C-154/99

4 — See the decision taken by common agreement between the * Original language: English. governments of the Member States on 29 October 1993, OJ 1993 C 323, p. 1. 1 — Order of the Court of First Instance (Second Chamber) of 9 February 1999 in Case T-124/98 Politi v European 5 — In the case of temporary staff, this means the authority Training Foundation. referred to in the first paragraph of Article 6 of the Conditions of Employment, namely the person authorised 2 — C o u n c i l Regulation (EEC) N o 1360/90 of 7 May 1990- to conclude contracts engaging such staff. Although the establishing a European Training Foundation, OJ 1990 term 'appointing authority' is strictly applicable only in the L 131, p. 1. context of officials appointed under the Staff Regulations, I 3 — Anicle 14, as amended by Article 1(8) of Council Regula- shall none the less use that term hereinafter since it appears tion (EC) N o 2063/94 of 27 July 1994 amending Regula- convenient and is employed both by the parties and by the tion (EEC) N o 1360/90, OJ 1994 L 216, p. 9. Court of First Instance in the order under appeal.

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OPINION OF MR JACOBS — CASE C-154/99 P

four months from the date on which the The order under appeal complaint was lodged, failing which an implied decision rejecting the complaint is deemed to have been taken at the end of that period.

Facts

7. The facts of the case, as set out in paragraphs 1 to 9 of the order under 5. Under Article 91(2), an action may be appeal, may be summarised as follows. brought before the Court of First Instance 6 against any express or implied decision rejecting a complaint lodged in accordance with Article 90(2). Under Article 91(3), that action must be brought within three months from the date on which the deci- sion was notified or, in the case of an 8. Mr Politi (the applicant at first instance implied decision, the end of the four-month and appellant in the present proceedings), period referred to in Article 90(2). who resides in Turin, was employed by the Foundation under a temporary contract running from 1 December 1994 to 30 November 1997, with a possibility of renewal.

dation challenging the evaluation report administrative procedure. Time-limits for and the decision not to renew the contract. the lodging of complaints and Court A reply to that letter was sent, at the actions are a matter of public policy and Director's request, by the Foundation's are binding on the parties. The precise legal lawyer, dismissing the contentions made. categorisation of a letter or memorandum On 31 December 1997, the applicant's is a matter for the Court alone and not for lawyer submitted a 'complaint pursuant to the parties. A letter which does not Article 90(2) of the Staff Regulations', expressly request the withdrawal of a seeking the withdrawal of the evaluation decision but is clearly intended to achieve report and of the decision not to renew the an amicable settlement constitutes a com- contract. No reply was sent to that letter. plaint, as does a letter which clearly manifests the applicant's intention to chal- lenge a decision adversely affecting him.

would be lodged if satisfaction were not Arguments on appeal given, or by that in the letter accompanying the 'complaint' of 31 December 1997 that if the previous letter were to have been treated as a complaint, 'the present should 18. Mr Politi's first argument is that the be regarded as a withdrawal'. An applicant Court of First Instance was wrong to regard could not start time running again by a the letter of 5 November 1997 as a com- mere declaration of 'withdrawal'. plaint. That letter, as is clear from its terms, was written by his lawyer, who had not been authorised to lodge a complaint on his behalf at that stage. It further clearly indicated that he had not yet decided to lodge a complaint. By instructing the Foundation's lawyer to reply to Mr Politi's lawyer, moreover, the Director of the 16. It was therefore unnecessary to deter- Foundation clearly recognised the nature mine whether the letter of 18 November of the exchange since he could not have 1997 from the Foundation's lawyer con- delegated his powers as appointing author- stituted a reply to the complaint or not. If it ity to a lawyer who was not an official or did, the action should have been brought by other servant of the Communities. Nor, in 28 February 1998, taking account of the any event, had Mr Politi authorised his extension of the time-limit on account of lawyer to receive a reply to a complaint on distance; if it did not, there must have been his behalf. an implied decision rejecting the complaint on 5 March 1998, four months after the lodging of the complaint, and the action should have been brought within a period of three months plus 10 days' extension on account of distance, namely by 15 June 19. Secondly, Mr Politi asserts that the 1998. Court of First Instance wrongly classified the letter of 31 December 1997 as an 'additional memorandum' to a complaint, since it was the first and only complaint lodged.

25. As regards the alternative argument raised by Mr Politi in his reply, the Foundation contends that, whilst a staff member is entitled to withdraw a com- plaint, he may not replace it by another and 23. The Foundation considers that Mr thus trigger a new four-month time-limit Politi's first two grounds of appeal are for the appointing authority's reply. To do inadmissible in that they do not allege any so would run counter to the principle that breach of a rule of law; they do not the time-limits in Articles 90 and 91 of the challenge the Court of First Instance's legal Staff Regulations are mandatory as a characterisation of the facts but its apprai- matter of public policy, and would under- sal thereof, in particular as regards the mine legal certainty. It would require the assertion that Mr Politi's lawyer had no appointing authority to wait until the end authority to submit a complaint at that of the three-month period before drafting stage or receive any reply thereto. The first its reply, in case the original complaint ground of appeal, moreover, merely repro- should be withdrawn and a new one

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submitted within that period, and it would tional memorandum'. He specifically cites be incompatible with the aim of seeking an paragraphs 33 and 39 of the order under amicable solution. appeal, in which those findings are set out. The arguments he puts forward clearly convey his contention that the Court of First Instance misapplied (and thus infringed) Community law in making those findings. He seeks review by the Court of Justice of the legal characterisation of the facts by the Court of First Instance and the legal conclusions drawn from them.

