61991B0072

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1. Officials ° Actions ° Subject-matter ° Issue of directions to the administration ° Inadmissibility

(Staff Regulations, Art. 91)

2. Officials ° Actions ° Prior administrative complaint ° Time-limits ° Matter of public policy ° Action brought before complaint rejected ° Inadmissibility

(Staff Regulations, Arts 90 and 91)

3. Officials ° Actions ° Action for damages ° Pleas in law ° Legality of a decision of the appointing authority not challenged within the time-limit ° Inadmissibility

(Staff Regulations, Arts 90 and 91)

4. Officials ° Actions ° Action for damages brought without the pre-litigation procedure prescribed by the Staff Regulations having been followed ° Inadmissibility

(Staff Regulations, Arts 90 and 91)

In Case T-72/91,

Andrew Macrae Moat, an official of the Commission of the European Communities, residing in Brussels, represented by Eric Moons, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Lucy Dupong, 14a Rue des Bains,

applicant,

v

Commission of the European Communities, represented by Thomas F. Cusack, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for an order that the applicant be promoted to grade A 3, that he be paid a salary corresponding to that grade with effect retroactively from 1 December 1986 and that the Commission of the European Communities pay damages,,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: R. García-Valdecasas, President, R. Schintgen and C.P. Briët, Judges,

Registrar: H. Jung,

makes the following

Order

1 The applicant, Andrew Macrae Moat, is an official of the Commission in grade A 4. On the basis of the fact that since 1981 all his staff reports have been complimentary about his management ability and recommend that he be promoted, he considers that he may legitimately expect to be promoted or transferred.

2 The applicant states that on 9 August 1990 he discovered that his staff reports for the period after 30 June 1985 had not been placed on his personal file. By letter of 10 August 1990, in his capacity as a member of the Staff Committee, he brought that fact to the attention of the Secretary General of the Commission and questioned the validity of a number of appointments that had been made in the meantime.

3 By letter of 29 October 1990 the Secretary-General of the Commission replied to the letter of 10 August 1990. In that reply he admitted that there had been a delay in the filing of documents in personal files, but stated that the situation was improving. He added that the Director-General, who was responsible for the applicant' s staff reports, was at all times in a position to appraise the applications for posts submitted by the applicant. Similarly, the Advisory Committee on Appointments had Mr Moat' s curriculum vitae and was in a position to examine his applications in comparison with those from other candidates. The applicant states that he received that letter, dated 29 October 1990, only in the month of January 1991.

4 It should be noted that at the end of October or beginning of November 1990, the head of DG IV D/4 was appointed an adviser in DG IV. The head of DG IV A/4 was transferred to the post of head of DG IV D/4. The applicant states that at that time he considered that he was qualified to hold the post of DG IV D/4.

5 On 14 February 1991 the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities, which was registered on 18 February 1991. The complaint was directed against:

"1. the failure to publish the vacancies as an adviser in DG IV and as head of the unit DG IV D/4;

2. the failure to publish anticipatively the impending vacancy as head of the unit DG IV A/3;

3. an illegal interpretation of the Commission' s decision of 11 May 1989 delegating certain powers to directors-general, or the illegality of that decision, as the case might be;

4. the failure to publish, or to publish anticipatively, in consequence of the said illegal interpretation or illegality, any other posts for which the complainant is apt and of which the complainant had no knowledge as a result of such a failure to publish;

5. the failure to pay attention to his requests for mobility and to find or offer him a post that will allow him best to use his capacities in the interest of the institution."

In that complaint the applicant describes the manner in which he says the post of head of DG IV D/4, a post which he considers himself qualified to hold, was filled. Under the heading "legal assessment" he refers to Article 4 of the Staff Regulations and to a Commission decision of 19 September 1988 on the filling of middle management posts, under which all vacancies must be advertised. He submits that those provisions were infringed in this case. He further states that a Commission decision of 11 May 1989 under which certain powers were delegated to directors-general is unlawful in so far as it is incompatible with the decision of 19 September 1988 and with certain provisions of the Staff Regulations. The applicant concludes by requesting the Commission to:

"1. annul all the nominations since 11 May 1989 to posts as head of unit which the complainant might have felt himself sufficiently qualified for and interested in to have presented his candidature, and which were not preceded by the publication of a vacancy notice, and publish those vacancies;

2. take account urgently, in its decisions on how to fill these or any other vacancies, of the complainant' s capacities and wish for mobility, in order that the complainant may use these capacities to his satisfaction and in the best interests of the Commission during the three years and 11 months of active service that remain to him;

3. compensate the complainant for the stress that it has caused him by its failure to pay attention to his staff reports and by its illegal acts and the necessity to contemplate this complaint about them, and for the possibilities of promotion or of transfer of which he has been thereby deprived."

