João Miguel Barata v European Parliament.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2021:113
• Date: 03 March 2021
• Docket Number: T-723/18
• Celex Number: 62018TJ0723
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition)

3 March 2021 ( *1 )

(Civil service – Officials – Promotion – Certification procedure – Exclusion of the applicant from the final list of officials entitled to take part in the training programme – Article 45a of the Staff Regulations – Action for annulment – Communication by registered letter – Article 26 of the Staff Regulations – Registered letter not collected by the person to whom it was addressed – Starting point of the period prescribed for instituting proceedings – Admissibility – Obligation to state reasons – Right to be heard – Principle of sound administration – Proportionality – Rules on the use of languages)

In Case T‑723/18,

João Miguel Barata, residing in Evere (Belgium), represented by G. Pandey, D. Rovetta and V. Villante, lawyers,

applicant,

v

European Parliament, represented by J. Steele and I. Terwinghe, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU seeking annulment of the decision of 23 July 2018, the act of 7 December 2017, the act of 21 December 2017, the letter of 1 March 2018, the letter of 22 March 2018 concerning the applicant’s candidacy in the 2017 certification procedure and the notice of internal competition of 22 September 2017,

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed of R. da Silva Passos, President, V. Valančius, I. Reine, L. Truchot and M. Sampol Pucurull (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 1 July 2020,

gives the following

Judgment

Background to the dispute

1 On 22 September 2017, the European Parliament published a call for applications (‘the notice of competition’) for the 2017 certification exercise, in order to select officials in the AST function group who were suitable for appointment to a post in the AD function group. On 27 September 2017, the applicant, Mr João Miguel Barata, who is an official of the Parliament, submitted an application.

2 On 7 December 2017, the appointing authority rejected that application as inadmissible, on the ground that it was not accompanied by the obligatory list of annexes (‘the act of 7 December 2017’).

3 On 13 December 2017, the applicant requested a further examination of his application.

4 On 21 December 2017, the appointing authority confirmed the act of 7 December 2017 (‘the act of 21 December 2017’).

5 On 2 February 2018, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

6 By letter of 1 March 2018 (‘the letter of 1 March 2018’), the appointing authority reiterated that the applicant was not allowed to participate in the 2017 certification procedure and informed him of the possibility of lodging an appeal with the Joint Certification Procedure Committee (‘COPAC’).

7 On 8 March 2018, the applicant lodged an appeal with COPAC.

8 By letter of 22 March 2018, COPAC indicated to the applicant that it had advised the appointing authority to reject that appeal (‘the letter of 22 March 2018’).

9 On 28 March 2018, the appointing authority confirmed the rejection of the applicant’s application.

10 On 13 April 2018, the applicant lodged a complaint against the decision of 28 March 2018.

11 On 16 April 2018, the Parliament published the list of successful candidates.

12 On 23 July 2018, the appointing authority rejected the applicant’s complaints and confirmed its decision not to allow him to participate in the procedure for the selection of officials suitable for appointment to a post in the AD function group (‘the decision of 23 July 2018’). The Parliament communicated that decision by registered letter with acknowledgement of receipt, sent to the applicant’s home address. On 25 July 2018, the Belgian postal service delivered that letter to the applicant’s home address and, in the applicant’s absence, left a notice of attempted delivery. As that letter was not collected by the applicant, the Belgian postal service sent it back to the Parliament on 9 August 2018.

13 On 28 August 2018, the Parliament sent an email to the applicant to which the decision of 23 July 2018 was annexed.

Procedure and forms of order sought

14 By application lodged at the Court Registry on 7 December 2018, the applicant brought the present action.

15 The defence, the reply and the rejoinder were lodged at the Court Registry on 25 February, 25 April, and 7 June 2019, respectively.

16 On 9 July 2019, the applicant lodged a request for a hearing.

17 Following a change in the composition of the General Court by decision of 18 October 2019, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure of the General Court, reallocated the case to a new Judge-Rapporteur, assigned to the Seventh Chamber.

18 On a proposal from the Seventh Chamber, the Court decided on 6 December 2019, under Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.

19 On a proposal from the Judge-Rapporteur, the Court (Seventh Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties. The parties replied to those questions within the period prescribed. The hearing, scheduled for 2 April 2020, was postponed to 1 July 2020.

20 The applicant claims that the Court should: – annul the decision of 23 July 2018, the act of 7 December 2017, the act of 21 December 2017, the letter of 1 March 2018, the letter of 22 March 2018 and the notice of competition; – order the Parliament to bear the costs.

21 The Parliament contends that the Court should: – dismiss the action as inadmissible; – in the alternative, dismiss the action as unfounded, and – order the applicant to pay all the costs.

Law

Admissibility

22 The Parliament raises two pleas of inadmissibility, alleging, first, that the application was brought out of time and, secondly, that the application does not comply with Article 76(d) of the Rules of Procedure.

The action being brought out of time

23 The Parliament maintains that the action is inadmissible as it was brought out of time. It states that it notified the decision of 23 July 2018 to the applicant by means of a registered letter with acknowledgement of receipt. On 25 July 2018, the postal service delivered that letter to the applicant’s home address, in Brussels (Belgium), and, in his absence, left a notice of attempted delivery. As the applicant did not collect that letter before the expiry of the legally required period of retention by the postal services on 9 August 2018, the period for appeal started to run from that date and expired on 19 November 2018. The action, brought on 7 December 2018, was therefore brought out of time.

24 The applicant challenges the validity of the notification by post of the decision of 23 July 2018, which he claims was only made available to him when the Parliament sent it to him by email on 28 August 2018. He claims that, since the period for bringing an action began to run from that date, the action was not brought out of time.

25 It should be noted that the second paragraph of Article 25 of the Staff Regulations provides that ‘any decision relating to a specific individual which is taken under [the] Staff Regulations shall at once be communicated in writing to the official concerned’. Since it does not prescribe the method or methods for communicating an individual decision ‘in writing’, that provision must be interpreted as meaning that the administration has several possibilities in that regard, including by electronic means (see, to that effect, judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 54).

26 Electronic means are not the only possible way of notifying administrative decisions. The administration may also use registered post with acknowledgement of receipt, a method expressly provided for in the third paragraph of Article 26 of the Staff Regulations, which states that ‘the communication of any document to an official shall be evidenced by his signing it or, failing that, shall be effected by registered letter to the last address communicated by the official’. Due to the specific guarantees it offers both to the official and to the administration, the registered letter with acknowledgement of receipt is recognised as a reliable method of notification (see, to that effect, judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 61).

27 It follows from those factors that the administration is in principle free to choose the method which it considers most appropriate in the light of the circumstances of the case in order to notify a decision rejecting a complaint, since the Staff Regulations do not impose any order of priority between the various possible methods, such as electronic means or registered letter with acknowledgement of receipt.

28 Furthermore, it is important to recall that Article 91(3) of the Staff Regulations provides that an appeal is to be filed within...