JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

6 July 2004

Case T-281/01

Hubert Huygens

v

Commission of the European Communities

(Officials – Reports procedure – Delay in the drawing-up of the staff report – Reasonable period – Action for damages – Material and non-material damage – Promotions procedure – Implied rejection of the applicant’s promotion – Action for annulment – Decision not to promote the applicant in the 2000 promotions procedure – Lack of statement of reasons – Decision to promote 54 officials in the 2000 promotions procedure – Inadmissibility)

Full text in French II - 0000

Application:         first, for compensation for the damage suffered as a result of the delay in the reports procedure in respect of the applicant in the 1997/99 procedure and, second, for the annulment of the implied rejection by the Commission of the claim for compensation for the damage suffered as a result of such delay, of the implied decision of the Commission refusing to promote the applicant to Grade B 1 in the 2000 promotions procedure and of the decision of the Commission to promote 54 officials to Grade B 1 in the 2000 promotions procedure and, in any event, of the decision of the Director of the Office for Official Publications of the European Communities to promote four officials to Grade B 1 as part of the 2000 promotions procedure.

Held:         The Commission is ordered to pay to the applicant EUR 500 in compensation for the non-material damage suffered by him. The decision of the Commission not to promote the applicant to Grade B 1 in the 2000 promotions procedure which is apparent from the publication in Administrative Notices No 31 of 6 April 2000 of the list of officials promoted to that grade is annulled. The remainder of the action is dismissed. The Commission is ordered to bear the costs.

Summary

1.     Officials – Actions – Action for damages – Claim for annulment of a pre-litigation decision refusing a request for compensation – Claim cannot be assessed in isolation from claims for annulment

(Staff Regulations, Arts 90 and 91)

2.     Officials – Actions – Request within the meaning of Article 90(1) of the Staff Regulations – Time-limit – Reasonable period

(Staff Regulations, Art. 90(1))

3.     Officials – Reports procedure – Staff report – Drawing up – Time-limit – Mandatory nature of the time-limits set by an institution’s internal rules – Delay – Administrative fault

(Staff Regulations, Art. 43)

4.     Officials – Reports procedure – Staff report – Drawing up – Delay – Administrative fault giving rise to non-material damage

(Staff Regulations, Art. 43)

5.     Officials – Promotion – Complaint by a candidate who has not been promoted – Decision rejecting the complaint – Complete absence of reasons – Regularisation during the pre-litigation procedure – Not permissible – Consequences

(Staff Regulations, Arts 25(2), 45 and 90(2))

6.     Officials – Appeals – Prior administrative complaint – Time-limit – Matter of public policy – Expiry – Reopening – Condition – New fact

(Art. 236 EC; Staff Regulations, Arts 90 and 91)

1.     An institution’s decision rejecting a claim for compensation forms an integral part of the preliminary administrative procedure which precedes an action to establish liability before the Court of First Instance. Consequently, claims for annulment brought by the official cannot be assessed in isolation from the claims relating to liability. The measure setting out the position adopted by the institution during the pre-litigation stage only has the effect of allowing the party who has suffered damage to apply to the Court for compensation.

(see para. 38)

See: T-90/95 Gill v Commission [1997] ECR-SC I-A-471 and II-1231, para. 45; T-77/99 Ojha v Commission [2001] ECR-SC I-A-61 and II-293, para. 68; T‑209/99 Hoyer v Commission [2002] ECR-SC I-A-243 and II-1211, para. 32

2.     Article 90(1) of the Staff Regulations does not lay down any time-limit within which a claim must be made to the appointing authority.

However, it must be held that such a claim can be admissible only if it is made within a reasonable period. Although the fact that no time-limit is laid down by Article 90(1) of the Staff Regulations is intended to protect the rights of officials by allowing them to refer claims to the administration at any time, the fact remains that the need for legal certainty requires that the exercise of the official’s right to refer a claim for compensation to the administration cannot be delayed indefinitely.

The question whether the claim for compensation was made within a reasonable time must of necessity be considered with specific reference to the circumstances of each individual case.

(see paras 42, 46-48)

3.     The administration has a binding obligation to ensure that staff reports are drawn up periodically on the dates laid down by the Staff Regulations and that they are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials.

The case-law granting the administration a reasonable period in which to draw up staff reports for its officials cannot apply where the provisions of the internal rules that are binding on that administration make the conduct of the reports procedure subject to specific time-limits.

Any breach of such a time-limit must, in the absence of special circumstances justifying it, be attributed to the institution concerned as an administrative fault giving rise to liability on its part.

On the other hand, an official cannot complain of delay in the drawing-up of his periodic report when that delay is attributable to him, if only partially, or where he contributed considerably to the delay.