6 By letter of 14 March 1991 the applicant submitted a request pursuant to Article 90(1) of the Staff Regulations. By error, that request was registered on 20 March 1991 as a complaint and not as a request. In his statement of the background to the request, the applicant points out first of all that his staff reports had not been placed on his personal file; he refers to his letter of 10 August 1990 to the Secretary-General of the Commission and to the latter' s reply. The applicant then refers to two judgments of the Court of First Instance of 24 January 1991 (Cases T-63/89 and T-27/90 Latham v Commission [1991] ECR II-19 and II-35) and states that in those cases the Court of First Instance awarded the applicant exemplary damages, perhaps in order to encourage the Commission to "put its house in order". The applicant considers that he is also entitled to the award of such damages. He states that he does not seek the annulment of the various appointments that have been made. He concludes by requesting the Commission to pay him BF 150 000 as damages for its failure to maintain his personal file as required by the Staff Regulations and its failure to consider his applications for various posts.

7 By letter of 9 April 1991 the applicant submitted a second request pursuant to Article 90(1) of the Staff Regulations in which he requests the Commission to promote him to grade A 3. He refers in particular to the fact that in various staff reports his directors recommended that he be promoted.

8 On 25 April 1991 the applicant sent the administration a letter containing a request pursuant to Article 90(1) and a complaint pursuant to Article 90(2) of the Staff Regulations.

In the request he asks for information concerning the consultation and appraisal of his personal file and details of internal appointment procedures.

In the complaint he points out once again that his staff reports, which were complimentary, were not placed on his personal file at the proper time and adds that he suspects that on the various occasions on which he applied for posts his staff reports were never consulted by his superiors, which explains why his candidacy was never successful.

The applicant concludes in the following terms:

"The complainant does not ask the Commission to cancel all the appointments since 1981 for which he was a candidate and concerning which his staff reports were not consulted, even though he might have the legal right to do so - he does not wish so to disrupt the service. He does, however, reserve the right to ask for the cancellation of one such appointment, should the Director-General concerned, having been appraised of his staff reports, be of the opinion that he was (and, to be practical, still is) a suitable candidate, and in the event that the Commission does not give a favourable response to his request pursuant to Article 90(1), dated 9 April 1991, for promotion.

The complainant also requests compensation both for the material damage he has suffered and for the 'préjudice moral' . The amount requested he leaves to be specified later after all the relevant facts are known."

9 On 19 July 1991 the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations against the implied rejection of his request dated 14 March 1991.

10 On 13 August 1991 the applicant submitted a further complaint pursuant to Article 90(2) of the Staff Regulations against the implied rejection of his request dated 9 April 1991.

11 The applicant received no reply to his requests and complaints.

12 By application lodged on 9 October 1991 at the Registry of the Court of First Instance the applicant therefore brought these proceedings.

13 The applicant claims that the Court of First Instance should:

1. declare the present application admissible and well founded;

2. order the Commission to promote the applicant to grade A 3;

3. order the Commission urgently to transfer the applicant to duties that will enable him to serve the Commission to the Commission' s and his own satisfaction for the remainder of his career;

4. order the Commission either to pay the applicant a salary and pension as if he had been promoted on 1 December 1986, with interest from that date, or to pay him the net present value of the difference between such a salary and pension and his present salary and pension, which sum should be calculated actuarially on his expectation of life and the effective date of the Commission' s action pursuant to the Court' s ruling on point 2 above;

5. order the Commission to compensate the applicant for the stress that it has caused him by its failure to pay attention to his reports and by its illegal acts and the necessity to contemplate his complaints and this application about them; this 'préjudice moral' can be fixed ex aequo et bono at BF 750 000;

6. sanction the Commission for its infringement of Article 54(1) of the Staff Regulations [it would appear that Article 4(1) is meant] and of Article 43, inasmuch as no reasonable time limit was respected, and, therefore, also Article 26, and to pay the applicant exemplary damages estimated ex aequo et bono at BF 250 000.

