(Appeal – Civil service – Temporary staff – Time-limit for complaint – Date of bringing of complaint – Receipt by the administration – Principle of legal certainty)

Appeal: against the order of 24 May 2007 of the European Union Civil Service Tribunal (Third Chamber) in Joined Cases F‑27/06 and F‑75/06 Lofaro v Commission [2007] ECR-SC I-A-1-0000 and II‑A‑1‑0000 seeking the setting aside of that order.

Held: The appeal is dismissed. Mr Alessandro Lofaro is to bear his own costs and pay the Commission’s costs before the Court of First Instance.

Summary

(Rules of Procedure of the Court of First Instance, Art. 138(1))

(Staff Regulations, Art. 90(2))

(Staff Regulations, Art. 90(2))

4. Officials – Actions – Prior administrative complaint – Date when lodged – Receipt by the administration

(Staff Regulations, Art. 90(2))

1.The fact that an appellant, in support of his appeal seeking the total annulment of an order declaring inadmissible both his claim for annulment and his claim for damages, puts forward pleas and arguments directed solely against the grounds on which his application for annulment was dismissed does not render his appeal inadmissible as regards his application for damages, provided that the inadmissibility of the latter is based, in the contested order, only on its close connection, not disputed at the appeal stage, with the application for annulment, which was itself dismissed as inadmissible.

(see paras 17, 18, 20)

2.The date to be taken into consideration for assessing whether a complaint has been lodged within the time-limit prescribed by Article 90(2) of the Staff Regulations is the date on which that complaint is received by the institution concerned. In laying down, in its first subparagraph, that ‘[t]he complaint must be lodged within three months’ and, in its second subparagraph, that the appointing authority ‘shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged’, Article 90(2) of the Staff Regulations expressly provides that the date on which the complaint is lodged is also the point at which the period of four months is set running for the institution concerned to reply to the complaint.

Within that legal framework, the principle of legal certainty, which requires that the points at which the time-limits applicable are set running and terminate must be clearly set out and strictly observed, precludes the taking into account of two separate dates for the lodging of the complaint, that is to say, first, the date on which the complaint was dispatched in order to ascertain whether it was lodged within the prescribed time-limit, and, second, the date on which the complaint was received by the institution concerned in order to define the point at which the time-limit for replying to the complaint is set running.

(see paras 29-33)

3.As regards observance of the time-limits for lodging complaints and appeals, it is for the person concerned to display all the diligence required of a normally well-informed person. In particular, it is for the person concerned to make sure that he lodges his complaint within the prescribed time-limit, taking account of the expected postal delivery period for the complaint should he choose that method of dispatch. The obligation to take account of the expected delivery period for the complaint does not preclude the possibility that the person concerned may, in exceptional circumstances, explain the lateness of his complaint by establishing, where appropriate, the existence of an unforeseeable circumstance, force majeure or an excusable error.

(see paras 37-38)

4.The mere fact that the postal delivery period varies according to the country of dispatch does not permit the inference that the taking into account of the date on which a complaint is received results in discrimination between the officials or staff members concerned, depending on the country in which they are located when they dispatch their complaints. The lodging of administrative complaints by officials is not subject to any formal requirements. Since certain delivery methods (electronic mail or fax) are immediate, the taking into account of the date on which the complaint is received does not disadvantage officials or staff members according to the country in which they are located when they dispatch their complaint.

(see paras 49-50)

5. The Court of First Instance hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

[Signatures]

ECLI:EU:C:2025:140

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