Fons Iuris
Torna alla ricerca
Corte di giustizia UEsentenza

Corte di giustizia UE n. 1239/2012

ECLI:EU:F:2012:161
Testo integrale del provvedimento

Testo integrale del provvedimento

62011FO0122_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] F‑122/11,

ACTION brought under [OSCURATO:PERSONA] 270 TFEU, applicable to the EAEC Treaty pursuant to [OSCURATO:PERSONA] 106a thereof, Dragos-[OSCURATO:PERSONA], official of the [OSCURATO:PERSONA], residing in Brussels (Belgium), represented by R.-C. Radu, lawyer, applicant, v

[OSCURATO:PERSONA],

defendant,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

composed of M. I. Rofes i Pujol (Rapporteur), President, I. Boruta and K. Bradley, Judges, Registrar: W. Hakenberg, makes the following

[OSCURATO:PERSONA]

1. By application received at the [OSCURATO:PERSONA] on 17 November 2011, [OSCURATO:PERSONA] brought the present action for annulment of the decision of the [OSCURATO:PERSONA] of 18 April 2011 by which he was refused the payment of the daily allowance provided for in [OSCURATO:PERSONA] 10 of Annex VII to the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’).

Legal context

2. [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA]: ‘Appeals under paragraph 2 shall be filed within three months. The period shall start to run: – on the date of notification of the decision taken in response to the complaint; – …’

3. [OSCURATO:PERSONA] 10 of Annex VII to the [OSCURATO:PERSONA], as amended by [OSCURATO:PERSONA] (EU) No 1239/2010 of 20 December 2010 adjusting with effect from 1 July 2010 the remuneration and pensions of officials and other servants of the [OSCURATO:PERSONA] and the correction coefficients applied thereto (OJ 2010 L 338, p. 1), provides as follows: ‘1.

Where an official furnishes evidence that a change in the place of residence is required in order to comply with [OSCURATO:PERSONA] 20 of the [OSCURATO:PERSONA], such official shall be entitled for a period specified in paragraph 2 of this [OSCURATO:PERSONA] to a subsistence allowance per calendar day as follows: Official entitled to receive household allowance: EUR [39,17].

Official not entitled to the household allowance: EUR [31,58].

The above scale shall be reviewed each time remunerations are revised pursuant to [OSCURATO:PERSONA] 65 of the [OSCURATO:PERSONA].

2. The period in respect of which the daily subsistence allowance is granted shall be as follows: (a) in the case of an official who is not entitled to the household allowance: 120 days; (b) in the case of an official who is entitled to the household allowance: 180 days or, if the official is a probationer, the period of probation plus one month.

In cases where a husband and wife who are officials or other servants of the [OSCURATO:PERSONA] [[OSCURATO:PERSONA]] are both entitled to the basic subsistence allowance, the period in respect of which it is granted as laid down in (b) shall apply to the person whose basic salary is the higher.

The period laid down in (a) shall apply to the other person.

In no case shall the daily subsistence allowance be granted beyond the date on which the official removes in order to satisfy the requirements of [OSCURATO:PERSONA] 20 of the [OSCURATO:PERSONA].’

4. [OSCURATO:PERSONA] 100 of the Rules of Procedure: ‘…

2. If [a] period [granted for matters of procedure] would otherwise end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day. …

3. The prescribed time-limits shall be extended on account of distance by a single period of 10 days.’ Background to the dispute

5. The applicant was appointed as a probationary official in grade AST 1 at the [OSCURATO:PERSONA] by a decision of 14 February 2011 and took up his duties in Brussels on 16 February 2011. Until 30 November 2010, he worked in Bucharest (Romania).

6. Since 1 February 2010, the applicant’s spouse has been working in the same institution as a contractual agent. She completed a probationary period of nine months, during which time she received the daily allowance.

7. Since 1 February 2011, the applicant and his spouse have been renting an apartment in Brussels.

8. The applicant’s remuneration was determined by a decision of the [OSCURATO:PERSONA] of 18 April 2011. In that decision, it is stated that he is not entitled to the daily allowance.

9. The applicant contested that decision by an appeal filed by e-mail of 6 May 2011, in which he applied for payment to him of a daily allowance for 120 days in accordance with [OSCURATO:PERSONA] 10(2)(a) of Annex VII to the [OSCURATO:PERSONA].

The appeal was dismissed by a decision of the [OSCURATO:PERSONA] of 4 August 2011, which the applicant received on the following day.

Form of order sought

10. The applicant claims that the Court should: – annul the decision of 18 April 2011 in so far as it refuses him payment of the daily allowance provided for in [OSCURATO:PERSONA] 10(1) of Annex VII to the [OSCURATO:PERSONA]; – rule that the [OSCURATO:PERSONA] must pay him the daily allowance with interest from the date on which that allowance ought to have been paid to him; – order the [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] decision to give its ruling by way of reasoned order

11. [OSCURATO:PERSONA] 76 of the Rules of Procedure of the [OSCURATO:PERSONA], where an action is, in whole or in part, manifestly inadmissible, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 order of 25 April 2012 in [OSCURATO:PERSONA] F‑108/11 Oprea v [OSCURATO:PERSONA] , paragraph 12, and the case-law cited).

