Orders nº T-272/19 of Tribunal General de la Unión Europea, July 31, 2020

• Resolution Date: July 31, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-272/19

(Action for annulment and for damages - Civil service - Members of the contract staff - Refusal to employ on the ground that the candidate is unfit to perform duties - Time limit for bringing proceedings - Public policy - Delay - Calculation of the time limit - Determination of the date from which the person concerned could have become aware of the content of the decision - Manifest inadmissibility)

In Case T-272/19,

TO, residing in Brussels (Belgium), represented by É. Boigelot, lawyer,

applicant,

v

European External Action Service (EEAS), represented by S. Marquardt and R. Spac, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU seeking, on the one hand, annulment, first, of the EEAS decision of 15 June 2018 informing the applicant that she did not fulfil all of the conditions of employment laid down in Article 82 of the Conditions of Employment of Other Servants of the European Union and that she could not be recruited as a member of the contract staff of the EEAS and, second, of the decision of the EEAS of 14 January 2019 rejecting her complaint of 14 September 2018, and, on the other hand, compensation for the damage which the applicant claims to have suffered,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

composed of J. Svenningsen, President, R. Barents, C. Mac Eochaidh, T. Pynnä (Rapporteur) and J. Laitenberger, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 By decision of 15 June 2018, the authority empowered to conclude contracts of employment (‘AECE’) of the European External Action Service (EEAS) informed the applicant, a candidate for a contract agent post within the EEAS, that she did not fulfil all of the conditions of employment laid down in Article 82 of the Conditions of Employment of Other Servants of the European Union (‘CEOS’) and that she could not be recruited as a contract agent. The EEAS sent this decision to the applicant at her personal email address on 15 June 2018.

2 On 14 September 2018, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against that decision. That complaint was lodged by electronic means using the business email address of the applicant’s legal counsel, with a copy sent to the applicant’s personal email address.

3 By decision of 14 January 2019, the AECE of the EEAS rejected the applicant’s complaint. The EEAS sent that decision to the applicant and to her counsel, first via the Ares program, a document management system that allows emails to be generated and sent to addressees who are not EEAS staff members, on 14 January 2019 at 17.46, and then by email on the same day at 17.52 and at 18.05.

4 At 8.40 on 15 January 2019, the applicant sent an email to her counsel concerning that decision, from the same email address used by the EEAS to send that decision and the decision of 15 June 2018.

5 On several occasions, the EEAS asked the applicant, by email, to confirm that she had received that decision on 14 January 2019 at 17.52 and at 18.05 and then on 22 January 2019. Those requests received no reply.

Procedure and forms of order sought

6 By application lodged at the Court Registry on 25 April 2019, the applicant brought the present action.

7 On 16 September 2019, the EEAS submitted its defence.

8 By decision of the President of the General Court of 17 October 2019, the present case was assigned to a new Judge-Rapporteur, sitting in the Eighth Chamber.

9 On 5 November 2019, the applicant lodged her reply at the Court Registry.

10 On 24 January 2020, the EEAS submitted its rejoinder.

11 On 14 February 2020, the Court (Eighth Chamber), on a proposal by the Judge-Rapporteur and in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, put written questions to the parties and invited them to reply in writing.

12 On 2 March 2020, the parties submitted their replies to the Court’s questions.

13 On 21 April 2020, on a proposal from the President of the Court, the Court decided to refer the case to a chamber sitting in extended composition pursuant to Article 28 of the Rules of Procedure.

14 By document lodged at the Court Registry on 28 April 2020, the applicant requested that a hearing be held. The EEAS did not express a view within the prescribed period as to whether there should be a hearing.

15 The applicant claims that the Court should:

- annul the decision of 15 June 2018 by which the AECE of the EEAS informed her that she did not fulfil all of the conditions of employment laid down in Article 82 of the CEOS and that she could not be recruited as a member of the contract staff of the EEAS;

- annul the decision of 14 January 2019 by which the EEAS rejected her complaint lodged on 14 September 2018 (‘the contested decision’);

- order the EEAS to pay her compensation for various heads of loss;

- order the EEAS to pay the costs.

16 The EEAS contends that the Court should:

- dismiss the action as in part inadmissible and in part unfounded;

- order the applicant to pay the costs.

17 In the rejoinder, the EEAS further submits that the action is inadmissible as the application was lodged out of time.

Law

18 Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In the present case, as the Court considers that it has sufficient information in the file before it, it has decided to give a decision on the action without taking further steps in the proceedings, even though the applicant has submitted a request for a hearing (see, to that effect, orders of 24 September 2008, Van Neyghem v Commission, T-105/08 P, EU:T:2008:402, paragraph 21, and of 2 December 2010, Apostolov v Commission, T-73/10 P, not published, EU:T:2010:496, paragraph 11).

19 In the rejoinder, without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, the EEAS submits for the first time that the contested decision was notified to the applicant on 14 January 2019 and that the three-month period for bringing an appeal under Article 91(3) of the Staff Regulations, increased by the 10-day extension on account of...