F-108/11

ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber) April 2012 (*) (Civil service – Open competition – Non-admission to the competition – Pre-litigation procedure – Procedural irregularity – Manifest inadmissibility) In Case F‑108/11, ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty in accordance with Article 106a thereof, Valentin Oprea, residing in Brussels (Belgium), represented by A. Fratini and F. Filpo, lawyers, applicant, v European Commission, represented by J. Currall and B. Eggers, acting as Agents, defendant, THE CIVIL SERVICE TRIBUNAL (Third Chamber), composed of S. Van Raepenbusch, President, R. Barents and K. Bradley (Rapporteur), Judges, Registrar: W. Hakenberg, makes the following Order 1        By application received at the Registry of the Civil Service Tribunal on 24 October 2011, Mr Oprea brought the present action for annulment of the decision of the selection board for open competition EPSO/AD/198/10 (‘the selection board’) not to admit him to that competition for non-compliance with the requirements relating to professional experience.  Background to the dispute 2        On 22 October 2010, the applicant submitted an application for open competition EPSO/AD/198/10, the notice for which had been published in Romanian in the Official Journal of the European Union of 23 September 2010 (OJ 2010 C 256 A) and which sought to constitute a reserve for future recruitment of heads of unit with Romanian citizenship. 3        On 19 January 2011, the European Personnel Selection Office (‘EPSO’) informed the applicant that he had passed the admission tests. 4        However, by letter dated 11 April 2011, EPSO informed the applicant that the selection board had decided that he could not be admitted to the competition because he had not obtained or had failed to prove in his application form that he had the relevant qualifications, namely at least 10 years’ professional experience relevant to the duties, including 3 years in management and/or staff coordination roles involving genuine personnel management responsibilities. 5        On 15 April 2011, the applicant requested the selection board to review its decision. 6        By letter of 26 May 2011, EPSO informed the applicant that the selection board had maintained the decision not to admit him to the competition. 7        On 11 July 2011, the applicant submitted, by means of an email, a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the selection board’s decision to uphold its original decision. 8        On 12 July 2011, the applicant received, in response to his email of the previous day, an email from an EPSO member of staff.  Procedure and forms of order sought 9        The applicant claims that the Tribunal should: –        annul EPSO’s decision not to admit him to open competition EPSO/AD/198/10; –        order the European Commission to take all the measures necessary to put him in a position similar to the one he would have been in, if he had been admitted to the competition; –        order the Commission to pay the costs. 10      The Commission contends that the Tribunal should: –        dismiss the action; –        order the applicant to pay the costs.  Law 11      Under Article 76 of the Rules of Procedure of the Tribunal, where an action is, in whole or in part, manifestly inadmissible, the Tribunal may, without taking further steps in the proceedings, give a decision by way of reasoned order. 12      It is settled case‑law that, if, upon reading a case-file, the Chamber hearing the case, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the inadmissibility of the application and further considers that the holding of a hearing would be unlikely to provide any new information whatsoever in that respect, the dismissal of the application by reasoned order on the basis of Article 76 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing (see, for example, order of 3 February 2009 in Case F‑40/08 Carvalhal Garcia v Council, paragraph 14). 13      In the present case, the Tribunal considers itself to be sufficiently informed by the documents provided by the applicant in support of his action and decides, in accordance with the abovementioned provision, to give a decision by way of reasoned order, without taking further steps in the proceedings. 14      It must be borne in mind first, that, according to Article 91(2) of the Staff Regulations, an action in a staff case is admissible only if the appointing authority has previously had a complaint submitted to it and the complaint has been rejected by an express or implied decision. 15      However, the Courts of the European Union have stated that the condition in Article 91 of the Staff Regulations refers only to measures which the appointing authority can review (judgment of 16 March 1978 in Case 7/77 Ritter von Wüllerstorff und Urbair v Commission, paragraph 9, and judgment of 14 July 1983 in Case 144/82 Detti v Court of Justice, paragraph 16), with the result that, according to settled case‑law, the legal remedy available regarding decisions of a competition selection board normally consists of a direct application to the Courts of the European Union (judgment of 31 May 2005 in Case T‑294/03 Gibault v Commission, paragraph 22, and judgment of 23 November 2010 in Case F‑50/08 Bartha v Commission, paragraph 25). 16      Furthermore, it also follows from the settled case‑law that, if the person concerned nevertheless chooses to submit an administrative complaint against a decision of a selection board to the appointing authority first, the admissibility of an action brought subsequently against a decision rejecting that complaint will depend on his compliance with all the procedural requirements applicable to the prior complaint (see, for example, Gibault v Commission, paragraph 22). In particular, inasmuch as a complaint is submitted against a decision of a selection board, the prescribed period for bringing an action begins to run, in accordance with Article 91 of the Staff Regulations, from the day on which the decision taken in response to the complaint is notified to the applicant (Detti v Court of Justice, paragraph 17; judgment of 27 June 1991 in Case T‑156/89 Valverde Mordt v Court of Justice, paragraph 90; Bartha v Commission, paragraph 26). 