JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

2 March 2004

Case T-14/03

Colette Di Marzio

v

Commission of the European Communities

(Officials – Conditions for admissibility of actions – Remuneration – Change of place of employment – Withdrawal of the benefit of the weighting for France and the expatriation allowance – Principle of non-discrimination – Duty to have regard for the welfare of officials)

Full text in French II - 0000

Application:         for annulment of a decision to make deductions from the applicant’s salary, of a decision withdrawing the benefit of the secretarial allowance, of a decision withdrawing the benefit of the fixed allowance for travel expenses and for damages to make good the loss she alleges to have suffered.

Held:         The application is dismissed. The parties are ordered to bear their own costs.

Summary

1.     Officials – Actions – Prior administrative complaint – Time-limits – Matter of public policy – Point from which time starts to run – Notification of the monthly salary statement – Out of time – Excusable error – Definition

(Staff Regulations, Arts 90 and 91)

2.     Officials – Actions – Act adversely affecting the applicant – Decision rejecting a complaint – Pure and simple rejection – Confirmation of act adversely affecting the applicant – Action inadmissible

(Staff Regulations, Art. 91(1))

3.     Officials – Actions – Purpose – Direction to the administration – Inadmissible

(Art. 233 EC; Staff Regulations, Art. 91)

4.     Officials – Sick leave – Stay away from the place of employment without permission – Entitlement to the weighting for the place of stay – None

(Staff Regulations, Art. 60, second para.)

5.     Officials – Equal treatment – Definition – Limits

6.     Officials – Recovery of undue payments – Conditions – Irregularity of the payment patently evident – Criteria

(Staff Regulations, Art. 85)

7.     Officials – Administration’s duty to have regard for the interests of officials – Scope – Limits

8.     Officials – Actions – Action for damages – No illegal act committed by the administration – Dismissal

(Staff Regulations, Art. 91)

1.     The time-limits, prescribed by Articles 90 and 91 of the Staff Regulations, of three months for lodging a complaint against an act adversely affecting an official and three months for bringing an action following an express or implied decision rejecting the complaint are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain. It is therefore for the Court to verify, of its own motion, whether they have been complied with.

Complaints must be lodged within three months of ‘the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’. Notification of the monthly salary statement has the effect of setting time running for the purpose of the time-limit for proceedings against an administrative decision, where the scope of such a decision is clearly apparent from the statement.

The applicant is entitled to plead excusable error to justify his application being out of time where, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person.

(see paras 37-40)

See: 276/85 Cladakis v Commission [1987] ECR 495, para. 11; 159/86 Canters v Commission [1988] ECR 4859, para. 6; C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I-4837, para. 24; T-129/89 Offermann v Parliament [1991] ECR II-855, paras 30, 31 and 34; T-7/91 Schavoir v Council [1992] ECR II-2307, para. 34; T-232/97 Becret-Danieau and Others v Parliament [1998] ECR-SC I-A-157 and II-495, para. 32

2.     Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought. A purely confirmatory measure, such as an act which contains no new factors as compared with a previous measure adversely affecting the applicant and which has not therefore replaced it, cannot be described as an act adversely affecting the applicant.

(see para. 54)

See: 23/80 Grasselli v Commission [1980] ECR 3709, para. 18; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17; T-608/97 Plug v Commission [2000] ECR-SC I-A-125 and II-569, para. 23; T-134/02 Tejada Fernández v Commission [2003] ECR-SC I-A-125 and II-609, point 16

3.     Since issues of admissibility relating to questions of jurisdiction are a matter of public policy, it is for the Court of First Instance to examine them of its own motion. In proceedings brought under Article 91 of the Staff Regulations it is not for the Court of First Instance to make declarations of principle or to issue directions to Community institutions. Where an act is annulled, the institution concerned is required under Article 233 EC to take the necessary measures to comply with the judgment.

