JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

10 June 2004

Joined Cases T-153/01 and T-323/01

Mercedes Alvarez Moreno

v

Commission of the European Communities

(Officials – Member of the auxiliary staff – Conference interpreter – Article 74 of the Conditions of Employment of Other Servants – Termination of employment)

Full text in French II - 0000

Application:         for, first, annulment of the Commission’s letters of 13 and 23 February 2001 informing the applicant that it was no longer possible to engage conference interpreters of more than 65 years of age and, second, damages.

Held:         The application in Case T-153/01 is dismissed as inadmissible. In Case T-323/01 the decision of 23 February 2001 is annulled. The remainder of the application in Case T-323/01 is dismissed. The parties are ordered to bear their own costs in Case T-153/01. The Commission is ordered to pay all the costs in Case T‑323/01.

Summary

1.     Officials – Actions – Act adversely affecting an official – Definition – Letter construed as a refusal to engage a freelance conference interpreter in future as a member of the auxiliary staff under Article 78 of the Conditions of Employment of Other Servants

(Staff Regulations, Art. 91)

2.     Officials – Conditions of Employment of Other Servants – Auxiliary staff – Freelance interpreters covered by Article 78 of the Conditions of Employment of Other Servants – Stipulation of age limit not essential for contracts limited to specific days – Article 74 of the Conditions of Employment of Other Servants not applicable

(Conditions of Employment of Other Servants, Arts 74 and 78)

3.      Officials – Actions – Action for damages brought without a pre-litigation procedure consistent with the Staff Regulations – Inadmissibility

(Staff Regulations, Arts 90 and 91)

4.     Officials – Non-contractual liability of the institutions – Administrative fault – Incorrect interpretation of a provision of the Staff Regulations not in itself an administrative fault

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

(Staff Regulations, Art. 91)

1.     Only measures producing binding legal effects of such a kind as to affect the applicant’s interests directly and immediately by bringing about a distinct change in his position constitute acts or decisions against which an action for annulment may be brought.

That is true of a letter sent by the administration, in reply to an application, to a person previously awarded contracts as a freelance conference interpreter under Article 78 of the Conditions of Employment of Other Servants, which, while it does not refer to the specific situation of the individual concerned, must objectively be interpreted as expressing the institution’s refusal to engage that person again because of his age.

(see paras 56, 61-62)

See: T-562/93 Obst v Commission [1995] ECR-SC I‑A-247 and II-737, para. 23; T-87/99 Hendrickx v Cedefop [2000] ECR-SC I-A-147 and II-679, para. 37

2.     It is clear from reading the first and third paragraphs of Article 78 of the Conditions of Employment of Other Servants in conjunction that the provisions of Title III of those conditions apply to auxiliary staff engaged as conference interpreters and recruited pursuant to that article only in so far as they constitute conditions which are not covered by the conditions of recruitment and remuneration laid down in the agreement concluded pursuant to the first paragraph.

In the case of a contract limited to specific days, termination of employment is a characteristic and necessary condition of the recruitment of the interpreter and forms an integral part of that recruitment. It follows that Article 74 of the Conditions of Employment of Other Servants concerning the situations in which the employment of auxiliary staff ceases has to be one of the provisions of Title III of the Conditions of Employment of Other Servants from which the rules applicable to auxiliary session interpreters derogate.

Furthermore, taking account of the particular nature of the employment of those interpreters, their age cannot be relevant for the performance of their duties, so that their employment should have an age limit which, in the absence of any specific provision, should be that laid down by Article 74 of the Conditions of Employment of Other Servants.

(see paras 82, 84-86, 89)

3.     In the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which is an independent remedy by comparison with the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure consistent with the provisions of the Staff Regulations. That procedure differs according to whether the harm in respect of which reparation is sought results from an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations or conduct on the part of the administration which is not in the nature of a decision.

In the former case, the person concerned must submit a complaint against the act in question to the appointing authority within the prescribed period. In the latter case, on the other hand, the administrative procedure must commence with the introduction of a request within the meaning of Article 90(1) of the Staff Regulations for reparation and, where appropriate, be followed by a complaint against the decision rejecting the request.

Where there is a direct link between an action for annulment and an action for damages, the latter is admissible as ancillary to the action for annulment, without necessarily having to be preceded both by a request from the person concerned to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of that request. However, where the damage alleged does not stem from an act whose annulment is sought, but from several wrongful acts or omissions alleged against the administration, it is imperative that the pre-litigation procedure should be initiated by a request that the appointing authority compensate for that damage.

(see paras 99-100, 102)

See: T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841, para. 46; T-500/93 Y v Court of Justice [1996] ECR-SC I‑A‑335 and II-977, paras 64 and 66

4.     The adoption by the administration of an incorrect interpretation of a provision of the Staff Regulations and, by analogy, of the Conditions of Employment of Other Servants does not in itself constitute an administrative fault.

(see para. 105)

See: 79/71 Heinemann v Commission [1972] ECR 579, para. 11; T-94/92 X v Commission [1994] ECR-SC I-A-149 and II‑481, para. 52

5.     The annulment of the contested act may in itself constitute appropriate and, in principle, sufficient reparation for any non-material harm which the applicant may have suffered. Therefore, the annulment of a decision of an institution no longer to recruit auxiliary conference interpreters of over 65 years of age which does not include any negative appraisal of the applicant’s abilities must be regarded as appropriate reparation for the non-material harm which the applicant may have suffered.

(see para. 106)

See: C-343/87 Culin v Commission [1990] ECR I-225, paras 25 to 29; T-60/94 Pierrat v Court of Justice [1995] ECR-SC I-A-23 and II-77, para. 62