff Regulations may not be relied on in support of a plea alleging infringement of the principle of equal treatment in respect of another institution.

(see paras 51-53)

See: C‑193/87 and C‑194/87 Maurissen and Union syndicale v Court of Auditors [1990] ECR I‑95, paras 26 and 27; C‑389/98 P Gevaert v Commission [2001] ECR I‑65, paras 54 to 58; T‑219/92 and T‑337/02 Lutz Herrera v Commission [2004] ECR-SC I‑A‑319 and II‑1407, para. 110

3.In the context of the time-limits for bringing actions, the concept of excusable error concerns exceptional circumstances in which, in particular, the conduct of the institution concerned was, 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. The question whether or not the conduct of the institution concerned was such as to give rise to a pardonable confusion in the mind of the other party in the dispute constitutes a point of law which may therefore be raised in an appeal.

(see paras 71, 73)

See: C‑193/01 P Pitsiorlas v Council and ECB [2003] ECR I‑4837, paras 24 to 29; T-127/07 P Bligny v Commission [2008] ECR-SC I-B-1-0000 and II-B-1-0000, paras 42 to 48