If you have received a decision from a European institution that negatively affects you, it is important to act quickly. The prior complaint under Article 90.2 of the EU Staff Regulations is the first step, and a well-prepared approach from the beginning can make all the difference. Below, we explain what the Article 90.2 complaint is, when it must be submitted, and how it can be used to defend your rights as an EU official or staff member.
What is the prior complaint under article 90.2 of the EU Staff Regulations?
The prior complaint under Article 90.2 of the EU Staff Regulations is an administrative procedure that allows you to challenge decisions adopted by your institution before bringing a case before the General Court of the European Union. It is the first stage in protecting your statutory rights. If it is not properly submitted, any later judicial action may be declared inadmissible.
Legal nature of the EU staff regulations procedure
The prior complaint is an administrative appeal directed against a decision that negatively affects an official or staff member. Its purpose is to allow the institution to review its own decision. From a procedural perspective, it is a mandatory step before going to the General Court. The legal basis is found in Article 90 of the EU Staff Regulations, which governs both administrative requests and complaints against adverse decisions.
Difference between article 90.1 and article 90.2
Article 90 establishes two distinct procedures with different purposes.
Article 90.1 – Administrative request
This allows an official or staff member to ask the administration to take a decision.
It is used, for example, to request recognition of a right, obtain a benefit, or ask for a formal decision from the institution.
Article 90.2 – Complaint against an adverse decision
This allows you to challenge a decision that has already been adopted and negatively affects you.
It typically applies in cases such as negative evaluations, refusal of promotion, non-renewal of contracts, or decisions related to pensions, allowances, or other financial rights.
When should each procedure be used?
The choice between Article 90.1 and Article 90.2 depends on whether a decision already exists. If there is already a formal decision that negatively affects you, the correct approach is to use Article 90.2, as it allows you to directly challenge that decision. This is the most common situation in practice.
💡 Choosing the correct procedure is essential. A mistake at this stage can affect the admissibility of a future case before the General Court of the European Union.
Who can submit a complaint under Article 90?
The prior complaint can be submitted by anyone subject to the EU Staff Regulations or the employment framework of EU institutions, including:
- EU officials
- Temporary agents
- Contract agents
- Staff of EU agencies and bodies
In all cases, there must be a direct link with a European institution, and the decision being challenged must affect the person’s rights. Find out more about the categories of staff in the European Union.
When is it mandatory to submit a prior complaint?
The prior complaint under Article 90.2 of the EU Staff Regulations is mandatory whenever an official or staff member wishes to challenge a decision adopted by their institution. Any action aimed at annulling an EU administrative decision or seeking compensation requires, as a first step, the submission of this prior complaint.
A mandatory step before bringing a case before the GCEU
Filing a prior complaint is a condition for admissibility of any judicial action. This means that if an official or agent brings a case directly before the General Court of the European Union without first submitting a complaint under Article 90.2, the action will be declared inadmissible without examining the merits. This requirement is directly linked to Article 91 of the EU Staff Regulations, which governs access to judicial proceedings. It establishes that only decisions that have been previously challenged through a complaint under Article 90 can be brought before the Court of Justice of the European Union (CJEU).
Types of decisions that can be challenged
The prior complaint may be directed against any adverse act affecting the statutory rights of an official or staff member. The most common situations include negative performance evaluations, which may affect career progression, non-renewal of temporary or contract agent contracts, and refusal of promotion or reclassification in internal career procedures.
It is also common to challenge disciplinary decisions, such as sanctions or measures resulting from internal investigations, as well as decisions relating to financial rights, including the refusal of certain allowances, such as the expatriation allowance, family allowances, or other benefits linked to the personal and professional situation of the staff member. In all these cases, the Article 90 complaint allows the decision to be formally challenged, reviewed by the institution, and serves as the starting point for preparing a potential case before the General Court of the European Union.
Time limits under article 90 of the EU staff regulations
Compliance with time limits under Article 90 of the EU Staff Regulations is strictly enforced. These are mandatory deadlines, and failure to respect them results in the definitive loss of the right to challenge a decision, both at the administrative and judicial level.
Time limits under articles 90.1 and 90.2 EU staff regulations
A distinction must be drawn between the time limit for lodging a complaint and the institution’s time limit for replying. Article 90(1) allows an individual to request that the administration take a decision. The institution has four months from the submission of the request to notify its reasoned reply. If no reply is received within that period, the request is deemed to have been rejected by an implied decision. The person concerned then has three months to lodge a complaint under Article 90(2).
