Corte di giustizia UE/2010

62010TO0073_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA]73/10 P, [OSCURATO:PERSONA] brought against the order of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 15 December 2009 in [OSCURATO:PERSONA]8/09 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] ECR-SC I-A-1-509 and II-A-1-2763, seeking, inter alia, to have that order set aside, [OSCURATO:PERSONA], residing in Saarwellingen (Germany), represented by D. [OSCURATO:PERSONA]-Addae-Mensah, lawyer, appellant, the other party to the proceedings being [OSCURATO:PERSONA], represented by J. Currall and B. Eggers, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed, at the time of the deliberation, of M. Jaeger, President, J. Azizi and I. Wiszniewska-Białecka (Rapporteur), Judges, Registrar: E. Coulon, makes the following [OSCURATO:PERSONA] 1. By his appeal brought pursuant to [OSCURATO:PERSONA] 9 of Annex I to the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], the appellant, [OSCURATO:PERSONA], asks the [OSCURATO:PERSONA], inter alia, to set aside the order of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 15 December 2009 in [OSCURATO:PERSONA]8/09 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2009] ECR-SC I-A-1-509 and II-A-1-2763 (‘the contested order’), by which it dismissed as inadmissible, being out of time, the action seeking, inter alia, annulment of the decision contained in a letter of 21 October 2008 (‘the contested decision’), by which the [OSCURATO:PERSONA] (EPSO) dismissed his complaint against the decision of EPSO of 25 April 2008 informing him that the marks which he had obtained in the competence test held in connection with the selection procedure EPSO/CAST27/4/7 were not sufficient for him to be included in the database of eligible candidates. The procedure at first instance and the contested order 2. By application lodged at the [OSCURATO:PERSONA] on 9 July 2009, registered as F-8/09, [OSCURATO:PERSONA] sought, inter alia, annulment of the contested decision. 3. By separate document lodged at the [OSCURATO:PERSONA] on 1 September 2009, the [OSCURATO:PERSONA] raised an objection of inadmissibility to the action under [OSCURATO:PERSONA] 78 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] submitted that the action was brought out of time and that the appellant had no interest in bringing proceedings. It contended that the action should be dismissed as inadmissible and that the appellant should be ordered to pay the costs. 4. On 6 October 2009, the appellant submitted his observations on the objection of inadmissibility raised by the [OSCURATO:PERSONA], requesting the [OSCURATO:PERSONA] to dismiss it. 5. By the contested order, the [OSCURATO:PERSONA] dismissed the action as inadmissible and ordered the appellant to pay the costs. 6. [OSCURATO:PERSONA] gave the following reasons for that dismissal: ‘5 It is common ground that the applicant was informed of the contested decision on 29 October 2008. 6 Consequently, under both [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA], which provides that appeals against an act adversely affecting an official are to be filed within three months of the date of notification of that act, and [OSCURATO:PERSONA] 100(3) of the [OSCURATO:PERSONA] of Procedure, which provides that that time is to be extended “on account of distance by a single period of 10 days”, the time available to the applicant for bringing an action against the contested decision expired on 9 February 2009. 7 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 3 February 2009 …, the applicant applied for legal aid. 8 Thus, … that legal aid application was in fact made within “the period prescribed for the bringing of the action”, within the meaning of [OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure, so that under that provision the time-limit was suspended until the date of notification of the order making a decision on that application. 9 However, the [OSCURATO:PERSONA] gave a ruling on the legal aid application by order of 12 May 2009 in [OSCURATO:PERSONA]8/09 AJ [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (not published in the ECR), by which the applicant was granted legal aid[. T]he applicant was notified of that order on 19 May 2009. 10 The time-limit for bringing an action therefore recommenced from that date and expired six days later, on 25 May 2009 … 11 However, the action was not brought until 9 July 2009 … and is therefore out of time … 12 None of the arguments put forward by the applicant … is capable of invalidating that conclusion. 