T-109/98

Commission of the European Communities, represented by Julian Carrell, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

* Language of the case: French.

II - 3385

ORDER OF 24. 11. 1999 — CASE T-109/98

APPLICATION for the annulment of the Commission's decision of 10 October 1997 which imposed on the applicant the disciplinary measure of downgrading from Grade D 1, Step 8 to Grade D 2, Step 8, on the grounds that he had failed to comply with his obligations under the Staff Regulations of Officials of the European Communities,

A.V.M. V COMMISSION

2 As established by an investigation, two computers belonging to the Commission were stolen by the applicant on 27 and 28 May 1994.

3 The Director-General for Personnel and Administration, acting in his capacity as appointing authority, initiated, pursuant to Article 87 of the Staff Regulations of Officials of the European Communities ('the Staff Regulations'), a disciplinary procedure in respect of the applicant, who had been heard on the matter. For the purposes of this procedure, the appointing authority brought the matter before the Disciplinary Board by a note dated 29 September 1994 which was accompanied by the report required by the first paragraph of Article 1 of Annex IX to the Staff Regulations stating the facts complained of and the circumstances in which they arose.

4 On 31 January 1995, having heard the applicant, assisted by his lawyer and by the trade union representative, and the applicant's witness, Dr Mancini, the Disciplinary Board delivered its reasoned opinion in accordance with Article 7 of Annex IX to the Staff Regulations and 'unanimously recommended [to the appointing authority] the imposition on Mr V. M. of the disciplinary measure referred to in Article 86(2)(e), namely downgrading from Grade D 1, Step 8, to Grade D 2, Step 8'.

5 On 8 March 1995 the appointing authority proceeded, in accordance with the third paragraph of Article 7 of Annex IX to the Staff Regulations, to hear the applicant's case. During the hearing, the applicant's lawyer, Mr Vogel, asked the Director-General of Personnel and Administration to stay the disciplinary proceedings and to order a re-assessment of the situation after a period of supervision, both administrative and medical.

10 By letter of 15 October 1997 addressed to the appointing authority and headed 'Complaint pursuant to Article 90 of the Staff Regulations', the applicant disputed several aspects of the decision imposing the disciplinary measure and made supplementary observations. II - 3388

A.V.M. V COMMISSION

1 1 By letter of 26 November 1997, the applicant's adviser supplemented the complaint, setting out his reasons for disputing the legality of the disciplinary measure imposed. He claimed that the disciplinary measure should be annulled and that the disciplinary proceedings against the applicant should be closed and requested that no other disciplinary measures be taken in respect of the applicant. In a second letter dated 9 December 1997 addressed to the appointing authority, the applicant's adviser put forward further submissions concerning the time-limits laid down in Annex IX to the Staff Regulations and an alleged breach of medical confidentiality on the part of the doctor at the Administration's Medical Service.

12 On 16 February 1998, the appointing authority took the decision to reject the applicant's complaint of 15 October 1997. That decision was received by the applicant on 24 February 1998.

Procedure and forms of order sought by the parties

13 By letter lodged at the Registry of the Court of First Instance on 17 April 1998, the applicant applied to the Court for legal aid pursuant to Article 94 of the Rules of Procedure, with a view to bringing an action against the Commission's decision of 10 October 1997 imposing the disciplinary measure of downgrading.

— order that no other disciplinary measure be taken in respect of him;

— order the Commission to pay all of the costs.

17 The Commission contends that the Court should:

— dismiss the action as unfounded;

— make an appropriate order as to costs. II - 3390

A.V.M. V COMMISSION

21 It is settled case-law that the conditions governing the admissibility of an action, as laid down in Articles 90 and 91 of the Staff Regulations, in particular those II - 3391

ORDER OF 24. 11. 1999 — CASE T-109/98

relating to the time-limit for bringing an action, are a matter of public policy and that the Community judicature may, therefore, examine them of its own motion (judgment of the Court of Justice in Case C-246/95 Coen ν Belgian State [1997] ECR1-403, paragraph 21 and order of the Court of First Instance in Case T-37/93 Stagakis ν Parliament [1994] ECR-SC 11-451, paragraph 17). In the present case, it is necessary to consider whether the action was commenced within the period of three months prescribed by Article 91(3) of the Staff Regulations.

22 Under Article 91(3) of the Staff Regulations that period runs from the date of notification of the decision taken in response to the complaint. In the present case time started to run on 24 February 1998.

23 Under Article 101(l)(b) of the Rules of Procedure of the Court of First Instance, the period expired on 24 May 1998. Since the applicant resides in Belgium, he is entitled to an extension, on account of distance, of two days by virtue of Article 102(2) of the Rules of Procedure of the Court of First Instance and Article 1 of Annex II to the Rules of Procedure of the Court of Justice.

24 It follows that the period within which the present action should have been brought expired on 26 May 1998 unless, as the applicant claims, it was extended or suspended by the making of the application for legal aid.

28 In the present case the applicant has not put forward any arguments with a view to establishing that exceptional circumstances, capable of constituting either a case of unforeseeable circumstances or force majeure, prevented him from commencing the action within the time-limit prescribed by the Staff Regulations. As is evident from the order of 17 June 1998 dismissing the application for legal aid, the applicant did not provide evidence of lack of means and was in fact in a position, as he acknowledged in his application for legal aid, to secure, throughout the period prior to commencing the action, the services of a lawyer who, in addition, advised him in connection with the application for legal aid. It II - 3393

ORDER OF 24. 11. 1999 — CASE T-109/98

would have been possible for the applicant to bring an action before the expiry of the period prescribed for that purpose.

29 The order in Lallemand-Zeller ν Commission referred to above is not relevant in this context, given the differences between that case and the present case. The case giving rise to the order in Lallemand-Zeller concerned a well-founded application for legal aid made by an applicant who lacked means and did not have the assistance of a lawyer.

30 Since the application was not lodged at the Court Registry until 20 July 1998 and the proceedings should have been, and could have been, commenced by 26 May 1998 at the latest, the action is out of time.

31 The present action must, therefore, be dismissed as inadmissible.

hereby orders:

1. The action is dismissed as inadmissible.

2. The parties shall bear their own costs.

Luxembourg, 24 November 1999.

H. Jung R. Garcia-Valdecasas Registrar President

II - 3395