61972J0011

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PROCEEDINGS - NON-CONTRACTUAL LIABILITY - ACTION FOR COMPENSATION - TIME IN WHICH ACTION BROUGHT - PERIOD OF LIMITATION

( EEC TREATY, ARTICLES 173 AND 175; STATUTE OF THE EEC COURT, ARTICLE 43 )

IN NO CIRCUMSTANCES CAN THE APPLICATION OF ARTICLES 173 AND 175 OF THE EEC TREATY RESULT IN THE PERIOD OF LIMITATION OF FIVE YEARS LAID DOWN IN THE FIRST SENTENCE OF ARTICLE 43 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC BEING REDUCED .

IN CASE 11/72

LUIGI GIORDANO, A FORMER AUXILIARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY POMPEO CORSO; OF THE PALERMO BAR, AND HAVING CHOSEN HIS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF MME . MAGDA BELLERI, 12 RUE DE BRAGANCE, APPLICANT,

VERSUS

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIORGIO PINCHERLE, ACTING AS AGENT, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

CLAIM FOR DAMAGES

1 THE ACTION, BROUGHT ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, SEEKS TO ESTABLISH THE LIABILITY OF THE COMMUNITY BY REASON OF THE CIRCUMSTANCES UNDER WHICH THE APPLICANT AFTER THE NON-RENEWAL OF HIS CONTRACT AS AN AUXILIARY AGENT, WAS UNABLE TO OBTAIN A POST WHICH HE SOLICITED IN THE SERVICES OF THE COURT OF JUSTICE, IN CONSEQUENCE OF UNFAVOURABLE INFORMATION FORWARDED BY THE COMMISSION WITH REGARD TO HIM .

BY VIRTUE OF THIS, THE APPLICANT CLAIMS THE TOTAL SALARY WHICH HE WAS UNABLE TO OBTAIN FROM DECEMBER 1968 - WHEN HIS CANDIDATURE WAS REJECTED BY THE COURT OF JUSTICE - UNTIL THE DATE WHEN JUDGMENT IS DELIVERED BY THE COURT, OR ANY OTHER SUM WHICH THE COURT THINKS PROPER .

ADMISSIBILITY

2 ACCORDING TO THE COMMISSION THE ACTION IS INADMISSIBLE SINCE IT IS IN REALITY DIRECTED TOWARDS OBTAINING JUDICIAL CONTROL OF DECISIONS WHICH ARE NOW BEYOND ATTACK, NAMELY THE NON-RENEWAL OF THE APPLICANT' S CONTRACT AND THE REJECTION BY THE COMMISSION OF FINANCIAL CLAIMS WHICH HE HAD MADE ON THIS ACCOUNT .

3 THE APPLICANT FOR HIS PART ASSERTS THAT HIS CLAIM RELATES TO MAKING GOOD THE DAMAGE RESULTING FROM THE FACT THAT HE HAS NOT BEEN APPOINTED BY THE COURT OF JUSTICE BECAUSE OF DAMAGING INFORMATION SUPPLIED BY THE FORMER EMPLOYER WHO, " NOT SATISFIED WITH HAVING ILLEGALLY BROKEN THE CONTRACT OF EMPLOYMENT, " HAS BY HIS SUBSEQUENT BEHAVIOUR PREVENTED THE CREATION OF A CONTRACT OF EMPLOYMENT WITH ANOTHER COMMUNITY INSTITUTION .

HE SPECIFIES THAT WHILST THE OBJECT OF THE CLAIM IS SOLELY TO MAKE GOOD THE DAMAGE ALLEGEDLY SUFFERED, THE INTENTIONALLY INJURIOUS CHARACTER OF THE ALLEGED ACT IS MADE APPARENT BY THE WHOLE OF THE PREVIOUS BEHAVIOUR OF THE DEFENDANT " INCLUDING THE ILLEGAL DISMISSAL . "

4 THE TERMS OF THE APPLICATION, AS SPECIFIED IN THE OBSERVATIONS MADE IN REPLY TO THE INTERLOCUTORY APPLICATION OF THE COMMISSION RELATING TO THE ADMISSIBILITY OF THE ACTION, DEFINE THE OBJECT OF THE CLAIM AS REFERRING TO THE AWARD OF DAMAGES BY REASON OF THE COMMISSION' S BEHAVIOUR SUBSEQUENT TO THE EXPIRY OF THE CONTRACT OF EMPLOYMENT .

