JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

17 March 1998

Case T-183/95

Giuseppe Carraio

v

Commission of the European Communities

‛Officials — Article 24 of the Staff Regulations — Duty to provide assistance — Implied rejection’

Full text in Italian   II-329

Application for:

first, annulment of the implied decision of the Commission rejecting the request for assistance lodged by the applicant on 28 July 1994 and, secondly, for compensation.

Decision:

Annulment; remainder of the application dismissed.

Abstract of the Judgment

The applicant, an official at the Joint Research Centre (JRC) at Ispra, was responsible for monitoring the work on a building, entrusted to an outside undertaking (the successful tenderer), and checking that the relevant expenditure was lawful. On finding what he considered to be technical and accounting errors, he warned the JRC authorities. On 20 June 1994 the legal representative of the successful tenderer submitted a counterargument which the applicant considered to contain defamatory remarks about him.

On 28 July 1994 the applicant submitted a request for assistance pursuant to the first paragraph of Article 24 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

The applicant also lodged a complaint with the Italian national authorities, seeking a declaration that the statement was defamatory.

In the absence of a reply from the appointing authority, the applicant lodged on 24 February 1995 a complaint pursuant to Article 90(2) of the Staff Regulations.

By letter of 13 June 1995 the Commission informed the applicant that, following an internal inquiry, it had become apparent that it was necessary to engage an independent expert to draw up an additional technical accounting report. On 4 October 1995 the applicant brought the present proceedings. In the light of the results of the expert's report, the Commission informed the applicant by letter of 22 May 1996 that it had decided not to act on his request for assistance.

Admissibility of the claim for annulment

The Commission's failure to reply by the end of the four-month period from the date on which the complaint was lodged constitutes, under the system laid down in Title VII of the Staff Regulations, an implied decision rejecting it against which an appeal may be brought before the Court of First Instance (paragraph 19).

The letter of 13 June 1995 merely announced that certain measures were to be taken with a view to proceeding to a thorough examination of the applicant's request and complaint and postponed adoption of a decision. Accordingly, it does not meet the request made by the applicant which sought to obtain the assistance of the appointing authority pursuant to Article 24 of the Staff Regulations. Such a letter produces no legal effects and, in particular, is not of such a nature as to extend the time-limits provided for in Articles 90 and 91 of the Staff Regulations (paragraphs 20 and 21).

See: 40/71 Richez-Parise v Commission [1972] ECR 73, para. 8; 7/86 Vincent v Parliament [1987] ECR 2473, para. 12; T-223/95 Ronchi v Commission [1997] ECRSC II-879, para. 28

Accordingly, the claim for annulment is admissible (paragraph 23).

Substance

The claim for annulment and the claim for compensation for nonmaterial damage

The first paragraph of Article 24 of the Staff Regulations requires that, in the case of serious accusations concerning the professional integrity of an official in the performance of his duties, the administration should take all necessary measures to ascertain whether the accusations have any basis and, if they do not, to reject them and take whatever measures may be necessary to restore his damaged reputation (paragraph 31).

See: Ronchi v Commission, cited above, para. 48

In the present case, the accusation made by the successful tenderer's legal representative, to the effect that ‘Mr Carraro's behaviour with regard to the contractor must be attributed to personal factors, possibly to do with the fact that it had not recommended his son’, constitutes a serious accusation regarding the applicant's integrity in the performance of his duties. Consequently, it is for the Commission to intervene with the necessary vigour and to respond with the promptness and care called for by the circumstances in the present case in order to establish the facts and thus be able, in full knowledge of the case, to take the appropriate action (paragraphs 32 and 33).

See: T-294/94 Dimitriadis v Court of Auditors [1996] ECRSC II-151, para. 39

In the present case, the Commission did not carry out an internal inquiry in order to establish the facts and seek an external expert's technical and accounting report until more than seven months after the request for assistance was submitted. By so doing, the Commission failed to react with the necessary speed and so was not able to respond with all due diligence to the applicant's request for assistance (paragraphs 34 and 35).

Annulment of the implied decision of rejection and the award of one ecu by way of token damages is adequate compensation for the nonmaterial damage suffered by the applicant.

The claim that the Commission should be ordered to compensate the applicant for the legal fees which he will have to incur in pursuing a civil claim for damages before the national courts

There is nothing to establish a direct causal link between the fault of which the Commission is accused, consisting in the implied rejection of the request for assistance, and the damage alleged, relating to the cost of proceedings before national courts. Any assistance which the Commission might have afforded would have neither involved nor precluded proceedings being initiated before a national court. Moreover, the applicant reported the offence to the national prosecuting authorities even before the contested decision had been adopted (paragraph 41).

Furthermore, it is not the function of the Community judicature to issue directions to the Community institutions when exercising its powers of review. Under Article 176 of the Treaty, it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment (paragraph 44).

See: T-84/91 Meskens v Parliament [1992] ECR II-2335. para. 73

Operative part:

The implied decision of the Commission rejecting the request for assistance submitted by the applicant on 28 July 1994 is annulled

The Commission is ordered to pay the applicant the token sum of one ecu by way of compensation for the nonmaterial damage suffered.

The remainder of the action is dismissed.