14 In support of his application the applicant states as a preliminary point that his application takes into account all his prior requests and complaints, as described above. He considers, first of all, that the Commission has not complied with its obligation to ensure that staff reports are placed on an official' s personal file within a reasonable period, and submits that that failure constitutes an infringement of Articles 26 and 43 of the Staff Regulations. Secondly, he considers that the Commission' s attitude, refusing to promote him or transfer him and failing to state the grounds for that refusal, constitutes an infringement of Article 25 of the Staff Regulations. Thirdly, the applicant states that since 11 May 1989 the Commission has no longer published vacancy notices for posts of head of unit and argues that that practice constitutes an infringement of Article 4 of the Staff Regulations and of the Commission Decision of 19 September 1988 on the filling of middle management posts.

15 The Commission has not submitted a defence to the substance of the case but has raised an objection of inadmissibility, which was lodged at the Registry of the Court of First Instance on 20 November 1991. In its objection the Commission claims that the Court of First Instance should:

1. rule on the admissibility of the application in accordance with its powers under Article 114 of its Rules of Procedure;

2. declare the application inadmissible;

3. make the appropriate order as to costs.

16 The applicant submitted observations, lodged at the Court Registry on 20 January 1992, in which he submitted that the objection of inadmissibility should be dismissed.

Admissibility

17 Under Article 111 of its Rules of Procedure, where it is clear that the Court of First Instance has no jurisdiction to take cognizance of an action or where the action is manifestly inadmissible, the Court of First Instance may give a decision by reasoned order without taking further steps in the proceedings. In this case the Court considers that it has obtained sufficient information from the documents before it and holds that there is no need to take further steps in the proceedings.

Arguments of the parties

18 In support of its objection of inadmissibility the defendant submits that the Court has no jurisdiction to hear the application.

19 As regards the applicant' s second and third heads of claim, the defendant submits that the orders which the applicant requests the Court to make in relation to the Commission exceed the jurisdiction conferred on it by the Council Decision of 24 October 1988 establishing the Court of First Instance and by Article 179 of the EEC Treaty. No claim is made for the annulment of any act of the Commission having legal consequences for the applicant or adversely affecting him. Consequently, the claim that the Commission be ordered to promote the applicant to grade A 3 is inadmissible.

20 As regards the applicant' s fourth and fifth heads of claim, concerning relief in the form of monetary compensation, the defendant submits that the Court of First Instance has unlimited jurisdiction only where there is a dispute within the meaning of the first sentence of Article 91(1) of the Staff Regulations. Since the applicant' s claim seeking an order that he be promoted is manifestly inadmissible, it follows that the Court of First Instance has no jurisdiction to hear the claim for monetary compensation, which the applicant himself expressly links to the fact that he has not been promoted or transferred.

21 As regards the applicant' s sixth head of claim, concerning a further claim for monetary compensation which is linked not to the fact that the applicant has not been promoted but to the fact that his personal file has not been properly maintained, the defendant draws a distinction between two hypotheses, that is to say where the claim for monetary compensation is closely linked to a claim for annulment and where there is no such link. In the absence of any claim for annulment the present case falls within the second hypothesis. Consequently, the admissibility of the claim is subject to compliance with the pre-contentious administrative procedure laid down in Articles 90 and 91 of the Staff Regulations. In that regard, the defendant reviews the four complaints and two requests submitted by the applicant and makes the following observations:

As regards the complaint dated 14 February 1991, which was registered on 18 February 1991, the Commission points out that since no reply was given, the complaint was impliedly rejected on 18 June 1991. The period for bringing proceedings before the Court of First Instance therefore expired on 18 September 1991. Consequently, in so far as it pursues the same object as that complaint, the application to the Court, which was lodged on 9 October 1991, is out of time.