13 In the first place, the applicant argues that he made an initial legal aid application on 23 January 2009, using the appropriate on-line application form, before he made the application which was registered by the [OSCURATO:PERSONA] on 3 February 2009. He claimed that at the time that on-line form was sent, as there were points that were unclear in the documents published on the [OSCURATO:PERSONA]’s website ([OSCURATO:PERSONA], [OSCURATO:PERSONA] of Procedure, Check-list: [OSCURATO:PERSONA]), he sent the [OSCURATO:PERSONA] an email asking whether it was necessary for the original of his legal aid application to be lodged within 10 days of sending the on-line form. However, he did not receive clear notice from the [OSCURATO:PERSONA] that he was required to lodge the original of his legal aid application within that time until 2 February 2009. As a result of the [OSCURATO:PERSONA]’s delay in replying to his email he had a time-limit of only one day, expiring on 3 February 2009, for the original of his application to reach the [OSCURATO:PERSONA]. Since it was impossible to comply with that time-limit, acting on the advice of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], he sent another on-line application form on 3 February 2009. … 15 However, the applicant himself states that he did have access to the [OSCURATO:PERSONA] of Procedure. It is clear from the provisions of [OSCURATO:PERSONA] 34 of those rules, which govern the lodging of pleadings with the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], and in particular [OSCURATO:PERSONA] 34(6), that a pleading which is received at the [OSCURATO:PERSONA] by any technical means of communication is taken into consideration for the purposes of compliance with the time-limits for taking steps in proceedings only where the signed original of the pleading is lodged no later than 10 days after the copy of the original was received. Moreover, the Guide for [OSCURATO:PERSONA], which forms an integral part of the on-line legal aid application form, and which, like that form, is accessible on the [OSCURATO:PERSONA]’s website, mentions the existence of that rule. The applicant therefore has no grounds for complaining about a lack of information in that regard or the lack of clarity of the applicable texts. 16 Furthermore, although it is true that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] did not reply to the applicant’s email until 2 February 2009, this cannot be regarded as unreasonable in view of the large number of cases pending before the [OSCURATO:PERSONA]. Moreover, in the circumstances described in the preceding paragraph, the [OSCURATO:PERSONA] did not fail in its task of assisting the parties and their representatives in all their exchanges with the [OSCURATO:PERSONA]. In fact, the [OSCURATO:PERSONA]’s reply arrived at a time when it was still possible for the applicant to rectify the legal aid application. The applicant was able, at the [OSCURATO:PERSONA]’s request, to send another legal aid application on 3 February 2009 using the on-line form, and to transmit the original of his application to the [OSCURATO:PERSONA] by 6 February 2009. Diligence on the part of the [OSCURATO:PERSONA] thus finally enabled the applicant to obtain legal aid. 17 Lastly and most importantly, even if the [OSCURATO:PERSONA] were to accept that the legal aid application was submitted in a valid manner on 23 January 2009, the time-limit laid down for bringing the action began to run again from 19 May 2009, expiring on 8 June 2009. The action was not, however, brought until 9 July 2009. 18 In the second place, the applicant asserts that he was not made aware by the [OSCURATO:PERSONA] of any time-limit for filing the application initiating his action following the adoption of a decision on the legal aid application. On the contrary, so he claims, he was even informed, incorrectly, during a telephone conversation with an official from the [OSCURATO:PERSONA] which took place on 27 April 2009, that in this case “there [was] no time-limit running yet”. 19 However, the [OSCURATO:PERSONA] has not been able to establish that an official from the [OSCURATO:PERSONA] uttered the words reported by the applicant. 20 In any event, on this point too the relevant provisions of the [OSCURATO:PERSONA] of Procedure are unambiguous. It is clear from [OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure, a provision of which the applicant’s lawyer must have been aware when he took on the applicant’s case, that submitting a legal aid application merely suspends the period prescribed for the bringing of the action until the date of notification of the order ruling on that application. The fact that the remaining period following the order granting legal aid was too short to enable the applicant to prepare his case is merely the consequence of those provisions and of the fact that the applicant did not file his legal aid application in accordance with the requirements of the [OSCURATO:PERSONA] of Procedure until 3 February 2009, shortly before the time-limit expired. Furthermore, the applicant was assisted by a lawyer after his legal aid application was accepted. That lawyer could not consider himself to be bound by information allegedly given to his client, purely by word of mouth, on 27 April 2009, before he began to represent him. If the lawyer had done so, he could not be regarded as having shown all the diligence required of a normally well-informed professional. 