ORDER OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)
29June 2011
Case F‑125/10
Daniel Schuerewegen
v
European Parliament
(Civil service— Officials— Measure removing the applicant from his place of work— Withdrawal of his staff card— Withdrawal of his rights of access to the IT network— Prior administrative complaint— Sent by electronic means— Administration actually aware of it— Out of time— Manifest inadmissibility)
Application:brought under Article270 TFEU, applicable to the EAEC Treaty pursuant to Article106a thereof, in which MrSchuerewegen seeks, first, annulment of the Parliament’s decisions of 25March 2010 withdrawing his staff card, withdrawing access to the institution’s IT network and removing him from the institution’s premises, and, second, compensation for the material and non-material harm allegedly caused to him by those decisions.
Held:The action is dismissed as manifestly inadmissible. The applicant is to pay all the costs.
Summary
1.Officials— Actions— Prior administrative complaint— Date when lodged— Receipt by the administration
(Staff Regulations, Art. 90(2))
2.Officials— Actions— Prior administrative complaint— Formal conditions— Sending by electronic means— Lawfulness— Official’s duty to ensure actual receipt by the administration
(Staff Regulations, Art. 90(2))
3.Officials— Actions— Prior administrative complaint— Time-limits
(Staff Regulations, Arts 90 and 91)
1.For a complaint to be regarded as duly lodged, within the meaning of Article90(2) of the Staff Regulations, its addressee must have been able to have effective knowledge of its content. Consequently, the date to be taken into consideration, for assessing whether a complaint was lodged within the prescribed time-limit, is the date when it was received by the institution concerned. The date when it was lodged also constitutes the point at which the time-limit of four months starts running for the institution concerned to reply to the complaint. Article90(2) of the Staff Regulations thus clearly requires one single date to be taken into consideration, first, for assessing whether the complaint was lodged within the prescribed time-limit, and second, for determining the date on which the time-limit for the institution to reply starts to run.
(see paras 22, 23, 25)
See:
26November 1981, 195/80 Michel v Parliament, para. 13
25September 1991, T‑54/90 Lacroix v Commission, paras 28 and 29; 18June 1996, T‑150/94 Vela Palacios v ESC, para. 27
15May 2006, F‑3/05 Schmit v Commission, para. 28; 25April 2007, F‑59/06 Kerstens v Commission, paras 34 to 36
2.An administrative complaint lodged by an official does not need to take any particular form. It is sufficient that it should clearly and precisely manifest its author’s intention to challenge a decision taken concerning him. A document sent electronically which unequivocally manifests its author’s intention to challenge a decision adversely affecting him must therefore be regarded as a complaint within the meaning of Article90(2) of the Staff Regulations.
However, an official is not justified in claiming that the mere sending of an email proves that the addressee of that message actually received it.
(see paras 30, 34)
See:
31May 1988, 167/86 Rousseau v Court of Auditors, para. 8
16February 2005, T‑354/03 Reggimenti v Parliament, para. 43
25April 2007, F‑71/06 Lebedef-Caponi v Commission, paras 29 to 31 and 34; 17July 2007, F‑141/06 Hartwig v Parliament and Commission, para. 27
3.An official exercising ordinary care must ensure that his complaint reaches the institution concerned before the expiry of the three month time-limit. An official does not demonstrate that attitude of caution and care if he does not dispatch his complaint by post until the final day of the time-limit laid down or if he does not send his complaint electronically himself, or by his duly authorised agent, within that time-limit. He cannot reasonably claim that he was penalised by the fact that the services of the institution concerned were closed on the final day of the time-limit.
(see para. 36)
See:
Hartwig v Parliament and Commission, para. 30