Oscar Orlando Arango Jaramillo, v European Investment Bank (EIB) [2013] EUECJ T-234/11 (09 July 2013)

Judgment The present proceedings constitute the sequel to the judgment of the Court of Justice (Fourth Chamber) of 28 February 2013 in Case C-334/12 RX-II Arango Jaramillo and Others v EIB [2013] ECR I-0000, by which that Court, having declared that the judgment of the General Court (Appeal Chamber) of 19 June 2012 in Case T-234/11 P Arango Jaramillo and Others v EIB [2012] ECR-SC I-B-1-0000 and II-B-1-0000 (‘the judgment under review’), on an appeal against the order of the European Union Civil Service Tribunal (First Chamber) of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB [2011] ECR-SC I-A-1-0000 and II-A-1-0000 (‘the order under appeal’), affected the consistency of European Union law, set aside the judgment under review and referred the case back to the General Court. Facts giving rise to the dispute It follows from paragraphs 2 to 4 of the order under appeal, cited in paragraph 1 above, that Mr Oscar Orlando Arango Jaramillo and the 34 other appellants whose names are set out in the annex are members of staff of the European Investment Bank (EIB). Since 1 January 2007, the salary statements of the members of staff of the EIB are no longer produced in their traditional paper format but in electronic format. The salary statements are now entered in the EIB’s Peoplesoft computer system each month and can thus be accessed by every member of staff from his office computer. On Saturday 13 February 2010, the salary statements for February 2010 were entered in the Peoplesoft computer system. Those statements, as compared with the statements for January 2010, indicated an increase in the rate of contributions to the pension scheme, an increase resulting from decisions taken by the EIB as part of the reform of its staff pension scheme. Procedure at first instance and order under appeal On 26 May 2010, the appellants brought an action before the Civil Service Tribunal, registered under case number F-34/10, seeking, first, annulment of their February 2010 salary statements, in so far as they disclosed the EIB’s decisions to increase their contributions to the pension scheme, and, second, an order that the EIB pay a symbolic EUR 1 by way of compensation for the non-material harm which they had suffered. By separate document lodged at the Registry of the Civil Service Tribunal, the EIB raised an objection of inadmissibility pursuant to Article 78 of the Rules of Procedure of that Tribunal and requested that the Civil Service Tribunal rule on the inadmissibility of the action without going to the substance of the case. In their observations on the objection of inadmissibility, the appellants submitted, inter alia, that, in the light of the particular circumstances of the case, in particular the absence of any written provision relating to the time-limits within which members of staff of the EIB must bring proceedings, the strict application of the time-limit under general law of three months and ten days would undermine their right to an effective remedy (order under appeal, cited in paragraph 1 above, paragraph 18). By the order under appeal, cited in paragraph 1 above, adopted pursuant to Article 78 of the Rules of Procedure of the Civil Service Tribunal, that Tribunal, without initiating the oral procedure and without reserving its decision on the objection of inadmissibility for the final judgment, dismissed the action as being inadmissible on the ground that it had been brought out of time. Appeal before the General Court By document lodged at the Registry of the General Court on 28 April 2011, the appellants brought an appeal, pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, against the order under appeal, cited in paragraph 1 above, which appeal was registered under case number T-234/11 P. In that appeal, the appellants requested the Court to set aside that order, to dismiss the objection of inadmissibility raised by the EIB in Case F-34/10 and to refer the case back to the Civil Service Tribunal to enable it to rule on the substance. After establishing that no application for a hearing had been submitted by the parties within the period of one month from notification of closure of the written procedure, the Court gave judgment in the case without any oral procedure. In support of their appeal, the appellants raised three grounds, the first as the principal ground of appeal and the two others as alternative grounds. The first ground alleged an error of law in the interpretation of the concept of a ‘reasonable period’ for the bringing of the action at first instance, and, in particular, breach of the principle of proportionality and infringement of the right to effective judicial protection. The second ground alleged an error of law in the interpretation of the applicable procedural rules, in particular of those relating to the existence of unforeseeable circumstances. The third ground alleged distortion of the evidence submitted to the Civil Service Tribunal to substantiate the existence of unforeseeable circumstances, and infringement of the rules relating to measures of inquiry and to organisation of the procedure at first instance. In the judgment under review, cited in paragraph 1 above, the Court dismissed the appeal on the ground that the grounds of appeal thus raised by the appellants were, in part, inadmissible and, for the rest, unfounded. In dismissing the first ground of appeal, put forward as the principal ground, the Court held that the Civil Service Tribunal had correctly applied to the appellants’ situation, in the order under appeal, cited in paragraph 1 above, a