(Review)

In Case C‑334/12 RX,

PROPOSAL for review made by the First Advocate General, in accordance with Article 62 of the Statute of the Court of Justice of the European Union, on 6 July 2012,

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts (Rapporteur) and J.-C. Bonichot, Presidents of Chambers,

gives the following

1This proposal for review made by the First Advocate General concerns the judgment of the General Court of the European Union (Appeal Chamber) of 19 June 2012 in Case T‑234/11 P Arango Jaramillo and Others v EIB, not yet published in the ECR‑SC, by which that court dismissed the appeal brought by Mr Arango Jaramillo and 34 other members of the staff of the European Investment Bank (EIB) (collectively, ‘the applicants’) against the order of the Civil Service Tribunal of the European Union (First Chamber) of 4 February 2011 in Case F‑34/10 Arango Jaramillo and Others v EIB, not yet published in the ECR‑SC, rejecting, on the ground that it was out of time, their application for, first, annulment of their salary statements for February 2010, in so far as they disclose the EIB’s decisions to increase their contributions to the pension scheme, and, second, an order that the EIB pay damages.

2It is apparent from the judgment in Arango Jaramillo and Others v EIB that, since 1 January 2007, the salary statements of EIB staff are no longer produced in their traditional format on paper but in electronic format. They are now entered in the EIB’s ‘Peoplesoft’ computer system each month and can thus be accessed by every staff member from his office computer.

3On Saturday 13 February 2010, the salary statements for February 2010 were entered in the ‘Peoplesoft’ system. Those statements, as compared with the statements for January 2010, showed an increase in the rate of contributions to the pension scheme, an increase resulting from decisions taken by the EIB as part of the reform of its staff pension scheme.

4On 26 May 2010, the applicants brought an action before the Civil Service Tribunal seeking, first, annulment of their February 2010 salary statements and, second, an order that the EIB pay a symbolic EUR 1 by way of compensation for the non‑material harm suffered.

5By separate document lodged at the Registry of the Civil Service Tribunal, the EIB requested the Tribunal to rule on the admissibility of the application without examining the substance of the case.

6By the order in Arango Jaramillo and Others v EIB, the Civil Service Tribunal dismissed the action as inadmissible. In essence, it held that the time‑limit for bringing those proceedings, which began to run on Monday 15 February 2010, expired, taking into account the ten‑day extension of the time‑limit on account of distance, on Monday 25 May 2010, so that, as the applicants’ application was received at the Civil Service Tribunal Registry by electronic means only on 26 May 2010 at 00.00 hours, it was to be regarded as out of time and, therefore, inadmissible.

7The applicants appealed against that order before the General Court of the European Union, which dismissed the appeal by the judgment in Arango Jaramillo and Others v EIB referred to above.

8At paragraphs 22 to 25 of that judgment, the General Court of the European Union referred, essentially, to the case‑law which establishes that, in the absence of any provision laying down time‑limits for bringing proceedings applicable to disputes between the EIB and its staff, such proceedings must be brought within a reasonable period of time. Taking the view that the period of three months laid down in Article 91(3) of the Staff Regulations of Officials of the European Union for disputes between European Union institutions and their officials or agents provides a ‘relevant point of comparison’, in so far as such disputes are, by their nature, similar to internal disputes between the EIB and its staff concerning EIB measures adversely affecting the latter which they seek to have annulled, it held, at paragraph 27 of the judgment, on the basis of some of its earlier decisions, that observance of such a time‑limit must, in principle, be regarded as reasonable.

9At paragraph 27 of the judgment, the General Court of the European Union deduced from this ‘by converse implication …. that any action brought by a EIB staff member after the expiry of a three‑month time limit, extended on account of distance by a period of ten days, must, in principle, be considered not to have been brought within a reasonable period’. It added that such an interpretation is justified ‘because it is possible to satisfy the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice only if procedural rules laying down time‑limits are applied strictly’.