17      In the present case, it is apparent from the documents provided by the applicant that he received the decision rejecting his request for review on 26 May 2011. Consequently, the direct application to the Tribunal against that decision should have taken place on 6 September 2011 at the latest, with the result that the action brought on 24 October 2011, inasmuch as it referred the decision of 26 May 2011 directly to the Tribunal, is out of time and therefore manifestly inadmissible. 18      However, it is common ground that the applicant challenged the decision of the selection board of 26 May 2011 by submitting a complaint under Article 90(2) of the Staff Regulations on 11 July 2011. 19      The email which the applicant received on 12 July 2011 in response to his complaint was worded as follows: ‘We have looked at your correspondence and application file and as the Selection Board has already examined your request for review following the oral test and confirmed its decision, I should draw your attention to the Guide to Open Competitions, point 6, which describes the procedures in place for further complaints, should you feel this is necessary.’ 20      It is clear that the email of 12 July 2011 cannot in any event be considered to be a response to the applicant’s complaint and that that email was obviously sent to the applicant in error. It is apparent that that email concerns a situation which is not that of the applicant by referring to a request for review submitted after the oral test, whereas the applicant had been informed by EPSO as early as 11 April 2011 that he had not been admitted to the competition. Consequently, he had not participated in the oral test. 21      Furthermore, although the legal designation of a measure such as the email of 12 July 2011 is a matter for the Tribunal alone and not for the parties (see, to that effect, judgment of 13 April 2011 in Case F‑105/09 Scheefer v Parliament, paragraph 24), it must be pointed out that the applicant himself came to the same conclusion by stating in his application that ‘the email of 12 July 2011 does not constitute a substantive decision on the complaint within the meaning of Article 90(2) of the Staff Regulations’. 22      It follows from the above that the complaint submitted by the applicant was not the subject of an explicit decision and that an implied decision was only made on 11 November 2011, that is to say at a point in time after the commencement, on 24 October 2011, of the present action. 23      It follows that, inasmuch as the present action was brought following the complaint, but before the decision to reject it, it is, by virtue of Article 91(2) of the Staff Regulations, premature and therefore inadmissible (judgment of 20 June 1990 in Joined Cases T‑47/89 and T‑82/89 Marcato v Commission, paragraph 32, and judgment of 3 May 2007 in Case T‑343/04 Tsarnavas v Commission, paragraph 93). 24      It remains to be examined whether the applicant may rely on the existence of an excusable error. 25      In that regard, it must be borne in mind that the concept of excusable error must be strictly construed and concerns only exceptional circumstances, in particular where the conduct of the institutions has been, 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 operator (judgment of 11 November 2008 in Case T‑390/07 Speiser v Parliament, paragraph 33; order of 10 May 2011 in Case F‑59/10 Barthel and Others v Court of Justice, paragraph 28). 26      That is not the case here. 27      It is admittedly regrettable that EPSO sent the applicant the email of 12 July 2011 which was manifestly irrelevant. However, in the light of the content of that email, a normally attentive candidate should have questioned its legal character with the result that it cannot be claimed that the sending of that email was capable, either alone or to a decisive extent, of giving rise to a pardonable confusion in the mind of the applicant. 28      Furthermore, the Tribunal recalls that it is for the parties to pay close attention to the course of the procedure and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (see, to that effect, order of 8November 2007 in Case C‑242/07 P Belgium v Commission, paragraph 17; order of 12 December 2011 in Case T‑365/11 P AO v Commission, paragraph 32). 29      Admittedly, the Staff Regulations do not make the response to a complaint subject to any formality. However, the fact that the decisions of the selection board of 11 April 2011 and 26 May 2011 were sent to the applicant by letters containing specific references to the competition concerned, the applicant’s candidate number and the words ‘For the Chairperson of the Selection Board’, as well as the name, position and electronic signature of the signatory, should have led the applicant, in accordance with the obligation of diligence referred to above, at least to request clarification from EPSO as to the exact nature of the email of 12 July 2011, which did not contain any of the abovementioned information. 30      It follows from the foregoing that the action must be dismissed as manifestly inadmissible.  Costs 31      Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he or she is not to be ordered to pay any. 32      It follows from the grounds set out above that the applicant has been unsuccessful. Furthermore, in its submissions the Commission has expressly claimed that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must therefore be ordered to pay the costs in their entirety. On those grounds, THE CIVIL SERVICE TRIBUNAL (Third Chamber) hereby orders: 1.      The action is dismissed as manifestly inadmissible. 2.      Mr Oprea is ordered to pay the costs in their entirety. Luxembourg, 25 April 2012. W. Hakenberg          S. Van Raepenbusch Registrar          President The text of the present decision and the texts of the decisions of the Courts of the European Union cited in it are available on the internet site www.curia.europa.eu * Language of the case: English.