ON THE OTHER HAND, NOT HAVING CONTESTED IN COURT THE LEGALITY OF THE CESSATION OF HIS DUTIES, THE APPLICANT CANNOT BE ALLOWED TO DESCRIBE SUCH CESSATION AS ILLEGAL, NOR TO BASE AN ARGUMENT ON THE CIRCUMSTANCES IN WHICH IT ALLEGEDLY OCCURRED .

SINCE THAT PART OF THE ARGUMENT CANNOT BE TAKEN INTO CONSIDERATION, THE PLEA OF INADMISSIBILITY RAISED BY THE COMMISSION IS DEVOID OF ANY OBJECT .

5 TO THE EXTENT TO WHICH THE ACTION IS CONCERNED EXCLUSIVELY WITH LIABILITY PROPERLY SO CALLED, THE COMMISSION ALSO BASES ITS ARGUMENT AGAINST THE ADMISSIBILITY OF THE ACTION ON THE EXPIRY OF THE TIME LIMITS LAID DOWN BY ARTICLE 43 OF THE STATUTE ( EEC ) OF THE COURT .

THE APPLICANT HAVING ALREADY BROUGHT BEFORE THE COMMISSION, BY REQUESTS DATED RESPECTIVELY 7 OCTOBER 1970 AND 10 FEBRUARY 1971, CLAIMS IN SUBSTANCE IDENTICAL WITH THOSE WHICH ARE THE OBJECT OF THE ACTION, THE TIME LIMIT LAID DOWN BY ARTICLE 43 OF THE STATUTE OF THE COURT EXPIRED BEFORE THE FILING OF THE APPLICATION .

6 SUCH PLEA IN BAR RESTS ON AN ERRONEOUS INTERPRETATION OF ARTICLE 43 OF THE STATUTE .

BY THE FIRST SENTENCE OF THIS ARTICLE, PROCEEDINGS AGAINST THE COMMUNITY IN MATTERS ARISING FROM NON-CONTRACTUAL LIABILITY SHALL BE BARRED AFTER A PERIOD OF FIVE YEARS FROM THE OCCURRENCE OF THE EVENT GIVING RISE THERETO .

THE SECOND AND THIRD SENTENCES OF THE SAME ARTICLE HAVE REFERENCE EXCLUSIVELY TO THE INTERRUPTION OF THE PERIOD OF LIMITATION THUS LAID DOWN .

IT IS PROVIDED ON THIS POINT THAT THE PERIOD OF LIMITATION SHALL BE INTERRUPTED EITHER BY THE APPLICATION BROUGHT BEFORE THE COURT, OR BY A PRELIMINARY REQUEST ADDRESSED TO THE RELEVANT INSTITUTION, IT BEING HOWEVER UNDERSTOOD THAT, IN SUCH LATTER CASE, INTERRUPTION ONLY OCCURS IF THE REQUEST IS FOLLOWED BY AN APPLICATION WITHIN THE TIME LIMITS DETERMINED BY REFERENCE TO ARTICLES 173 AND 175, DEPENDING ON THE CASE IN ISSUE .

7 HENCEFORTH IT APPEARS THAT IN NO CASE CAN THE APPLICATION OF THESE PROVISIONS HAVE THE EFFECT OF CUTTING DOWN THE FIVE-YEAR PERIOD OF LIMITATION LAID DOWN BY THE FIRST SENTENCE OF ARTICLE 43 OF THE STATUTE .