rule that, by analogy with the time-limit for bringing proceedings laid down in Article 91(3) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), a period of three months had, as a general rule, to be considered a reasonable period for a member of staff of the EIB to bring an action for annulment of a measure adopted by the EIB which adversely affected him (judgment under review, cited in paragraph 1 above, paragraph 27). The Court held, in addition, that the obligation thus imposed on the members of staff of the EIB to bring their action within a specific period could not be regarded as undermining their right to an effective remedy or the principle of proportionality (judgment under review, cited in paragraph 1 above, paragraph 41). Review by the Court of Justice Following the proposal of the First Advocate General, the Court of Justice (Special Chamber, provided for in Article 123b of the Rules of Procedure of the Court of Justice, in the version applicable on the date of the proposal), held, by decision of 12 July 2012 in Case C-334/12 RX Arango Jaramillo and Others v EIB [2012] ECR I-0000, that there should be a review. As set out in that decision, the review was to consider, first, whether the judgment under review, cited in paragraph 1 above, affected the unity or consistency of European Union law in that the General Court, as appeal court, had interpreted the concept of a ‘reasonable period’, in the context of an action brought by members of staff of the EIB seeking annulment of a measure adopted by that bank which adversely affected those members, as a period which, if exceeded, had the result that the action was time-barred and, therefore, inadmissible, without the European Union Courts being required to take account of the particular circumstances of the case, and, second, whether that interpretation of the concept of a ‘reasonable period’ might not interfere with the right to an effective judicial remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389). In the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, the Court of Justice set aside the judgment under review, cited in paragraph 1 above, after finding that it did indeed affect the consistency of European Union law in so far as the General Court, as the appeal court, had interpreted the concept of a ‘reasonable period’, in the context of an action brought by members of staff of the EIB seeking annulment of a measure adopted by that bank which adversely affected those members, as a period of three months, which, if exceeded, entailed automatically that the action was out of time and, therefore, inadmissible, without the European Union Courts being required to take into consideration the circumstances of the case. However, as it took the view that the definitive answer to the question of the admissibility of the appellants’ action, in particular as to whether or not that action had been brought within a reasonable period, within the meaning of the case-law that is consistent with the principle of the right to an effective remedy, did not follow from the findings of fact on which the judgment under review, cited in paragraph 1 above, was based, the Court of Justice held that it could not itself give final judgment in the proceedings, pursuant to Article 62b of the Statute of the Court. Consequently, although it ruled on the costs relating to the review procedure, the Court of Justice referred the case back to the General Court, for the purposes of the appraisal, in the light of all the circumstances of the particular case, of the reasonableness of the period within which the appellants had brought their action before the Civil Service Tribunal. The case referred back following review Procedure In accordance with Article 121a of the Rules of Procedure of the General Court, the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, has had the effect of bringing this case before the General Court once more. By letter of 1 March 2013, the Registry of the General Court, in accordance with Article 121c(1) of the Rules of Procedure, invited the parties to lodge, within one month of service of the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, their written observations on the conclusions to be drawn from that judgment for the outcome of the proceedings. On 22 March 2013 and 16 April 2013 respectively, the EIB and the appellants lodged their observations with the Registry of the Court. In its observations, the EIB contends that the Court should: – primarily, refer the case back to the Civil Service Tribunal; – in the alternative, dismiss the appeal, after having confirmed the inadmissibility of the action brought by the appellants before the Civil Service Tribunal by reason of its being out of time, on the ground that that action had been brought within a period of time which does not appear to be reasonable in the light of all the circumstances of the particular case, and order the appellants to pay the costs relating to the appeal proceedings. In their observations, the appellants claim that the Court should: – uphold the first ground of appeal and set aside, on that basis, the order under appeal, cited in paragraph 1 above, on the ground that their action before the Civil Service Tribunal was brought within a reasonable period in the light of all the circumstances of the particular case; – refer the case back to the Civil Service Tribunal for a judgment on the substance of the action and on the costs relating to the proceedings at first instance; – order the EIB to pay the costs relating to the appeal proceedings. Law By the effect of the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, the General Court