As regards the complaint of 19 July 1991, the Commission observes that its substance, as expressed in the request of 14 March 1991, is the same as that of the application to the Court in so far as it concerns a claim for monetary compensation to make good the harm suffered as a result of the fact that the applicant' s applications for other posts were not seriously considered. On the date on which the application to the Court was lodged, that is to say 9 October 1991, the administration had not replied to the complaint. However, at that time the four-month period allowed for a reply had not yet expired. Consequently, there had been no implied refusal. In so far as it pursues the same object as the complaint of 19 July 1991 the application to the Court is therefore premature.

As regards the complaint of 13 August 1991, the Commission observes that it refers to a request of 9 April 1991 which is identical to the substance of the present application to the Court in so far as it concerns the fact that the applicant has not been promoted to grade A 3. No reply has yet been made to that complaint either. Since the period allowed for the reply expired only in mid-December 1991, on the date on which the application was submitted to the Court there was not yet any implied decision rejecting the complaint. Accordingly, in so far as it is based on the same grievances as those set out in the complaint of 13 August 1991, the application is also premature.

As regards the letter of 25 April 1991, the Commission observes that it comprises both a request and a complaint. In the request, the applicant seeks information concerning his personal file and internal appointment procedures. The complaint is directed at the Commission' s failure to take account of his requests for transfers and its failure to promote him to grade A 3. According to the Commission, this complaint may also be regarded as a claim for monetary compensation in an unspecified amount. However, the complaint is not directed against the refusal of a request for monetary compensation, and its admissibility is therefore dubious in the light of the case law of the Court of First Instance (judgment in Case T-5/90 Marcato v Commission [1991] ECR II-000).

In view of the foregoing, the defendant states that the applicant' s sixth head of claim must also be declared inadmissible.

22 In his observations on the objection of inadmissibility the applicant admits that his application to the Court was lodged out of time as regards his complaint of 14 February 1991. He states that he sent a note on the matter to the Secretary-General of the Commission on 1 October 1991.

23 He nevertheless raises four arguments in support of the admissibility of the application as regards the grievances pursued in the first complaint. First of all, the applicant states that the Commission had led him to understand that he would receive a reply to his complaint and that he therefore delayed bringing proceedings. The Commission is thus estopped from now arguing that the application is out of time. Secondly, the applicant states that it is not in the public interest that the Commission should take a dilatory approach and lead potential applicants to bring proceedings hurriedly or too late, and it is not entitled deliberately to withhold its reply to a complaint or to give its reply after an application to the Court had been made. Thirdly, the applicant states that it is not in the public interest that an official should be constrained to put his personal relations with the institution employing him before his duties as an official. Fourthly, the applicant argues that the apparent contradiction between two Commission decisions of general application implementing the Staff Regulations and between one of those decisions and the Staff Regulations themselves is a question which must be resolved as soon as possible by the Court.

24 As regards the complaints of 19 July 1991 and 13 August 1991, the applicant concedes that his application to the Court was premature. He states that he will submit an application in the proper form later, and suggests that the Court join the different proceedings.

25 As regards the complaint of 25 April 1991, he states that it was directed against the failure to keep his personal file in order as required by the Staff Regulations, inasmuch as his staff reports were late and were not placed on his file within a reasonable period, against the failure to consider his applications for a transfer or promotion seriously, against the failure to take account of his requests for transfers and against the failure to promote him to grade A 3.

26 The applicant goes on to argue that the Court of First Instance does have jurisdiction to hear this application, since a claim for an examination of the legality of various acts adversely affecting the applicant has been made and the claims for monetary compensation are closely linked to it. He argues in that regard that an act adversely affecting an official may be either a positive act or an omission, and the failure to keep the personal file of an official in order is an act of omission which adversely affects that official when he applies for a transfer or promotion.

27 He refers to the relevant case law, in particular the judgment of the Court of First Instance in Case T-27/90 Latham v Commission, cited above, in which the Commission was ordered, quite independently of any annulment of its decision, to pay damages to the applicant for failure to comply with its own rules.