21 It has not therefore been established that the late filing of the application initiating the action stems from an excusable error, a concept which must be interpreted in a restrictive manner and may concern only exceptional circumstances in which, in particular, the conduct of an institution has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person ([OSCURATO:PERSONA]195/91 P Bayer v [OSCURATO:PERSONA] [1994] ECR I-5619, paragraph 26, and [OSCURATO:PERSONA]193/01 P Pitsiorlas v Council and ECB [2003] ECR I-4837, paragraph 24).’ The appeal Procedure and forms of order sought by the parties 7. By a document lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 17 February 2010, the appellant brought the present appeal. On 8 June 2010, the [OSCURATO:PERSONA] lodged its response. 8. By document lodged at the [OSCURATO:PERSONA] on 26 March 2010, the appellant applied for legal aid pursuant to [OSCURATO:PERSONA] 95(1) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA]. 9. The appellant claims that the [OSCURATO:PERSONA] should: ¾ set aside the contested order; ¾ annul the contested decision; ¾ oblige the [OSCURATO:PERSONA] and their specialised services, in particular EPSO, to consider the answers given by the appellant to questions 9, 30 and 32 of the competence test of 14 December 2007 to be correct; ¾ in the alternative, allow the appellant to re-sit the competence test; ¾ in the alternative to the second, third and fourth heads of claim, refer the present case back to the [OSCURATO:PERSONA]; ¾ order the [OSCURATO:PERSONA] to pay the costs of the present proceedings and of the proceedings before the [OSCURATO:PERSONA]; ¾ grant the appellant legal aid for the present appeal and order that [OSCURATO:PERSONA]Addae-Mensah should represent his interests in the present proceedings. 10. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: ¾ dismiss the appeal; ¾ order the appellant to pay the costs. Law 11. [OSCURATO:PERSONA] 145 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a report from the Judge-Rapporteur, by reasoned order dismiss the appeal in whole or in part. In the present case, although the appellant has submitted a request for a hearing, the [OSCURATO:PERSONA] considers that it has sufficient information in the file before it and decides, pursuant to that article, to give a decision on the action without taking further steps in the proceedings. The first, second, third, fourth and fifth heads of claim 12. In support of his first head of claim, seeking to have the contested order set aside, the appellant raises, in essence, a single plea in law, alleging that the [OSCURATO:PERSONA] should have recognised that there was an excusable error which rendered his action at first instance admissible. – Arguments of the parties 13. The appellant submits that there was much confusion concerning the time-limit for bringing the action at first instance. The resulting uncertainty as to the legal situation required the [OSCURATO:PERSONA] to give the appellant and/or his lawyer clear information regarding that time-limit. [OSCURATO:PERSONA] did not give such clear information. Accordingly, the [OSCURATO:PERSONA] should have held that there was an excusable error rendering the action at first instance admissible. 14. Confusion arose initially because of the application of different provisions governing the time-limit for bringing the action, one in the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] and the other in the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). It is true that [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA] provides that appeals are to be filed within three months. However, on the one hand, [OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] states unambiguously that the introduction of an application for legal ai d is to suspend the period prescribed for the bringing of the action. On the other, [OSCURATO:PERSONA] 33(2) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] provides that the President is to fix the dates or time-limits by which the pleadings must be lodged. The appellant takes the view that [OSCURATO:PERSONA] 33 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] constitutes a lex specialis in relation to [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA]. 15. The appellant states that, under [OSCURATO:PERSONA] 33(2) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], the President is to fix the time-limits by which the pleadings referred to in [OSCURATO:PERSONA] 33(1) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] must be lodged, including the time-limit for lodging the application. In the present case, the President of the [OSCURATO:PERSONA] did not fix any time-limit for lodging the application at first instance, which, in the appellant’s view, was necessary in view of the ambiguity of the applicable rules. 