has before it once more the appeal referred to in paragraph 8 above and must reconsider the three grounds put forward by the appellants in support of that appeal, as set out in paragraph 11 above, drawing all the conclusions required by that judgment for the outcome of the dispute. First ground of appeal, alleging an error of law in the interpretation of the concept of a ‘reasonable period’ for the bringing of the action at first instance, and, in particular, breach of the principle of proportionality and infringement of the right to effective judicial protection The first ground of appeal consists, in essence, of two parts. The first part alleges an error of law in the interpretation of the concept of a ‘reasonable period’ for the bringing of the action at first instance. The second part alleges a breach of the principle of proportionality and of the right to effective judicial protection. By the first part of the first ground of appeal, the appellants complain that the Civil Service Tribunal, in the order under appeal, cited in paragraph 1 above, erred in law in dismissing their action as being inadmissible on the ground that, in essence, the period of three months, ten days and a few seconds, within which the application at first instance was lodged with the Registry of the Civil Service Tribunal, was not a reasonable period. They claim that, in so doing, the Civil Service Tribunal gave an effect to the case-law concerning the time-limits within which members of staff of the EIB must bring proceedings (Joined Cases T-7/98, T-208/98 and T-109/99 De Nicola v EIB [2001] ECR-SC I-A-49 and II-185, paragraph 99, and Case T-192/99 Dunnett and Others v EIB [2001] ECR II-813 , paragraphs 53 and 58) that was extraneous to it, by de facto abandoning the principle that an action must be brought within a reasonable period, which is inherently flexible and allows the weighing-up of the specific interests at stake, and by substituting for it a precise time-limit of three months, to be strictly and generally applied. They also claim that the Civil Service Tribunal did not take account of the documents and statements produced before it, which show that, firstly, within the period of three months and ten days, certified copies of the application at first instance had been received, by electronic mail, by other addressees connected to servers different from that of dispatch, and that, secondly, there had been an electrical failure at the appellants’ lawyers’ business premises on the evening on which the application at first instance was sent, which had ended about ten minutes before midnight, delaying the sending of the application. In addition, they claim that the Civil Service Tribunal failed to take account of the particular circumstances of the case and, inter alia, of the fact that the EIB had, intentionally or negligently, failed to meet its legal responsibility to set a precise and reliable time-limit for bringing proceedings, and that it had adopted the contested decisions, which took the form of the February 2010 salary statements, on the basis of a rule that had not yet been published and that had still not been published on the day on which the action was brought. By the second part of the first ground of appeal, the appellants claim that the Civil Service Tribunal, in the order under appeal, cited in paragraph 1 above, failed to have regard for their right to effective judicial protection and infringed the principle of proportionality, which must inform the application of legal provisions or principles of law where they restrict the right of access to a court. In moving away from its earlier case-law, based on a flexible application, which was favourable to the appellants, of the principle that an action must be brought within a reasonable period, the Civil Service Tribunal, they claim, contradicted the fundamental requirement that the right of an individual to effective judicial protection must be weighed appropriately against the requirement of legal certainty. That contradiction, they submit, is evident in the particular circumstances of the present case, as described in paragraph 24 above. The appellants claim that, in the light of those particular circumstances, the strict and generalised application of a precise time-limit of three months, which neither is set by any legislative provision nor follows from clear and settled case-law, appears as an excessive restriction of their right of access to a court, as guaranteed by Article 47 of the Charter of Fundamental Rights. Moreover, it is disproportionate in relation to the aim pursued by the principle that an action must be brought within a reasonable period, namely that of ensuring the stability of measures of the EIB. The EIB disputes the arguments put forward by the appellants and contends, in essence, that both parts of the first ground of appeal should be rejected as being inadmissible and, in any event, as being unfounded. Under the first ground of appeal, the appellants, it contends, purport to submit for review on appeal the factual assessments of the Civil Service Tribunal set out in the order under appeal, cited in paragraph 1 above, something which falls outside the jurisdiction of the appeal court. In any event, the EIB contends that the first ground of appeal is unfounded. It is apparent from the case-law that the reasonable period for a member of staff of the EIB to bring an action is a fixed period of three months, extended on account of distance by a period of ten days, following, by analogy, from the provisions of the Staff Regulations relating to appeals. Furthermore, it is apparent from the case-law of the European Court of