If the request is expressly rejected before the four-month period expires, the time limit for lodging a complaint runs from notification of that decision. Article 90(2) provides a three-month time limit for lodging a complaint against an act adversely affecting the person concerned. For a measure of a general nature, that period runs from publication. For an individual decision, the relevant date is its notification and, in any event, no later than the date on which the person concerned became aware of it.
Where the complaint challenges the implied rejection of a request, the time limit begins when the period for replying expires without a response having been received. Once a complaint under Article 90(2) has been lodged, the institution has a further four months to reply. If no reply is received within that period, the complaint is deemed to have been rejected by an implied decision, allowing the person concerned to bring proceedings before the EU courts.
💡 In summary: the institution has four months to reply both to a request under Article 90(1) and to a complaint under Article 90(2). The person concerned has three months to lodge the administrative complaint, calculated from the applicable starting date.
Consequences of missing the deadline
Submitting a complaint under article 90.2 after the three-month deadline leads to its automatic inadmissibility, without any examination of the merits of the case. This has direct consequences for any subsequent judicial action. If the prior complaint has been lodged out of time, any action brought before the General Court of the European Union will also be declared inadmissible. In practice, this results in the definitive loss of the right to challenge the decision, even where it may be unlawful.
For this reason, correctly identifying the starting point of the time limit and calculating deadlines with precision is essential in any procedure under Article 90 of the EU Staff Regulations. Compliance with time limits under Article 90 of the EU Staff Regulations is strictly enforced. These are mandatory deadlines, and failure to respect them results in the definitive loss of the right to challenge a decision, both at the administrative and judicial level.
What happens after submitting a complaint under article 90.2?
The institution has four months from the lodging of the complaint to notify its reasoned reply. The consequences differ depending on whether an express reply is received or that period expires without a response.
Express or implied rejection of the complaint
The institution may uphold the complaint, in whole or in part, or reject it by a reasoned decision. It is important to examine which issues have been addressed and whether the adverse aspects of the original decision remain in place. If no reply is received within four months, the complaint is deemed to have been rejected by an implied decision. The time limit for bringing judicial proceedings then begins to run. The date of implied rejection should therefore be calculated as soon as the complaint is lodged.
Bringing an action before the General Court of the EU
Following an express or implied rejection, the official or other member of staff may bring an action before the General Court of the European Union, under Article 91 of the Staff Regulations. The ordinary time limit is three months, running from notification of the express rejection or from the date of the implied rejection. This judicial time limit is extended by a single period of ten days on account of distance. If an express rejection is notified after the implied rejection but before the time limit for bringing proceedings expires, that time limit starts to run afresh. Representation by a duly authorised lawyer is mandatory before the General Court. Our specialist legal team at Arthur & Marin can provide that representation.
Relationship between the article 90 complaint and the action before the General Court
The prior complaint under article 90.2 of the EU Staff Regulations and the subsequent action before the General Court of the European Union (GCEU) form a single procedural path. They are not independent steps, but successive stages of the same process. In practice, the quality of the complaint directly affects the scope, admissibility, and chances of success of the judicial action.
Continuity between the administrative and judicial phases (articles 90 and 91)
There is a clear continuity between the administrative phase (Article 90.2) and the judicial phase (Article 91 of the Staff Regulations). This continuity is reflected in the principle of consistency, according to which the action before the General Court must be based on the same facts, legal arguments, and claims previously raised in the administrative complaint. It is at the stage of the Article 90.2 complaint that the dispute is defined and the alleged unlawfulness is identified. These elements will later form the basis of the case brought before the EU Courts.
💡 For this reason, an incomplete or poorly structured complaint can significantly limit the chances of success in the judicial phase.
Limits of the judicial action
This principle of consistency has important practical consequences. The General Court will generally examine only those legal arguments that were raised during the administrative phase. Any new arguments introduced at the judicial stage may be declared inadmissible.
💡 As a result, failing to raise a relevant legal issue, not invoking an applicable rule, or not sufficiently developing a legal argument at the administrative stage may have irreversible consequences in court.
Objectives of an action before the General Court
An action before the General Court of the European Union may pursue several objectives. One of the main aims is the annulment of the contested decision, where it can be shown that the institution acted unlawfully or in breach of the Staff Regulations or general principles of EU law. The action may also include a claim for compensation for damages, whether material or non-material, provided that there is a clear link between the administration’s conduct and the harm suffered. More broadly, the procedure aims to protect the rights of EU officials and staff, including their career progression, working conditions, and financial rights.
Importance of working with a lawyer specialized in EU law
Working with a lawyer specialized in European Union law allows your case to be assessed from the outset with a technical and strategic approach. This significantly increases the chances of success, both at the stage of the Article 90 prior complaint and in any subsequent action before the General Court of the European Union (GCEU).