(see paras 58, 64-67, 71)

See: 61/76 Geist v Commission [1977] ECR 1419, paras 44 and 45; 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, para. 15; 207/81 Ditterich v Commission [1983] ECR 1359, para. 25; T-29/89 Moritz v Commission [1990] ECR II-787, para. 22; T-59/96 Burban v Parliament [1997] ECR-SC I-A-109 and II-331, paras 44, 45 and 48; T-101/98 and T-200/98 Stodtmeister v Council [2000] ECR-SC I-A-177 and II-807, para. 49; T-187/01 Mellone v Commission [2002] ECR-SC I-A-81 and II-389, para. 77; T-278/01 den Hamer v Commission [2003] ECR-SC I-A-139 and II-665, paras 88, 90 and 91; T-327/01 Lavagnoli v Commission [2003] ECR-SC I-A-143 and II-691, paras 54, 56 and 57; T-296/01 Tatti v Commission [2003] ECR-SC I-A-225 and II-1093, para. 58

4.     A delay in the drawing-up of a staff report may in itself be prejudicial to the official because an official in possession of an irregular and incomplete personal file thereby suffers non-material damage as a result of being put in an uncertain and anxious state of mind with regard to his professional future.

(see paras 86-87)

See: Geist v Commission, cited above, para. 48; T-73/89 Barbi v Commission [1990] ECR II-619, para. 41; T-20/89 Moritz v Commission [1993] ECR II-1423, para. 46; Burban v Parliament, cited above, para. 72; Stodtmeister v Council, cited above, para. 56; Lavagnoli v Commission, cited above, para. 48; Tatti v Commission, cited above, para. 59

5.     Although the appointing authority is not under an obligation to provide unsuccessful candidates with reasons for its decision on promotion, it is required, on the other hand, to provide a statement of grounds for its decision rejecting a complaint lodged by an applicant who was not promoted, the statement of grounds for such a decision being deemed to be the same as the statement of reasons for the decision against which the complaint was directed so that consideration of the grounds of the one overlaps with that of the other.

The total absence of a statement of reasons before an action is brought cannot be remedied by explanations provided by that authority after the action has been initiated. At that stage, such explanations no longer fulfil their function. The commencement of proceedings accordingly puts an end to the possibility of the appointing authority’s regularising its decision by a reasoned reply rejecting the complaint.

In a case where it is clear that the institution has a discretion which means that it is conceivable that a different decision could have been taken, the breach, by that institution, of the obligation to state reasons which must be provided at the time the measure is adopted, although any failure to do so can be remedied at the latest before an action is brought, must result in the annulment of the contested decision without the Court considering the other pleas relied on.

(see paras 106-108, 112, 115)

See: 188/73 Grassi v Council [1974] ECR 1099, para. 13; 195/80 Michel v Parliament [1981] ECR 2861, para. 22; 111/86 Delauche v Commission [1987] ECR 5345, para. 13; C-343/87 Culin v Commission [1990] ECR I-225, paras 13 and 15; C-115/92 P Parliament v Volger [1993] ECR I-6549, para. 23; T-52/90 Volger v Parliament [1992] ECR II-121, paras 36 and 40; T-25/92 Vela Palacios v ESC [1993] ECR II-201, para. 25; T-351/99 Brumter v Commission [2001] ECR-SC I-A-165 and II-757, paras 33 and 34; T-117/01 Roman Parra v Commission [2002] ECR-SC I-A-27 and II-121, paras 26 and 32; T-338/00 and T-376/00 Morello v Commission [2002] ECR-SC I-A-301 and II-1457, para. 48; T-241/02 Callebaut v Commission [2003] ECR-SC I-A-215 and II-1061, para. 42

6.     The time-limits for lodging complaints and bringing proceedings 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.

The admissibility of an action before the Court of First Instance under Article 236 EC and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner, and upon the prescribed time-limits for that procedure being complied with.

Only the existence of new and material facts may justify the submission of a claim seeking reconsideration of a final decision which was not challenged within the time-limits laid down.

The subsequent discovery by an applicant of an already existing plea or factor cannot, in principle, be treated as a new fact capable of justifying the reopening of time-limits, without destroying the principle of legal certainty.

(see paras 124-127)

See: 122/79 and 123/79 Schiavo v Council [1981] ECR 473, para. 22; 127/84 Esly v Commission [1985] ECR 1437, para. 10; 161/87 Muysers and Tülp v Court of Auditors [1988] ECR 3037, para. 11; C-246/95 Coen [1997] ECR I-403, para. 21; T-34/91 Whitehead v Commission [1992] ECR II-1723, para. 18; T-45/93 Branco v Court of Auditors [1994] ECR-SC I-A-197 and II-641, para. 22; T‑506/93 Moat v Commission [1995] ECR-SC I-A-43 and II-147, para. 28; T‑16/97 Chauvin v Commission [1997] ECR-SC I-A-237 and II-681, para. 37; T‑147/96 Batho v Commission, not published in the ECR, para. 46; T‑142/00 Van Huffel v Commission [2001] ECR-SC I-A-219 and II-1011, para. 36