C-312/97

ORDER OF 25. 6. 1998 — CASE C-312/97 P

ORDER OF THE COURT (Third Chamber) 25 June 1998 *

In Case C-312/97 P,

Augusto Fichtner, an official at the Commission of the European Communities, represented by Vincenzo Salvatore, of the Pavia Bar, with an address for service at 6 Via Orrigoni, Varese,

appellant,

APPEAL brought against an order of the Court of First Instance of the European Communities (Fourth Chamber) of 9 July 1997 in Case T-63/96 Fichtner v Com- mission [1997] ECR-SC II-563 and seeking to have that order set aside,

composed of: C. Gulmann, President of the Chamber, J. C. Moitinho de Almeida and J.-P. Puissochet (Rapporteur), Judges,

Advocate General: G. Cosmas, Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By application lodged at the Registry of the Court of Justice on 8 September 1997, Mr Fichtner brought an appeal against an order of the Court of First Instance of 9 July 1997 in Case T-63/96 Fichtner v Commission [1997] ECR-SC II-563 (herein­ after 'the contested order'), dismissing as manifestly inadmissible his action for annulment of the Commission's decision of 12 February 1996 expressly rejecting his complaint of 14 February 1995 relating to his staff report for the period 1 July 1991 to 30 June 1993 and for damages for material and non-material loss allegedly suffered.

2. The Commission adopted general implementing provisions in respect of Article 43 of the Staff Regulations (hereinafter "the implementing provisions") on 27 July 1979.

3. Article 6 of the implementing provisions provides:

"The assessor shall compile the report and refer it to the official assessed [...]. The official shall sign it within 15 working days. He may append any comments which he considers relevant and, where necessary, ask that the report and the comments thereon be submitted to an appeal assessor appointed as provided for in Article 7".

4. Article 7 of the implementing provisions provides:

"following [assessment by the appeal assessor, ] the report shall be referred to the official, who shall sign it within 15 working days. He may append any comments thereon which he considers relevant.

If the official so requests, the entire report and the comments thereon shall be referred to the Joint Committee on Staff Reports for its opinion.

7. On 10 August 1994 the applicant formulated comments for the attention of the appeal assessor in accordance with Article 6 of the implementing provisions.

8. By note of 16 January 1995 the appeal assessor confirmed the applicant's first report.

9. By note registered on 14 February 1995 the applicant submitted a complaint under Article 90 of the Staff Regulations, seeking amendment of the contested report and compensation for the material and non-material damage which he had allegedly suffered.

10. By decision of 12 February 1996, notified to the applicant on 20 February 1996, the Commission expressly rejected his complaint'.

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appointing authority by the end of that period, that is deemed to constitute an implied decision rejecting the complaint. An action may be brought against that decision under Article 91(3) within three months from the date of expiry of the period prescribed for replying to the complaint. In this case, the Court of First Instance stated that the Commission's failure to reply expressly to the applicant's complaint, which was registered on 14 February 1995, within the four-month time-limit laid down by Article 90(2), was deemed to constitute an implied decision adopted on 14 June 1995 rejecting the complaint and that it was for the applicant to bring an action against that implied decision within the three-month period prescribed by Article 91(3), in other words, by 25 September 1995, allowing for extension of time on account of distance. Since he did not bring his action until 10 May 1996, his action was out of time (paragraphs 22 to 24).

8 Fourthly, the Court of First Instance stated that it is settled case-law that failure to comply with the time-limit prescribed by Article 91(3) of the Staff Regulations does not prevent an application from being admissible where the applicant com­ mitted an excusable error, a concept which must be construed narrowly and can relate only to exceptional circumstances in which, in particular, the conduct of the institution concerned was in itself 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 an ordinarily well-informed official. In this case, the Court of First Instance found that the applicant had not adduced any evidence from which it might be inferred that he had committed an error of such a nature (paragraphs 25 and 26).

12 His main submission in support of those claims is that the Court of First Instance was wrong in finding that the administrative procedure closed on the expiry of the period of four months from the lodging of his complaint. He maintains that the procedure was closed only by the Commission's express decision of 12 February 1996, which cannot, in the light of its wording and having regard to the fact that he had been requested to attend a meeting beforehand during which he was informed of the adoption of that decision, be regarded as a confirmatory act. In the alterna­ tive, Mr Fichtner requests the Court of Justice to find, in accordance with the case- law cited by the Court of First Instance, that he committed an excusable error.

13 The Commission contends that the appeal should be dismissed and that the appli­ cant should be ordered to pay the costs.

1 4 The Commission contends that, as the Court of First Instance held in the light of settled case-law, the express decision of 12 February 1996 was a purely confirma­ tory act intended solely to provide the applicant with information as to the grounds of the implied decision rejecting his complaint. It also contends that the

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Court of First Instance was right in finding that the applicant had not adduced any evidence from which it might be inferred that he had committed an excusable error as regards the time-limit for bringing an action.

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adopted in response to the complaint or, since there is no provision for interrup­ tion of the four-month period, by the fact that the applicant had earlier been requested to attend a meeting which was postponed and during which he was informed of the adoption of the decision. It is also settled case-law that an applica­ tion for annulment of a confirmatory act is inadmissible (see, in particular, Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473, paragraph 16). The main plea in law is therefore manifestly lacking in foundation.

18 As regards Mr Fichtner's alternative submission, it is sufficient to point out that he confines himself to referring to the case-law cited by the Court of First Instance on the exceptional circumstances which must exist for a plea of excusable error to be entertained. He does not put forward any legal argument which might call into question the Court of First Instance's finding, at paragraph 26 of the contested order, that the applicant did not adduce any evidence from which it might be inferred that he had committed an error of such a nature. His alternative claim is therefore manifestly inadmissible.

19 The appeal must therefore be dismissed, pursuant to Article 119 of the Rules of Procedure.

Costs

1. The appeal is dismissed.

2. The applicant is ordered to pay the costs.

Luxembourg, 25 June 1998.

R. Grass C. Gulmann

Registrar President of the Third Chamber

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