(see paras 62-63)

See: T-94/92 X v Commission [1994] ECR-SC I-A-149 and II-481, para. 33; T-583/93 P v Commission [1995] ECR-SC I-A-137 and II-433, para. 17; T-172/95 Chesi and Others v Council [1998] ECR-SC I-A-265 and II-817, para. 33; T-174/95 Svenska Journalistförbundet v Council [1998] ECR II-2289, para. 80

4.     An official who spends a period of sick leave in a Member State other than his place of employment without having obtained prior permission as required under the second paragraph of Article 60 of the Staff Regulations may not rely on that irregularity to claim the benefit of the weighting for the place where he is staying. Granting him that benefit would infringe the principle of equality in that officials who are in a regular situation would be unduly disadvantaged.

(see para. 73)

5.     The principle of non-discrimination applies only to persons who are in identical or comparable situations. It requires that differences in treatment between different categories of officials or temporary staff must be justified on the basis of objective and reasonable criteria, and that the difference must be proportionate to the aim pursued by the differential treatment.

(see para. 83)

See: T-8/93 Huet v Court of Auditors [1994] ECR II-103, para. 45

6.     An official is required to make repayment, pursuant to Article 85 of the Staff Regulations, where the error is one which would not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his salary. Furthermore, it is not necessary for the official concerned, in the exercise of his duty of diligence, to be able to determine the precise extent of the error made by the administration. The fact that he has doubts about the validity of the payments in question is sufficient for him to be obliged to contact the administration so that it can carry out the necessary checks. It must be verified whether the official concerned was able to carry out the necessary checks. The factors to be taken into consideration in that regard concern the official’s level of responsibility, his grade and seniority, the degree of clarity of the provisions of the Staff Regulations laying down the conditions for granting the allowance and the significance of the changes which have taken place in his personal or family circumstances, when payment of the sum at issue is dependent on the administration’s assessment of such circumstances.

The fact that an official is in Grade C does not mean that he was unable to carry out the necessary checks and therefore does not preclude the recovery of the undue payment.

(see paras 90-91, 94)

See: 310/87 Stempels v Commission [1989] ECR 43, para. 10; T-107/92 White v Commission [1994] ECR-SC I-A-41 and II-143, paras 37 to 43; T-38/93 Stahlschmidt v Parliament [1994] ECR-SC I-A-65 and II-227, para. 19; T-545/93 Kschwendt v Commission [1995] ECR-SC I-A-185 and II-565, para. 104; T-122/95 Chabert v Commission [1996] ECR-SC I-A-19 and II-63, para. 35; T-14/99 Kraus v Commission [2001] ECR-SC I-A-7 and II-39, para. 41; T-205/01 Ronsse v Commission [2002] ECR-SC I-A-211 and II-1065, paras 46 and 47

7.     The duty of the administration to have regard for the interests of its officials and the principle of sound administration imply in particular that when the competent authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned. The duty to have regard for the interests of its officials cannot in any circumstances require the administration to act in contravention of the relevant provisions. In particular, the duty to have regard for the welfare of officials cannot lead the administration to give a Community provision an effect contrary to its clear and precise wording. An official cannot therefore rely on the duty to have regard for his welfare in order to obtain advantages which he cannot be granted under the Staff Regulations.

(see paras 99-100)

See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; T-65/92 Arauxo-Dumay v Commission [1993] ECR II-597, para. 37; T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II-275, para. 58; T-66/95 Kuchlenz-Winter v Commission [1997] ECR II-637, para. 43; T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, para. 54; T-67/99 K v Commission [2000] ECR-SC I-A-127 and II-579, paras 68 and 69; T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, para. 71; T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, para. 77

8.     Non-contractual liability on the part of the Community presupposes the fulfilment of a set of conditions concerning the illegality of the allegedly wrongful act committed by the Community institution, the actual damage suffered, and the existence of a causal link between the alleged act and the damage alleged to have been suffered. Consequently, an application made by an official for compensation for non-material damage alleged to have been suffered by him as a result of the illegality of the act committed by the Community institution must be dismissed if that illegality is not established.

(see para. 106)

See: T-3/92 Latham v Commission [1994] ECR-SC I-A-23 and II-83, paras 63 to 66; T-589/93 Ryan-Sheridan v European Foundation for the Improvement of Living and Working Conditions [1996] ECR-SC I-A-27 and II-77, paras 141 and 142