Strategy from the administrative stage
The administrative phase is where the case is built. It is at this stage that the facts, legal arguments, and claims are defined and structured for any future judicial proceedings. A sound legal strategy requires correctly identifying the contested act, selecting the relevant legal grounds — including provisions of the Staff Regulations, general principles of EU law, and applicable case law — and formulating a clear and well-structured claim (petitum). Any omission or error at this stage may limit, or even prevent, an effective defence before the General Court.
Common mistakes without legal assistance
In practice, many complaints fail due to avoidable errors. One of the most common is insufficient legal reasoning, where the facts are described but not properly supported by legal arguments, weakening the case from the beginning. It is also frequent to omit key legal grounds, such as breaches of the principle of equal treatment, manifest errors of assessment, or violations of the Staff Regulations. These arguments cannot usually be introduced later before the General Court if they were not raised in the administrative phase. Another critical mistake is the incorrect identification of the contested act, especially in complex administrative contexts where multiple decisions may exist. Such errors often lead to the inadmissibility of the complaint.
Added value of our firm
Our work is based on a deep knowledge of the EU Staff Regulations and the case law of the General Court and the Court of Justice of the European Union. Our experience in EU litigation allows us to anticipate procedural scenarios, identify weaknesses in the case, and strengthen key arguments from the administrative stage. We adopt a comprehensive approach, covering the prior complaint, the potential judicial action, and, where appropriate, claims for compensation. This ensures consistency, legal precision, and the highest possible chances of success.
Success stories in EU Staff regulations claims
Experience in handling administrative complaints under Article 90 of the EU Staff Regulations and actions before the General Court of the European Union is a key factor in achieving successful outcomes. Below are real examples from our firm, illustrating how a well-prepared legal strategy can make a decisive difference.
Recovery of expatriation allowance after initial refusal
A contract agent working for an EU agency was denied the expatriation allowance, as the institution considered that there was a sufficient link with the host country. Our firm carried out an in-depth analysis of the concepts of habitual residence and centre of interests, relying on relevant case law from the General Court. We submitted a complaint under Article 90.2, providing evidence of the temporary nature of the client’s stay and the lack of genuine integration.
💡As a result, the institution reconsidered its position and granted the allowance, including retroactive financial adjustments.
Annulment of a negative evaluation and career impact
An EU official received a negative performance evaluation, which prevented internal promotion. We identified legal defects such as lack of proper reasoning and manifest errors of assessment in the annual review. A carefully structured complaint led to a reassessment of the case.
💡 As a result, the negative evaluation was annulled and the official’s career progression opportunities were restored.
Defence against disciplinary sanctions
An EU official was subject to a disciplinary sanction following an internal investigation. We identified procedural irregularities and breaches of the right of defence. The complaint was supported by relevant EU case law in similar situations.
💡 As a result, the sanction was significantly reduced and its impact on the official’s career was mitigated.
Correction of financial rights and pension recalculation
A retired EU official was denied the correct calculation of their pension by a European institution. We submitted a complaint under Article 90.2, including a detailed financial assessment and supporting legal arguments based on EU case law.
💡 As a result, the institution revised its position and granted a favourable recalculation of the pension, including back payments.
Action for annulment before the General Court of the EU
An EU official with more than ten years of service saw their career progression blocked due to an adverse decision affecting their promotion prospects. Despite having submitted a prior complaint under Article 90, the institution rejected it without reasoning. Our firm intervened at the judicial stage by bringing an action for annulment before the General Court of the European Union.
The case was built around legal arguments, including lack of reasoning and breach of the principle of equal treatment compared to other candidates in a similar situation. The action was further strengthened through a detailed analysis of the administrative file and the criteria applied by the institution, highlighting inconsistencies.
💡As a result, the case was successfully challenged, opening the way for annulment of the decision and restoration of the official’s career rights.
Do you need help submitting a prior complaint under Article 90.2 EU staff regulations?
At Arthur & Marin, we advise EU officials and staff members in administrative complaints under Article 90 and litigation before the EU Courts. If you have received a decision from a European institution, we support you from the very beginning, including a case assessment, identification of the contested act, and evaluation of your chances of success.
Our work goes beyond the administrative phase. We ensure full alignment between the Article 90.2 complaint and any future action before the General Court, and we provide legal representation throughout the judicial process.
Contact us at info@arthurmarin.com or call +32 465 345 345 to act in time.
💡 We offer a case assessment in English, French, and Spanish, with a highly specialized focus on EU staff law.