13. In the present case, the [OSCURATO:PERSONA] considers itself to be sufficiently informed by the documents produced by the applicant and decides, pursuant to the abovementioned provision and even before the application has been served on the defendant, to give its ruling by way of reasoned order, without taking further steps in the proceedings (order of 29 June 2010 in [OSCURATO:PERSONA]11/10 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraphs 26 and 27).

Law

14. It must be borne in mind that, under [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA], an action must be filed ‘within three months, [which] period is to begin on the date of notification of the decision taken in response to the complaint’. [OSCURATO:PERSONA] 100(3) of the Rules of Procedure, ‘the prescribed time-limits are to be extended on account of distance by a single period of 10 days’.

Furthermore, in accordance with settled case-law, the periods for lodging complaints and bringing actions referred to in Articles 90 and 91 of the [OSCURATO:PERSONA] are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with (judgment of 29 June 2000 in [OSCURATO:PERSONA] C‑154/99 P Politi v Fondation européenne pour la formation , paragraph 15; order of 15 January 2009 in [OSCURATO:PERSONA] T‑306/08 P Braun-Neumann v Parliament , paragraph 36; judgment of 12 May 2010 in [OSCURATO:PERSONA] F‑13/09 [OSCURATO:PERSONA] v Parliament , paragraph 18).

15. It is apparent from the application that the decision of 4 August 2011 by which the [OSCURATO:PERSONA] rejected the claim against the decision of 18 April 2011 establishing the applicant’s remuneration was served on the applicant on 5 August 2011, so that the period of three months increased by 10 days within which to bring the action expired on Tuesday, 15 November 2011.

Consequently the action, brought only on 17 November 2011, must be dismissed as manifestly inadmissible because filed out of time.

Costs

16. [OSCURATO:PERSONA] 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. [OSCURATO:PERSONA] 89(3) of those Rules, if costs are not applied for, the parties are to bear their own costs.

17. Since this order has been made before the defendant has been served with the application and before it could have incurred any costs, it is appropriate to order, pursuant to [OSCURATO:PERSONA] 89(3) of the Rules of Procedure, that the applicant must bear his own costs. [OSCURATO:PERSONA] part On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby orders:

1. The action is dismissed.

2. [OSCURATO:PERSONA] shall bear his own costs. Luxembourg, 23 November 2012.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62011FO0122_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] F‑122/11, ACTION brought under [OSCURATO:PERSONA] 270 TFEU, applicable to the EAEC Treaty pursuant to [OSCURATO:PERSONA] 106a thereof, Dragos-[OSCURATO:PERSONA], official of the [OSCURATO:PERSONA], residing in Brussels (Belgium), represented by R.-C. Radu, lawyer, applicant, v [OSCURATO:PERSONA], defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) composed of M. I. Rofes i Pujol (Rapporteur), President, I. Boruta and K. Bradley, Judges, Registrar: W. Hakenberg, makes the following [OSCURATO:PERSONA] 1. By application received at the [OSCURATO:PERSONA] on 17 November 2011, [OSCURATO:PERSONA] brought the present action for annulment of the decision of the [OSCURATO:PERSONA] of 18 April 2011 by which he was refused the payment of the daily allowance provided for in [OSCURATO:PERSONA] 10 of Annex VII to the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). Legal context 2. [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA]: ‘Appeals under paragraph 2 shall be filed within three months. The period shall start to run: – on the date of notification of the decision taken in response to the complaint; – …’ 3. [OSCURATO:PERSONA] 10 of Annex VII to the [OSCURATO:PERSONA], as amended by [OSCURATO:PERSONA] (EU) No 1239/2010 of 20 December 2010 adjusting with effect from 1 July 2010 the remuneration and pensions of officials and other servants of the [OSCURATO:PERSONA] and the correction coefficients applied thereto (OJ 2010 L 338, p. 1), provides as follows: ‘1. Where an official furnishes evidence that a change in the place of residence is required in order to comply with [OSCURATO:PERSONA] 20 of the [OSCURATO:PERSONA], such official shall be entitled for a period specified in paragraph 2 of this [OSCURATO:PERSONA] to a subsistence allowance per calendar day as follows: Official entitled to receive household allowance: EUR [39,17]. Official not entitled to the household allowance: EUR [31,58]. The above scale shall be reviewed each time remunerations are revised pursuant to [OSCURATO:PERSONA] 65 of the [OSCURATO:PERSONA]. 2. The period in respect of which the daily subsistence allowance is granted shall be as follows: (a) in the case of an official who is not entitled to the household allowance: 120 days; (b) in the case of an official who is entitled to the household allowance: 180 days or, if the official is a probationer, the period of probation plus one month. In cases where a husband and wife who are officials or other servants of the [OSCURATO:PERSONA] [[OSCURATO:PERSONA]] are both entitled to the basic subsistence allowance, the period in respect of which it is granted as laid down in (b) shall apply to the person whose basic salary is the higher. The period laid down in (a) shall apply to the other person. In no case shall the daily subsistence allowance be granted beyond the date on which the official removes in order to satisfy the requirements of [OSCURATO:PERSONA] 20 of the [OSCURATO:PERSONA].’ 4. [OSCURATO:PERSONA] 100 of the Rules of Procedure: ‘… 2. If [a] period [granted for matters of procedure] would otherwise end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day. … 3. The prescribed time-limits shall be extended on account of distance by a single period of 10 days.’ Background to the dispute 5. The applicant was appointed as a probationary official in grade AST 1 at the [OSCURATO:PERSONA] by a decision of 14 February 2011 and took up his duties in Brussels on 16 February 2011. Until 30 November 2010, he worked in Bucharest (Romania). 6. Since 1 February 2010, the applicant’s spouse has been working in the same institution as a contractual agent. She completed a probationary period of nine months, during which time she received the daily allowance. 7. Since 1 February 2011, the applicant and his spouse have been renting an apartment in Brussels. 8. The applicant’s remuneration was determined by a decision of the [OSCURATO:PERSONA] of 18 April 2011. In that decision, it is stated that he is not entitled to the daily allowance. 9. The applicant contested that decision by an appeal filed by e-mail of 6 May 2011, in which he applied for payment to him of a daily allowance for 120 days in accordance with [OSCURATO:PERSONA] 10(2)(a) of Annex VII to the [OSCURATO:PERSONA]. The appeal was dismissed by a decision of the [OSCURATO:PERSONA] of 4 August 2011, which the applicant received on the following day. Form of order sought 10. The applicant claims that the Court should: – annul the decision of 18 April 2011 in so far as it refuses him payment of the daily allowance provided for in [OSCURATO:PERSONA] 10(1) of Annex VII to the [OSCURATO:PERSONA]; – rule that the [OSCURATO:PERSONA] must pay him the daily allowance with interest from the date on which that allowance ought to have been paid to him; – order the [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] decision to give its ruling by way of reasoned order 11. [OSCURATO:PERSONA] 76 of the Rules of Procedure of the [OSCURATO:PERSONA], where an action is, in whole or in part, manifestly inadmissible, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 order of 25 April 2012 in [OSCURATO:PERSONA] F‑108/11 Oprea v [OSCURATO:PERSONA] , paragraph 12, and the case-law cited). 13. In the present case, the [OSCURATO:PERSONA] considers itself to be sufficiently informed by the documents produced by the applicant and decides, pursuant to the abovementioned provision and even before the application has been served on the defendant, to give its ruling by way of reasoned order, without taking further steps in the proceedings (order of 29 June 2010 in [OSCURATO:PERSONA]11/10 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraphs 26 and 27). Law 14. It must be borne in mind that, under [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA], an action must be filed ‘within three months, [which] period is to begin on the date of notification of the decision taken in response to the complaint’. [OSCURATO:PERSONA] 100(3) of the Rules of Procedure, ‘the prescribed time-limits are to be extended on account of distance by a single period of 10 days’. Furthermore, in accordance with settled case-law, the periods for lodging complaints and bringing actions referred to in Articles 90 and 91 of the [OSCURATO:PERSONA] are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with (judgment of 29 June 2000 in [OSCURATO:PERSONA] C‑154/99 P Politi v Fondation européenne pour la formation , paragraph 15; order of 15 January 2009 in [OSCURATO:PERSONA] T‑306/08 P Braun-Neumann v Parliament , paragraph 36; judgment of 12 May 2010 in [OSCURATO:PERSONA] F‑13/09 [OSCURATO:PERSONA] v Parliament , paragraph 18). 15. It is apparent from the application that the decision of 4 August 2011 by which the [OSCURATO:PERSONA] rejected the claim against the decision of 18 April 2011 establishing the applicant’s remuneration was served on the applicant on 5 August 2011, so that the period of three months increased by 10 days within which to bring the action expired on Tuesday, 15 November 2011. Consequently the action, brought only on 17 November 2011, must be dismissed as manifestly inadmissible because filed out of time. Costs 16. [OSCURATO:PERSONA] 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. [OSCURATO:PERSONA] 89(3) of those Rules, if costs are not applied for, the parties are to bear their own costs. 17. Since this order has been made before the defendant has been served with the application and before it could have incurred any costs, it is appropriate to order, pursuant to [OSCURATO:PERSONA] 89(3) of the Rules of Procedure, that the applicant must bear his own costs. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed. 2. [OSCURATO:PERSONA] shall bear his own costs. Luxembourg, 23 November 2012.