Human Rights and from that of the European Union Courts that the rules establishing time-limits for bringing proceedings can be reconciled with both the principle of proportionality and the right to effective judicial protection. In so far as the EIB disputes the admissibility of both parts of the first ground of appeal, it should be borne in mind that, according to settled case-law, the court of first instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the court of first instance has found or assessed the facts, the appeal court has jurisdiction to review the legal characterisation of those facts and the legal conclusions drawn from them by the court of first instance (judgment of 2 July 2010 in Case T-266/08 P Kerstens v Commission , ECR II-0000, paragraph 37; see, to that effect, Case C-551/03 P General Motors v Commission [2006] ECR I-3173 , paragraph 51; and Case C-167/04 P JCB Service v Commission [2006] ECR I-8935 , paragraph 106). By the first ground of appeal, the appellants do not dispute the findings of fact made by the Civil Service Tribunal in the order under appeal, cited in paragraph 1 above, and relating to the period of time within which the action at first instance was brought; rather, they dispute the conclusions which that tribunal drew from those findings, namely that the period within which the action was brought could not be regarded as ‘reasonable’. As it is, the question whether the Civil Service Tribunal was entitled in law to conclude, from the facts of the case, that the appellants had not brought their action within a reasonable period is a point of law that is subject to review by the appeal court. Consequently, the plea of inadmissibility raised by the EIB against the first ground of appeal must be rejected as being unfounded. For the purposes of examining the substance of the first part of the first ground of appeal, alleging an error of law in the interpretation of the concept of a ‘reasonable period’ for the bringing of the action at first instance, it must be pointed out that neither the TFEU nor the Staff Regulations of the EIB, adopted by its Board of Directors, in accordance with Article 29 of the Rules of Procedure of the EIB, contain any indications as to the time-limit for bringing proceedings applicable to disputes between the EIB and its members of staff. The reconciliation of the right to effective judicial protection, which is a general principle of European Union law and requires that an individual should have a sufficient period of time to assess the lawfulness of the measure adversely affecting him and, if necessary, to prepare his case, and the need for legal certainty, which requires that, after a certain time, measures taken by European Union bodies should become definitive, requires, none the less, that those disputes be brought before the European Union Courts within a reasonable period (see De Nicola v EIB , cited in paragraph 24 above, paragraphs 97 to 99 and the case-law cited; Dunnett and Others v EIB , cited in paragraph 24 above, paragraphs 51 to 53 and the case-law cited; and order of the President of the Court in Case T-275/02 R D v EIB [2002] ECR-SC I-A-259 and II-1295, paragraphs 31 and 32). In accordance with the case-law, the ‘reasonableness’ of a period, whether relating to the duration of administrative or legal proceedings or to the question of a period, which, as in the present case, has a direct bearing on the admissibility of an action, must always be assessed in the light of all the circumstances of the case and, in particular, of the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (see the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, paragraphs 28 to 37 and the case-law cited). It follows, generally, that the concept of a reasonable period cannot be regarded as a specific limitation period and, in particular, that the period of three months laid down in Article 91(3) of the Staff Regulations cannot be applied by analogy as a limitation period to members of staff of the EIB when they bring an action for annulment of a measure adopted by that bank which adversely affects them (see the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, paragraph 39 and the case-law cited). Consequently, the mere fact that a member of staff of the EIB has brought an action for annulment of a measure adopted by that bank which adversely affects him within a period that exceeds three months and ten days is not sufficient to support the conclusion that that action has been brought out of time, since the European Union Courts must, in any event, determine the reasonableness of the period in the light of the circumstances of the particular case. The mere fact that, in De Nicola v EIB , cited in paragraph 24 above (paragraphs 118 to 120) and Dunnett and Others v EIB , cited in paragraph 24 above (paragraphs 57 and 58), the Court held that periods of time not exceeding three months and ten days were reasonable does not mean that longer periods of time could not have been regarded as ‘reasonable’, in the light of the particular circumstances of the cases in question, since the European Union Court simply gave a ruling on the specific cases brought before it, without considering whether longer periods of time could also have been regarded as being reasonable. Conversely, the fact that, in the order in D v EIB , cited in paragraph 30 above (paragraphs 38 to 40), the President of the Court held that a period of time of five months was not reasonable in the light of the circumstances of the case does not lead to the conclusion that a shorter period of time, but none the less exceeding the period of three months and ten days, could