Abstract
Assessment of the Chairman of the Complaints Board
4. Article 40a of the Rules of Procedure of the Complaints Board states the following:
“1. Irrespective of the revision procedure provided for in Articles 39 and 40, decisions taken in accordance with the conditions laid down in Articles 20a and 32 of these Rules may exceptionally be referred to a section composed of three members at the express request of a party based on a particularly serious ground and made within one month after notification of the decision given.
2. The decision to refer or to reject the request for referral shall be taken by the Chairman of the Complaints Board or, should the case have been heard by the latter, by the Chairman of the section to which it could be assigned. There shall be no right of appeal against this decision.
3. In the event of referral, the section composed of three members may not include the member of the Complaints Board who sat as a single judge. It shall give a ruling in the form of a decision in accordance with the ordinary Rules of Procedure.”
5. This application, duly assessed as being an application for referral to a section composed of three members, has been lodged within the given deadline of one month after notification of the order of 9 July 2024: it is admissible ratione temporis.
It remains to examine whether the grounds invoked by the applicant are “particularly serious”, a phrase that must be interpreted in light of the exceptional, and therefore restrictive, nature of these proceedings once the Complaints Board was granted jurisdiction to rule “in the first and final instance” (Article 27.2 of the Convention defining the statute of the European Schools).
Referral to a section composed of three members cannot be assimilated to any form of remedy, a case taken to the Appeal Court, or an appeal lodged by any other means organised within many national legal systems for the purpose of raising the dispute with a superior court.
This is why the application for referral must be based on “a particularly serious ground” regarding the application or interpretation of the Convention defining the statute of the European Schools or provisions used to give it effect, or of a serious question of a general nature, not limited to a particular case, which merits examination (see, by way of analogy, Article 73 of the Rules of Court of the European Court of Human Rights which outlines requests for referral to the Grand Chamber, and Paragraph 2 thereof which states that “Reasons need not be given for a refusal of the request.”).
6. In this instance, it must be acknowledged that the elements alleged by the applicant do not meet the conditions required by Article 40a of the RP as her application does not pose a particularly serious or novel question of a general nature.
The applicant actually far exceeds this purpose: in the questions she asks, she is requesting additional explanations or justifications related to the grounds for the reasoned order, which she is fundamentally challenging.
Her requests and questions demonstrate in themselves a misunderstanding of the legal considerations underpinning the reasoned order of 9 July 2024 and/or unfamiliarity with the rules of admissibility, within the limits of the jurisdiction granted to the Complaints Board by Article 27 of the Convention defining the statute of the European Schools and of the devolved role of each instance within the sui generis system of the European Schools (Central Enrolment Authority and Complaints Board amongst others).
7. Indeed, the applicant’s initial application, lodged under application no. 24/40, was rejected as inadmissible ratione temporis.
The reasoned order of 9 July 2024 cites the relevant articles of the Rules of Procedure and the factual reasons for which it was declared inadmissible.
This decision is in line with the constant case-law of the Court of Justice of the European Union according to which “questions concerning the admissibility of an action for annulment constitute a question of public policy which the EU Courts may consider at any time, even on their own initiative” (Judgment of the Court of 21 September 2023, C-478/21 P and case-law cited).
Once it had been established that the appeal had been lodged after the deadline, the decision could only declare the appeal inadmissible, motivating as it did.
8. The right to an effective remedy (or to a fair trial) - a general legal principle that is applied within the legal system of the European Schools - must be considered to be satisfied given that means of appeal are available to contest decisions adopted by the various bodies of the European Schools, under the conditions set out in Article 27 of the Convention defining the statute of the European Schools and in the legislation made to give it effect.
The material content of this right to an effective remedy can be resumed as constituting the right to receive a reasoned legal response from a competent jurisdiction - which is not, however, required to respond to all the pleas and arguments invoked by the parties; in this context, a simple decision of inadmissibility already satisfies the right to an effective remedy, even if it does not make reference to the alleged substantive pleas.
9. For all these reasons, the applicant’s request for a referral to a section composed of three members must be rejected.