10At paragraph 30 of the judgment in Arango Jaramillo and Others v EIB, the General Court of the European Union dismissed the applicants’ criticism to the effect that, instead of applying the rule that an action must be brought within a reasonable period, which is by nature flexible and open to the balancing of the specific interests at stake, the Civil Service Tribunal had required strict compliance with a fixed, generalised time-limit of three months. It took the view, in particular, that the Civil Service Tribunal had simply applied a rule of law which ‘is based on general presumption that the three‑month time‑limit is, in principle, sufficient to enable EIB staff to evaluate the legality of EIB measures adversely affecting them and, if appropriate, to prepare their case’, without ‘requiring … the European Union court responsible for applying it to take account of the particular circumstances of each individual case and, in particular, to balance the specific interests at stake’.

11At paragraph 39 of the judgment, the General Court of the European Union reiterated that ‘the strict application of procedural rules laying down time‑limits’ satisfies, in particular, the requirements of legal certainty.

Assessment

12It should be noted, first, that although it has been held that, in the absence of any indication in the EIB Staff Regulations as regards the time‑limit for bringing actions in disputes between the EIB and its staff, reference should be made to the concept of a ‘reasonable period’ (see, to that effect, Case T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, paragraphs 51 to 58), the EIB has not, to date, adopted any such provision.

13Following that preliminary point, it must be noted that there is a serious risk that the unity or consistency of European Union law might be affected in that it is apparent from the judgment in Arango Jaramillo and Others v EIB that the period of three months and ten days, which must, in principle, be considered a reasonable period within which an EIB staff member is required to bring an action for annulment of an EIB measure adversely affecting such a staff member, is a period which, if exceeded, has the effect of making the action out of time and, therefore, inadmissible, without the European Union Courts being required to take account of the particular circumstances of the individual case.

14That serious risk arises for two reasons, which justify a review of the judgment in Arango Jaramillo and Others v EIB.

15First, it is necessary to determine whether, by taking the view that the Civil Service Tribunal is not required, in assessing whether the period within which an action was brought by EIB staff for annulment of a measure adopted by the EIB is reasonable, to take account of the particular circumstances of the individual case, the General Court of the European Union adopted, by a contrario reasoning, an interpretation that is consistent with the case‑law to the effect that the reasonableness of a period which is not laid down by primary or secondary European Union law must be assessed by reference to the circumstances specific to each case (see, in particular, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 187 and 192, and the judgment of 7 April 2011 in Case C‑321/09 P Greece v Commission, paragraphs 33 and 34).

16Second, it is necessary to ascertain whether, by finding that, where a period for bringing an action not provided for by primary or secondary European Union law is exceeded, the action is time‑barred, the interpretation of the General Court of the European Union might not interfere with the right to an effective judicial remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

17If, as a result of the findings made, the judgment in Arango Jaramillo and Others v EIB is vitiated by an error of law, it will be necessary to examine whether and, if so, to what extent that judgment might affect the unity or consistency of European Union law.

On those grounds, the Court (Special Chamber provided for in Article 123b of the Rules of Procedure) hereby decides:

1)There should be a review of the judgment of the General Court of the European Union (Appeal Chamber) of 19 June 2012 in Case T‑234/11 P Arango Jaramillo and Others v EIB.

2)That review should consider the question whether the judgment of the General Court of the European Union of 19 June 2012 in Case T‑234/11 P Arango Jaramillo and Others v EIB affects the unity or consistency of European Union law in that the General Court, as appeal court, interpreted the concept of a ‘reasonable period’, in the context of an action brought by staff members of the European Investment Bank for annulment of a measure adopted by that bank adversely affecting those members, as a period which, if exceeded, has the effect of making the action out of time and, therefore, inadmissible, without the European Union Courts being required to take account of the particular circumstances of the individual case, and whether that interpretation of the concept of a ‘reasonable period’ might not interfere with the right to an effective judicial remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

3)The persons referred to in Article 23 of the Statute of the Court of Justice of the European Union and the parties to the proceedings before the General Court of the European Union are invited to lodge their written observations on those questions at the Court of Justice of the European Union within one month of the service of the present decision.

[Signatures]