28 The applicant points out that as a result of the Commission' s neglect he has been denied various opportunities for the development of his career; he concludes by requesting the Court of First Instance to declare the application admissible or, if the application be inadmissible, nevertheless to order the Commission to pay damages estimated ex aequo et bono at BF 250 000 for its failure to comply with Articles 43, 45 and 26 of the Staff Regulations.

Legal assessment

29 As regards the applicant' s second and third heads of claim, which seek to obtain an order directing the Commission to promote him or transfer him, it is settled law that the Community courts cannot, without encroaching upon the prerogatives of the appointing authority, order a Community institution to take specific measures concerning the position of an official under the Staff Regulations or the general organization of its services. That principle is equally applicable in an action for damages (see the judgments of the Court of First Instance in Cases T-45/90 Speybrouck v Parliament [1992] ECR II-000, at paragraphs 30 to 32; T-163/89 Sebastiani v Parliament [1991] ECR II-000, at paragraph 21; and T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-000, at paragraph 150).

30 Accordingly, the applicant cannot apply for an order directing the Commission to grant him promotion to grade A 3 or a transfer to another post. The requests made in the applicant' s second and third heads of claim are therefore inadmissible.

31 Furthermore, and in any event, the Court would point out that the claims for the applicant' s promotion cannot be considered in these proceedings. Those claims are made expressly in the request lodged on 9 April 1991 pursuant to Article 90(1) of the Staff Regulations and repeated in the complaint of 13 August 1991, which is directed against the implied rejection of the request of 9 April 1991. As the defendant correctly stated, the application is premature in so far as it concerns the same substance as the complaint of 13 August 1991 because on the date on which these proceedings were brought, 9 October 1991, the period allowed for a reply to that complaint had not yet expired. Since an application to the Court before the pre-contentious procedure has been completed by an express or implied decision is premature and therefore inadmissible under Article 91(2) of the Staff Regulations (see the judgment of the Court of First Instance in Joined Cases T-47 and T-82/89 Marcato v Commission [1990] ECR II-231), the applicant' s claims must in any event be declared inadmissible in so far as they correspond to the requests made in his letter of 9 April 1991.

32 As regards the applicant' s fourth head of claim, concerning his claim that the defendant be ordered to pay him a salary and a pension corresponding to the amounts which he would have received if he had been promoted, which has no independent existence and is closely linked to the second and third heads of claim which precede it, the Court observes that, as the Court of Justice has held, "the first sentence of Article 91(1) governs the second so that this provision only confers unlimited jurisdiction on the Court where there is a dispute within the meaning of the first sentence" (judgment in Case 32/68 Grasselli v Commission [1969] ECR 505, at paragraph 10). This Court must also point out that the applicant, who failed to contest the measures which are alleged to have adversely affected him by bringing proceedings to annul them at the proper time, cannot repair that omission and, as it were, procure himself further time for bringing proceedings by means of a claim for compensation.

33 It follows that the claim for compensation contained in the applicant' s fourth head of claim is also inadmissible.

34 As regards the applicant' s fifth head of claim, the Court observes that the claim for monetary compensation contained in it has no independent existence, since it relates to the applicant' s claims for promotion or transfer to another post, which are the subject matter of his second and third heads of claim. Consequently, this claim, like that contained in the fourth head of claim, must also be declared inadmissible.

35 Furthermore, and in any event, the Court would point out that the applicant' s claim for an order that the Commission pay him damages for the stress which it caused him by failing to take into consideration his staff reports cannot be considered in these proceedings. That request was already the subject matter of the complaint of 14 February 1991, referred to above. It must therefore be concluded that in so far as it has the same subject matter as that complaint this application is out of time and therefore inadmissible. The period for bringing proceedings before the Court of Justice following that complaint, which was submitted on 14 February 1991 and registered on 18 February 1991, expired three months after its implied rejection on 18 June 1991, that is to say 18 September 1991. Since the time-limits for submitting a complaint and bringing proceedings before the Court are a matter of public policy, the arguments put forward by the applicant to explain or justify the fact that his application to the Court is out of time in so far as it concerns the same subject matter as the complaint of 14 February 1991 must be rejected (see in particular the judgments of the Court of First Instance in Case T-129/89 Offermann v Parliament [1991] ECR II-000 and Case T-54/90 Lacroix v Commission [1991] ECR II-000 and the order in Case T-38/91 Coussios v Commission [1991] ECR II-000). No new fact has subsequently arisen, and the periods for bringing proceedings have therefore not been reopened. Consequently, none of the grievances set out in the complaint of 14 February 1991 can be considered in these proceedings.