16. Further confusion resulted, according to the appellant, from the information given to his lawyer by the [OSCURATO:PERSONA]. During a telephone conversation with an official at the [OSCURATO:PERSONA] on 27 April 2009, his lawyer was informed that no time-limit was running yet in the present case. The assertion in the contested order that that conversation did not take place is incorrect. Furthermore, in paragraph 20 of the contested order, the [OSCURATO:PERSONA] wrongly considered that the information had been given to the appellant and not to his lawyer. Having been informed by the [OSCURATO:PERSONA] that no time-limit was running as yet, his lawyer was not required immediately to check the time-limit. The appellant adds that, even if his lawyer had been aware of the true time-limit, despite the ambiguity of the texts applicable, the obviously incorrect information given by the [OSCURATO:PERSONA] warrants a finding of excusable error. 17. Yet further confusion resulted from the order granting the appellant legal aid and declaring his action admissible. The appellant submits that the fact that legal aid was granted to him by the order of 12 May 2009 ‘confirmed the admissibility … of the application filed or to [be filed], included the time-limit’. Were that not the case, [OSCURATO:PERSONA] 6 of the [OSCURATO:PERSONA] on [OSCURATO:PERSONA] and [OSCURATO:PERSONA], signed in Rome on 4 November 1950, and the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), would have required that he be informed by the [OSCURATO:PERSONA] of the actual time-limit by which the action was to be brought. [OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] would be inapplicable and would require the President of the [OSCURATO:PERSONA] to fix the time-limit for bringing the action. 18. The appellant adds that the time-limit of six days within which he had to lodge the application at first instance after notification of the order ruling on the application for legal aid was too short. [OSCURATO:PERSONA] 6 of the [OSCURATO:PERSONA] on [OSCURATO:PERSONA] and [OSCURATO:PERSONA], which requires a fair trial, means that a lawyer must have a reasonable period in which to work on the case after legal aid has been granted. The fact that the application for legal aid was lodged only shortly before the expiry of the time-limit for bringing the action cannot hamper the right to sufficient time in which to prepare the application. 19. [OSCURATO:PERSONA] argues that the appeal is inadmissible at least in part and, in any event, manifestly unfounded. – Findings of the [OSCURATO:PERSONA] 20. In the contested order, the [OSCURATO:PERSONA] held that, pursuant to [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] 100(3) and [OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], the time-limit for bringing the action at first instance had expired on 25 May 2009. Accordingly, it held that the action brought by the appellant on 9 July 2009 was out of time, and that the appellant had not shown that the late filing of the application was the result of an excusable error and dismissed the action as inadmissible. 21. The appellant complains that the [OSCURATO:PERSONA] did not recognise that an excusable error had been made. 22. With regard to the appellant’s first argument that there was confusion as a result of the application of different provisions concerning the time-limit for bringing the action at first instance, it must be borne in mind that [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA] provides that any action regarding the legality of an act adversely affecting a person covered by the [OSCURATO:PERSONA] must be filed within three months. [OSCURATO:PERSONA] 33(2) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], which provides that the President is to fix dates or time-limits for lodging pleadings, does not govern the time-limits for lodging actions laid down by the legislature and therefore does not govern the time-limit for bringing the action, which is fixed by the [OSCURATO:PERSONA]. The appellant cannot therefore claim that there was confusion owing to the application of different provisions concerning the time-limit for bringing the action. Accordingly, the first argument is clearly unfounded. 23. With regard to the appellant’s second argument, that there was confusion as a result of the incorrect information given to his lawyer by the [OSCURATO:PERSONA] during a telephone conversation on 27 April 2009, it must be recalled that the [OSCURATO:PERSONA] held as follows: ‘That lawyer could not consider himself to be bound by information allegedly given to his client, purely by word of mouth, on 27 April 2009, before he began to represent him. If the lawyer had done so, he could not be regarded as having shown all the diligence required of a normally well-informed professional.’ 24. In that regard, it is appropriate to note that, in accordance with settled case-law, the first instance court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. The appraisal of the facts by the first instance court does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the [OSCURATO:PERSONA] (see [OSCURATO:PERSONA]404/06 P ETF v Landgren [2009] [OSCURATO:PERSONA]-2841, paragraphs 191 and 192 and the case-law cited). 