JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

8 July 2004

Case T-136/03

Robert Charles Schochaert

v

Council of the European Union

(Officials – Action for damages – Refusal of promotion – Emotional harassment – Duty of assistance)

Full text in French II - 0000

Application:         for damages in respect of the material and non-material harm allegedly suffered by reason of the Council’s repeated refusal to promote the applicant to Grade B 1 and in respect of alleged emotional harassment.

Held:         The application is dismissed. Each party is to bear its own costs.

Summary

1.     Officials – Actions – Action for damages – Separate from action for annulment – Limits

(Staff Regulations, Arts 90 and 91)

2.     Officials – Actions – Action for damages – Annulment of the contested unlawful act – Adequate compensation for non-material damage

(Staff Regulations, Art. 91)

3.     Officials – Administration’s duty to render assistance – Scope

(Staff Regulations, Art. 24)

1.     Since Articles 90 and 91 of the Staff Regulations make no distinction, as regards either the administrative or the contentious procedure, between an action for annulment and an action for damages, the person concerned is at liberty, in view of the independence of the different remedies, to choose either one or the other, or both together, on condition that he brings his action within the period of three months after the rejection of his complaint.

An exception has been made to the principle of the independence of remedies where the action for damages is closely linked to an action for annulment. Although a party may take action by means of a claim for damages without being obliged to seek the annulment of the unlawful measure which caused him damage, he may not by this means circumvent the inadmissibility of an application which concerns the same illegality and has the same financial ends in view.

There is accordingly no independence of remedies where an action for damages that relates exclusively to reparation for material loss, such as the loss of additional income which the interested party would have received if he had been promoted, which would not have occurred if an action for annulment, brought at the proper time, had been successful. Thus, the interested party who failed to contest the measures which are alleged to have adversely affected him, at the proper time, cannot repair that omission and procure himself further time by bringing proceedings by means of a claim for damages.

(see paras 24-26)

See: 59/65 Schreckenberg v Commission of the EAEC [1966] ECR 543, 550; 4/67 Collignon v Commission [1967] ECR 365, 373; 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, paras 10 and 11; T-27/90 Latham v Commission [1991] ECR II-35, paras 36 and 37; T-156/89 Valverde Mordh v Court of Justice [1991] ECR II-407, para. 144; T-20/92 Moat v Commission [1993] ECR II-799, para. 46; T‑59/96 Burban v Parliament [1997] ECR-SC I-A-109 and II-331, paras 25, 26 and 27; T-101/98 and T-200/98 Stodtmeister v Council [2000] ECR‑SC I-A-177 and II-807, para. 38

2.     The annulment of an act of the administration which has been challenged by an official in itself constitutes appropriate and, in principle (that is to say, in the absence from that act of any expressly negative assessment of the applicant’s abilities likely to cause him damage), sufficient reparation for any non-material harm which the applicant may have suffered by reason of the annulled act.

(see para. 34)

See: T-60/94 Pierrat v Court of Justice [1995] ECR-SC I-A-23 and II-77, para. 62; T-328/01 Robinson v Parliament [2004] ECR-SC I-A-5 and II-23, para. 79

3.     By virtue of the duty to render assistance imposed upon it by Article 24 of the Staff Regulations, the administration, when faced with an incident which is incompatible with the good order and tranquillity of the service, must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and taking the appropriate action in full knowledge of the facts. To that end, it is sufficient that the official who is seeking the protection of his institution provide at least some evidence of the reality of attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.

(see para. 49)

See: 224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16; T‑5/92 Tallarico v Parliament [1993] ECR II-477, para. 31; T-136/98 Campogrande v Commission [2000] ECR-SC I-A-267 and II-1225, para. 42