JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

1 February 2007

Case F-42/05

Francisco Rossi Ferreras

v

Commission of the European Communities

(Officials – Appraisal – Career development report – 2003 appraisal exercise – Action for annulment – Action for damages)

Application: brought under Articles 236 EC and 152 EA, in which Mr Rossi Ferreras seeks annulment of his career development report drawn up on 22 July 2004 for the period from 1 January to 31 December 2003, and an order for the Commission to compensate for the harm he claims to have suffered.

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

Summary

1.      Officials – Reports procedure – Staff report – Judicial review – Limits

(Staff Regulations, Art. 43)

2.      Officials – Actions – Action for compensation for damage caused by an act not in the nature of a decision

(Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Conditions for admissibility – Matter of public policy

(Staff Regulations, Arts 90 and 91)

1.      Review by the Community judicature of the content of staff reports is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers.

(see para. 33)

See:

T-18/93 Marcato v Commission [1994] ECR-SC I‑A‑215 and II‑681, para. 45; T-179/02 Pflugradt v ECB [2003] ECR-SC I‑A‑149 and II‑733, para. 46

2.      Under Articles 90 and 91 of the Staff Regulations an action for compensation for damage caused by an act not in the nature of a decision, such as workplace harassment, must be preceded by an administrative procedure in two phases. First, the person concerned must submit to the appointing authority a request, within the meaning of Article 90(1) of the Staff Regulations, asking the administration to make good that damage. It is only the express or implied rejection of that request which constitutes a decision having an adverse effect against which a complaint may be directed, and it is only after a decision expressly or implicitly rejecting that complaint that an action for damages may be brought before the Court of First Instance.

(see paras 58-61)

See:

200/87 Giordani v Commission [1989] ECR 1877, para. 22

T-79/92 Ditterich v Commission [1994] ECR-SC I‑A‑289 and II‑907, para. 41 and the case-law cited therein; T-194/00 Antas de Campos v Parliament [2002] ECR-SC I‑A‑59 and II‑279, para. 72; of 8 July 2004 in T-200/02 Tsarnavas v Commission, not published in the ECR, para. 48; F-3/05 Schmit v Commission [2006] ECR-SC I‑A‑1‑9 and II‑A‑1‑33, para. 48

3.      The rules laid down in Articles 90 and 91 of the Staff Regulations are a matter of public policy and cannot be left to the parties or to the courts to apply. Consequently, the fact that an institution did not, in a decision expressly rejecting a complaint, raise the inadmissibility of a claim for damages included in that complaint neither precludes the administration from being able to put forward a plea of inadmissibility at the litigation stage, nor exempts the Court from the obligation to verify whether Articles 90 and 91 of the Staff Regulations have been observed.

(see para. 62)

See:

T-209/99 Hoyer v Commission [2002] ECR-SC I‑A‑243 and II‑1211, para. 47