25. The view must be taken that the reasoning of the [OSCURATO:PERSONA] as to whether the telephone conversation actually took place on 27 April 2009, on the identity of the persons involved in that conversation and on the information given by the [OSCURATO:PERSONA] is a finding of fact which lies within the sole jurisdiction of the [OSCURATO:PERSONA] and may not be examined in an appeal, unless there is material inaccuracy. The appellant has not established the existence of any such material inaccuracy. Furthermore, the appellant’s argument that it was his lawyer and not he himself who received that information from the [OSCURATO:PERSONA] is irrelevant. As the [OSCURATO:PERSONA] found, a lawyer relying on purely oral information, even if given to him by the [OSCURATO:PERSONA], cannot be regarded as having shown all the diligence required of a normally well-informed professional. It follows that the second argument is clearly inadmissible. 26. With regard to the appellant’s third argument, that there was confusion caused by the order granting him legal aid, it must be pointed out that there is no connection between an application for legal aid and the main action such that the order ruling on that application can prejudge the admissibility of the action, since the application does not have the same subject-matter as the action and can even be filed before the action, in accordance with [OSCURATO:PERSONA] 96(1) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] (see, by analogy, [OSCURATO:PERSONA]37/93 Stagakis v Parliament [1994] ECR-SC I-A-137 and II-451, paragraph 23). In the present case, the appellant was not entitled to deduce from the order granting him legal aid that his main action, which he had not yet even brought, was admissible. Accordingly, the third argument is clearly inadmissible. 27. Furthermore, with regard to the argument that the period of 6 days which the appellant had after notification of the order ruling on the application for legal aid was too short and, consequently, contrary to the right to a fair trial, it must be borne in mind that, pursuant to [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] 100(3) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], the appellant had a period of three months, extended on account of distance by a single period of 10 days in which to bring his action. In accordance with [OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], the time-limit for bringing his action was suspended until the date of notification of the order making a decision on the application for legal aid filed by the appellant before bringing his action. As the [OSCURATO:PERSONA] rightly held in paragraph 20 of the contested order, ‘[t]he fact that the remaining period following the order granting legal aid was too short to enable the applicant to prepare his case is merely the consequence of [[OSCURATO:PERSONA] 97(4) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA]] and of the fact that the applicant did not file his legal aid application in accordance with the requirements of the [OSCURATO:PERSONA] of Procedure until 3 February 2009, shortly before the time-limit expired’. In those circumstances, the appellant cannot allege infringement of the right to a fair trial. Accordingly, that argument is clearly unfounded. 28. It follows from the foregoing that the single plea in law must be rejected in part as clearly inadmissible and in part as clearly unfounded. Accordingly, the first head of claim must be rejected. Since the contested order has not been set aside, the second, third, fourth and fifth heads of claim must also be rejected. The seventh head of claim 29. By his seventh head of claim, the appellant requests the [OSCURATO:PERSONA] to grant him legal aid and to designate [OSCURATO:PERSONA]Addae-Mensah as the lawyer representing him in the present proceedings. It follows from [OSCURATO:PERSONA] 95(2) and (3) of the [OSCURATO:PERSONA] of Procedure and from Paragraphs 88 and 89 of the [OSCURATO:PERSONA] to parties that the application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s economic situation and that the use of a form in making the application for legal aid is compulsory. In the present case, it must be held that the appellant has not supplied any information in support of this head of claim and that he submitted an application for legal aid in the prescribed form, after lodging the present appeal, registered as T-73/10 P-AJ. Accordingly, the seventh head of claim must be rejected as clearly inadmissible. 30. It follows from all the foregoing that the appeal must be dismissed in its entirety in part as clearly inadmissible and in part as clearly unfounded. Costs 31. In accordance with the first paragraph of [OSCURATO:PERSONA] 148 of the [OSCURATO:PERSONA] of Procedure, the [OSCURATO:PERSONA] is to make a decision as to costs. 32. [OSCURATO:PERSONA] the first subparagraph of [OSCURATO:PERSONA] 87(2) of those [OSCURATO:PERSONA], applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 33. Since the appellant has been unsuccessful and the [OSCURATO:PERSONA] has applied for costs, he is to bear his own costs and pay those incurred by the [OSCURATO:PERSONA] in the present proceedings. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] shall bear his own costs and shall pay those incurred by the [OSCURATO:PERSONA] in the present proceedings. Luxembourg, 2 December 2010.