THE APPLICANT HAVING COMMENCED HIS ACTION WITHIN SUCH PERIOD OF LIMITATION, THE ACTION IS ADMISSIBLE .

MERITS

8 WITH A VIEW TO ESTABLISHING THE BASIS FOR THE LIABILITY OF THE COMMUNITY, THE APPLICANT MUST IN THE FIRST PLACE BE ABLE TO PROVE THE EXISTENCE OF A FACT CREATING THE DAMAGE, WHICH IS ATTRIBUTABLE TO THE ACTION OF ONE OF THE INSTITUTIONS .

IN THIS RESPECT THE APPLICANT EXPLAINS THAT HE HAD A REAL CHANCE OF BEING APPOINTED AS AN ADMINISTRATOR IN THE " LIBRARY AND RESEARCH " DIVISION OF THE COURT OF JUSTICE, BUT THAT HE WAS FOILED BY UNFAVOURABLE INFORMATION FORWARDED BY THE COMMISSION ON THE SUBJECT OF HIS FORMER EMPLOYMENT .

9 HOWEVER HE HAS BEEN UNABLE TO ADDUCE ANY PROOF WHATEVER, EITHER AS TO THE REALITY OF HIS CHANCE OF RECRUITMENT, OR AS TO THE INFORMATION ALLEGEDLY FORWARDED BY THE COMMISSION .

A PREPARATORY DOCUMENT DRAWN UP BY THE DEPARTMENTS OF THE COURT ON THE SUBJECT OF A POSSIBLE TRAINING COURSE FOR THE PARTY CONCERNED, AND PUT IN EVIDENCE BY THE LATTER, CANNOT BE CONSIDERED AS CONCLUSIVE BECAUSE OF ITS PURELY INTERNAL AND PREPARATORY CHARACTER .

10 IN ADDITION, THE PLAINTIFF HAS PRODUCED A TELEGRAPHIC COMMUNICATION WHICH EMANATED FROM AN OFFICIAL OF THE COURT' S ADMINISTRATION, LETTING HIM KNOW THAT HIS CHANCES OF OBTAINING A POST DETERIORATED AFTER " ENQUIRIES MADE IN BRUSSELS ".

THIS COMMUNICATION, ALLUSIVE AND OF A PERSONAL NATURE, DOES NOT HOWEVER ESTABLISH MORE THAN THE EXISTENCE OF PRELIMINARY CONTACTS OR ENQUIRIES IN RELATION TO THE PARTY CONCERNED WITH A VIEW TO HIS POSSIBLE APPOINTMENT .

11 THE APPLICANT HAS NOT PRODUCED, NOR EVEN OFFERED TO PRODUCE, ANY ADDITIONAL PROOF IN SUPPORT OF HIS ALLEGATIONS .

HENCE, THE PROSPECTS OF A POST WHICH HE CLAIMS TO HAVE HAD, IN THE SAME WAY AS THE EFFECT OF ALLEGEDLY UNFAVOURABLE INFORMATION ON THE PART OF THE COMMISSION ON HIS SUPPOSED CHANCES, MUST BE CONSIDERED AS BELONGING TO AN AREA OF PURE CONJECTURE .

12 THUS THE ACTION MUST BE REJECTED INVIEW OF THE APPLICANT' S FAILURE TO ESTABLISH EVEN THE SEMBLANCE OF A FACT CAPABLE OF GIVING RISE TO LIABILITY ON THE PART OF THE COMMUNITY .

13 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE APPLICANT HAS FAILED IN HIS PLEAS .

HOWEVER, BY ARTICLE 70 OF THE RULES OF PROCEDURE, THE EXPENSES INCURRED BY THE INSTITUTIONS IN ACTIONS BY COMMUNITY SERVANTS SHALL BE BORNE BY THE INSTITUTIONS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION;

2 . ORDERS EACH OF THE PARTIES TO BEAR ITS OWN COSTS .