not have been regarded as ‘reasonable’ or, a fortiori , that, in other circumstances, such a period could not have been regarded as being reasonable. In the present case, the Civil Service Tribunal held that the action at first instance had not been brought within a reasonable period and had, therefore, to be dismissed as being inadmissible by reason of its being out of time, on the sole ground that it had been brought a few seconds or fractions of a second after the expiry of a period of three months, extended on account of distance by the period of ten days provided for in Article 100(3) of the Rules of Procedure of the Civil Service Tribunal, which corresponded, by analogy, to the time-limit for bringing proceedings laid down in Article 91(3) of the Staff Regulations. By interpreting the concept of a ‘reasonable period’ in this way, in the context of an action brought by members of staff of the EIB for annulment of a measure adopted by that bank which adversely affected those members, as a period of three months and ten days, which, if exceeded, automatically entailed that the action was out of time and, therefore, inadmissible, without taking into consideration, as it was required to do by law, the circumstances of the case and, in particular, the importance of the case for the appellants, its complexity and the conduct of the EIB and the appellants respectively, the Civil Service Tribunal vitiated the order under appeal, cited in paragraph 1 above, by an error of law (see, to that effect and by analogy, the review judgment in Case C-334/12 RX-II Arango Jaramillo and Others v EIB , cited in paragraph 1 above, paragraphs 22, 27, 28, 46 and 54). The first part of the first ground of appeal, alleging that the Civil Service Tribunal erred in law in the order under appeal, cited in paragraph 1 above, in the interpretation of the concept of a ‘reasonable period’ for the bringing of the action at first instance, must therefore be upheld. Consequently, and without its even being necessary to rule on the second part of the first ground of appeal and on the second and third grounds of appeal, the appeal must be allowed in accordance with the form of order sought, and the order under appeal, cited in paragraph 1 above, must be set aside. Referral of the case back to the Civil Service Tribunal In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the General Court is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter. It is required to refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court. The Civil Service Tribunal has not, in the order under appeal, cited in paragraph 1 above, carried out all of the assessments required by law in order to rule on the reasonableness of the time-limit for bringing proceedings and, therefore, on the admissibility of the action. For that same reason, the definitive answer to the question of the admissibility of the action brought by the appellants does not flow from the assessments of fact on which the order under appeal, cited in paragraph 1 above, was based. In those circumstances, the state of the present proceedings does not permit a decision by the Court. The case must, for that reason, be referred back to the Civil Service Tribunal for a fresh decision on the action. Costs Since the case is to be referred back to the Civil Service Tribunal, the costs relating to the present appeal proceedings must be reserved. On those grounds, THE GENERAL COURT (Appeal Chamber) hereby: 1. Sets aside the order of the European Union Civil Service Tribunal (First Chamber) of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB ; 2. Refers the case back to the Civil Service Tribunal; 3. Reserves the costs. Jaeger Pelikánová Dittrich Delivered in open court in Luxembourg on 9 July 2013. [Signatures] Annex María Esther Badiola, residing in Luxembourg (Luxembourg), Marcella Bellucci, residing in Luxembourg, Stefan Bidiuc, residing in Grevenmacher (Luxembourg), Raffaella Calvi, residing in Schuttrange (Luxembourg), Maria José Cerrato, residing in Luxembourg, Sara Confortola, residing in Verona (Italy), Carlos D’Anglade, residing in Luxembourg, Nuno Da Fonseca Pestana Ascenso Pires, residing in Luxembourg, Andrew Davie, residing in Medernach (Luxembourg), Marta De Sousa e Costa Correia, residing in Itzig (Luxembourg), Nausica Di Rienzo, residing in Luxembourg, José Manuel Fernandez Riveiro, residing in Sandweiler (Luxembourg), Eric Gällstad, residing in Rameldange (Luxembourg), Andres Gavira Etzel, residing in Luxembourg, Igor Greindl, residing in Luxembourg, José Doramas Jorge Calderón, residing in Luxembourg, Monica Lledó Moreno, residing in Sandweiler, Antonio Lorenzo Ucha, residing in Luxembourg, Juan Antonio Magaña-Campos, residing in Luxembourg, Petia Manolova, residing in Bereldange (Luxembourg), Ferran Minguella Minguella, residing in Gonderange (Luxembourg), Barbara Mulder-Bahovec, residing in Luxembourg, István Papp, residing in Luxembourg, Stephen Richards, residing in Blaschette (Luxembourg), Lourdes Rodriguez Castellanos, residing in Sandweiler, Daniela Sacchi, residing in Mondorf-les-Bains (Luxembourg), Maria Teresa Sousa Coutinho da Silveira Ramos, residing in Almargem do Bispo (Portugal), Isabelle Stoffel, residing in Mondorf-les-Bains, Fernando Torija, residing in Luxembourg, María del Pilar Vargas Casasola, residing in Luxembourg, Carolina Vento Sánchez, residing in Luxembourg, Pé Verhoeven, residing in Brussels (Belgium), Sabina Zajc, residing in Contern (Luxembourg), Peter Zajc, residing in Contern. * Language of the case: French. © European Union The source of this judgment is the Europa web site. 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