36 As regards the applicant' s sixth head of claim, which concerns the failure to publish various vacancy notices (infringement of Article 4 of the Staff Regulations), the failure to keep up his personal file properly (infringement of Article 43 of the Staff Regulations) and the fact that his personal file did not contain his staff reports for the period after 1985 (infringement of Article 26 of the Staff Regulations), the Court observes that this is a claim for compensation which is not linked to any application for annulment. The fact that no application for annulment has been made is not in itself sufficient to rule out a claim for compensation, however, since the action for annulment and the action for compensation are independent proceedings. In accordance with that principle, the person concerned may choose either remedy or both, so long as he brings the matter before the Court within three months after the rejection of his complaint (see the judgments of the Court of First Instance in Cases T-63/89 and T-27/90 Latham v Commission, cited above, and the order in Case T-29/91 Castelletti v Commission [1992] ECR II-000, at paragraph 30). Accordingly, in order to determine whether the applicant' s sixth head of claim is admissible it is necessary to consider whether the pre-contentious procedure provided for in Article 90 and 91 of the Staff Regulations was followed in relation to the claim in issue.

37 It follows from the considerations set out above that the complaints of 14 February 1991 and 13 August 1991 cannot be taken into account. All the grievances stated in them must therefore be excluded from these proceedings. The same is true of the complaint of 19 July 1991, since the period available to the administration for its reply had not yet expired on 9 October 1991, the date on which these proceedings were brought. The action is therefore also inadmissible in so far as it concerns the same subject matter as the complaint of 19 July 1991, which is based on the applicant' s request of 14 March 1991.

38 As regards the document submitted on 25 April 1991, a distinction must be drawn between the portion which constitutes a request and the portion which constitutes a complaint. Only the complaint can be taken into consideration, since the grievances set out in the request must, before being brought before the Court, be made the subject of a complaint in order to comply with the pre-contentious procedure provided for in Articles 90 and 91 of the Staff Regulations. It is therefore necessary to consider the content of the complaint of 25 April 1991.

39 In that complaint, the applicant expressly states that he does not request the annulment of any measure but confines himself to requesting damages in compensation for the harm which he considers himself to have suffered as a result of the administration' s unlawful acts and omissions.

40 Where, as in this case, an action before the Court seeks compensation for harm alleged to have been caused by conduct which, because it had no legal effects, cannot be described as an act or acts adversely affecting the official, the administrative procedure must commence, in accordance with Article 90(1) of the Staff Regulations, with a request submitted by the person concerned asking the appointing authority to make good that harm. It is only against a decision rejecting that request that the person concerned may submit a complaint to the administration in accordance with Article 90(2) (see the judgment of the Court of First Instance in Case T-5/90 Marcato v Commission, cited above).

41 In this case the administrative procedure did not follow the normal course laid down in mandatory terms by the Staff Regulations. That is to say, the complaint of 25 April 1991 was not directed against a refusal by the appointing authority to accede to a prior request seeking compensation for the alleged harm. It must therefore be concluded that the claim for compensation made by the applicant has not followed the correct pre-contentious procedure. Accordingly, as the Courts have consistently held (see most recently the order of the Court of First Instance in Case T-64/91 Marcato v Commission [1992] ECR II-000, at paragraph 34 and 35), it cannot be upheld.

42 The applicant' s sixth head of claim is therefore also inadmissible.

43 It follows from all the foregoing considerations that the action must be dismissed as inadmissible in its entirety.

Costs

44 Under Article 87(2) of the Rules of Procedure of the Court of First Instance the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. However, according to Article 88 of the Rules of Procedure, in proceedings between the Communities and their servants the institutions are to bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby orders:

1. The action is dismissed as inadmissible.

2. The parties are ordered to bear their own costs.

Luxembourg, 22 May 1992.