repeats or reproduces verbatim the pleas in Fennelly's criticisms of excessive recourse law and arguments already submitted to to this type of objection to the admissibility the Court of First Instance is inadmissible. of an appeal. 9 However, that ruling has been applied above all in cases where the arguments put forward on appeal do not identify the contested aspects of the judgment or order under appeal but merely make an imprecise claim of illegality coupled with a blanket 31. I thus consider that the fact that Mr reference to, or reproduction of, the sub- Politi's first ground of appeal largely missions made at first instance, particularly repeats arguments put forward at first where the latter include submissions based instance should not, in the circumstances on factual allegations expressly dismissed of this case, constitute a bar to its admis- by the Court of First Instance. Such sibility. appeals, this Court has held, merely seek, in reality, reconsideration of the application at first instance and fall outside the juris- diction of the Court of Justice. 32. The Foundation objects to the admissi- bility of the third ground of appeal solely in that it does not identify the contested elements of the order under appeal. That objection, I consider, is unjustified; the contested elements are clearly the same as in the first and second grounds, namely, the characterisation of the letter of 5 Novem- ber 1997 as a complaint and of that of 31 December 1997 as an 'additional mem- orandum'.

was right in law to treat the letter of 35. It should be stressed that the Court's 5 November 1997 as a complaint and not power is not a device for dismissing unwel- the letter of 31 December 1997. Mr Politi come cases on grounds of inadmissibility; argues essentially that: (i) the letter of there must be some compelling reason for 5 November 1997 could not, in law, con- deeming a document to be something other stitute a complaint; (ii) the letter of than it was intended to be. The overriding 31 December 1997 could not constitute criterion must be that of legal certainty; the anything other than a complaint; and (iii) time-limits are mandatory and matters of by deciding the contrary, the Court of First public policy, and it must be possible to Instance illegally shortened the periods of determine the event which triggers them reflection laid down in the Staff Regula- with certainty. Thus, on the one hand, a tions. staff member may not submit a series of ambiguous documents and decide only later, in the light of subsequent procedural requirements, which of them should be regarded as triggering which time-limits; on the other hand, the Court should not, without good reason, reclassify documents which have been treated in a particular way by the parties and thereby redefine the procedural rights on the basis of which they have been acting.

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POLITI V EUROPEAN TRAINING FOUNDATION

'Complaint submitted under Article 90(2) Lacroix: 'Although it is true that this letter of the Staff Regulations of Officials of the did not expressly request the withdrawal of European Communities'. the decision in question, it is, however, quite apparent from it that the applicant was trying by this approach through offi- cial channels to obtain an amicable settle- ment of his complaints' and treated that letter as a complaint. It held in Thomik that a letter which 'clearly sought a decision reversing that [previously] conveyed' must be regarded as a complaint, and in Aldinger that letters which 'clearly express the applicants' wish to challenge the appoint- 37. As against those considerations, how- ing authority's decision' constituted com- ever, the letter of 5 November 1997 bears plaints. all the hallmarks of a complaint. It criti- cises, on specific legal grounds, both Mr Politi's final evaluation report and the decision not to renew his contract (both acts adversely affecting him), and it speci- fically seeks the withdrawal of that decision and the renewal of the contract. Those aspects of the letter are clearly set out and analysed in paragraphs 29 to 33 of the order under appeal, in which the Court of First Instance compares them with the characteristics of a complaint and draws the conclusion that the letter must be classified as such. It was, I consider, entirely justified in making that finding. It would be very difficult to establish that such a document did not constitute a complaint for the purposes of Articles 90 and 91 of the Staff Regulations.

40. The letter of 5 November 1997 con- stituted a complaint not only in respect of the decision not to renew Mr Politi's contract, but also in respect of his evalua- tion report. Although the request for the 42. The remaining grounds of appeal may withdrawal of the report was not explicit, it be dealt with briefly. The submission that was inherent in that letter, which alleges in the letter of 31 December 1997 was particular an inadequate statement of rea- wrongly categorised as an 'additional mem- sons, contrary to Article 190 of the EC orandum' is entirely dependent on the Treaty (now Article 253 EC), Article 25 of categorisation of the first letter. To the the Staff Regulations and Article 54 of the extent that the first letter was a complaint, Conditions of Employment. Since the the second could not be. The third ground report was by that stage a definitive of appeal and the alternative argument document, such a claim could only consti- raised by Mr Politi in his reply seem wholly tute a challenge to its validity. Moreover, it misconceived. They imply that the Staff is clear that the criticism of the evaluation Regulations allow officials a full period of report was entirely bound up with the three months within which not only to request to have the decision not to renew submit a complaint but also to modify, the contract withdrawn, and not a self- extend or withdraw and replace that com- standing claim; in view of the highly critical plaint, the four-month period for a reply assessment, it could not have been credibly commencing only once the official has argued that Mr Politi's contract should be decided on the finalised form. That is renewed as long as the report stood. clearly contrary to the principle of legal certainty, to the terms of Articles 90 and 91 of the Staff Regulations and to consistent practice. A complaint may be expanded upon during the course of the pre-litigation procedure 13 with the result that pleas raised in 'additional memoranda' may be raised also in a subsequent Court action, but that can have no effect on the time-limit triggered by the submission of the com- plaint itself. 41. In view of those considerations, I take the view that the Court of First Instance was justified in considering that Mr Politi 13 — See Case T-159/95 Dricot and Others v Commission had submitted a complaint on 5 November [1997] ECR-SC II-1035, paragraphs 22 to 25 of the 1997 and could not reopen the period for judgment, cited by Mr Politi and in the order under appeal.

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