Case C‑334/12 RX-II, Jaramillo et al v. EIB

Court further defines scope of Article 47 of the Charter

>> Since 1 January 2007 the salary statements of the EIB members of the staff were no longer produced in their traditional paper format but in electronic format, but were entered in the EIB’s ‘Peoplesoft’ computer system each month and could 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’ system. Those statements, as compared with the statements for January 2010, showed 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.

The members of Staff concerned sought, first, annulment of their February 2010 salary statements and, secondly, an order that the EIB pay a symbolic EUR 1 by way of compensation for the non-material harm suffered by them.

By the order of 4 February 2011 the Tribunal dismissed the action as being inadmissible. It held, in essence, that since the time-limit for bringing an action had expired on 25 May 2010, the application by the Members of Staff concerned, received electronically by the Registry of that Tribunal on 26 May at 00.00 hours, was out of time and, therefore, inadmissible. (see: Case F‑34/10 Arango Jaramillo and Others v EIB [2011]).

This judgment was confirmed by the General Court. (see: Case T‑234/11 P Arango Jaramillo and Others v EIB [2012]). Following the proposal by the First Advocate General that the judgment of 19 June 2012 be reviewed, the Special Chamber, provided for in Article 123b of the Rules of Procedure of the Court of Justice on 12 July 2012 held that there should be a review of that judgment in order to determine whether it affected the unity or consistency of European Union law. (Case C‑334/12 RX Arango Jaramillo and Others v EIB (2012)). The Special Chamber identified two more specific grounds for the review. First, it held that it was necessary to determine whether the General Court, by finding, like the Civil Service Tribunal, that, when assessing the reasonableness of the period within which an action was brought by EIB members of staff for annulment of an EIB measure adversely affecting them, the Courts of the European Union did not have to take account of the particular circumstances of each case, adopted an interpretation which was consistent with the case‑law of the Court that the reasonableness of a time-limit which was not laid down by primary or secondary European Union law must be assessed by reference to the particular circumstances of each case.

Secondly, it was necessary to determine whether, by ruling that the consequence of exceeding the time‑limit for bringing an action, which was not set by primary or secondary European Union law, was that the action was time-barred, the General Court’s approach was such as to undermine the right to an effective legal remedy as provided for in Article 47 of the Charter.

The Special Chamber held that if it were to be held that the judgment of 19 June 2012 was vitiated by an error of law, it would be necessary to examine whether that judgment affected the unity or consistency of European Union law and, if so, to what extent.

In the present judgment, the Court held that no provision of European Union law laid down a time-limit within which a member of staff of the EIB must bring an action for annulment of a measure adopted by the EIB which adversely affected him.

The Court held that where the duration of a procedure was not set by a provision of European Union law, the ‘reasonableness’ of the period of time taken by the institution to adopt a measure at issue was to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002]).

The Court added that the duty on the institutions and the bodies of the European Union, in the context of administrative procedures, to allow for reasonable periods of time, which could not be determined by reference to precise maximum limits determined in an abstract manner, had been confirmed subsequently by the Court (see, inter alia, Case C‑293/05 Commission v Italy [2006] and Case C‑321/09 P Greece v Commission [2011]).

The Court held that it was appropriate to apply the concept of a ‘reasonable period’ in the same way to an action or an application in respect of which no provision of European Union law had prescribed the period of time within which that action or that application must be brought. The Court stressed that in both cases, the Courts of the European Union must take into consideration the particular circumstances of the case.

The Court held that as regards the question whether the General Court undermined the right to an effective remedy by ruling that the consequence of exceeding the reasonable period within which the members of staff were to bring an action was that the action was time-barred, the principle of effective judicial protection was a general principle of European Union law to which expression was now given by Article 47 of the Charter (see Case C‑389/10 P KME Germany and Others v Commission [2011]).

The Court, referring to the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, pointed out that the first paragraph of Article 47 of the Charter was based on Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the second paragraph of Article 47 corresponds to Article 6(1) of the ECHR.

The Court held that according to the case-law of the European Court of Human Rights, the ‘right to a court’ was not absolute. The exercise of that right was subject to limitations, inter alia as to the conditions for the admissibility of an action. The Court held that while the persons concerned should expect those rules to be applied, the application of such rules should nevertheless not prevent litigants from availing themselves of an available legal remedy (see, to this effect judgment of the European Court of Human Rights Anastasakis v Greece, No 41959/08, §24).

The Court held that in the present case case, in which the time-limit for the EIB members of staff bringing an action against the measures adversely affecting them had not been set beforehand by a rule of European Union law, nor limited under Article 52(1) of the Charter, it was common ground that the members of staff concerned, in the light of the case‑law of the Court relating to the application of the concept of a ‘reasonable period’, were entitled to expect that the General Court would simply apply that case-law in order to decide on the admissibility of that action rather than impose a pre-determined limitation period on their action.

That distortion of the concept of a reasonable period meant the members of staff concerned were unable to defend their rights relating to their remuneration by means of an effective action before a tribunal in accordance with the conditions laid down by Article 47 of the Charter.

The Court concluded that the General Court must be considered to have misinterpreted the concept of a ‘reasonable period’ and consequently, to have fundamentally altered the very essence of the concept of a reasonable period by holding that, in the present case, ‘a rule of law’ had to be applied, where the strict application of that rule produced an outcome that was contrary to the outcome emerging from the General Court’s own case-law.

Whether unity or consistency of EU law affected

The Court pointed out that the first paragraph of Article 62b of the Statute of the Court of Justice of the European Union provides that if the Court of Justice finds that the decision of the General Court affects the consistency of European Union law, it is to refer the case back to the General Court, which is to be bound by the points of law decided by the Court of Justice. In referring the case back, the Court of Justice may also state which of the effects of the decision of the General Court are to be considered definitive in respect of the parties to the litigation. In exceptional cases, the Court of Justice can itself give final judgment if, having regard to the result of the review, the outcome of the proceedings flows from the findings of fact on which the decision of the General Court was based.

The Court held that, in the present case, given that the consistency of European Union law was affected as a result of a misinterpretation of the concept of a ‘reasonable period’ and of the failure to take full account of the principle of effective judicial protection, the definitive answer to the question of the admissibility of the action brought by the members of staff concerned did not flow from the findings of fact on which the judgment of 19 June 2012 was based and consequently, the Court of Justice could not itself give final judgment in the proceedings, in accordance with the third sentence of the first paragraph of Article 62b of the Statute of the Court of Justice.

It was, therefore, according to the Court necessary to refer the case back to the General Court and not, as the members of staff concerned claimed, back to the Civil Service Tribunal, 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 those members of staff brought their action before the Civil Service Tribunal.

Text of judgment