ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

17 November 2000

Case T-200/99

Alberto Martinelli

v

Commission of the European Communities

‛Officials — Absence of staff report — Action for damages — Admissibility — Implicit rejection of a request not disputed within the time-limits — Express confirmation of that rejection — Damage’

Full text in Italian   II-1161

Application for:

compensation for the nonmaterial damage allegedly suffered by the applicant as a result of the absence of staff reports for the reference periods 1993-95 and 1995-97.

Held:

The action is dismissed. The parties are to bear their own costs.

Summary

1. Officials — Actions — Prior administrative complaint — Implied decision rejecting a request not challenged within the time-limits — Subsequent express decision — Confirmatory act — Time-barred

   (Staff Regulations, Arts 90 and 91)

2. Officials — Reports procedure — Staff report — Drawing up — Delay — Service-related fault giving rise to nonmaterial damage — Conditions — Official already retired at the time he became aware of the absence of a report — No damage

   (Staff Regulations, Art. 43)

1.  The last indent of Article 91(3) of the Staff Regulations, which reads ‘where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh’, cannot apply at the stage of the request and before the complaint is lodged. That specific provision, which relates to the rules for calculating periods for filing appeals, must be interpreted literally and strictly. It follows that the express rejection of a request after an implied decision rejecting that same request cannot enable the official concerned to continue the pre-litigation procedure by opening for him a new period for lodging a complaint, as that decision is in the nature of a purely confirmatory measure.

   (see para. 11)

   See: 75/82 and 117/82 Razzouk and Beydounv Commission [1984] ECR 1509, para. 12; T-38/91 Coussios v Commission [1991] ECR II-763; T-129/89 Offermann v Parliament [1991] ECR II-855, para. 32; T-15/91 Bollendoiffv Parliament [1992] ECR II-1679, paras 26, 27 and 32; T-55/92 Knijff v Court of Auditors [1993] ECR II-823, para. 34

2.  The absence of a staff report from the personal file of an official is capable of giving rise, in so far as that official is concerned, to nonmaterial damage if his career could have been affected thereby or if that fact resulted in his being put in an uncertain state of mind with regard to his future. An official who became aware of the absence of his staff report from his personal file only after his retirement cannot claim to be in an uncertain or anxious state of mind with regard to his professional future.

   (see paras 16-18)

   See: T-496/93 Allo v Commission [1995] ECRSC I-A-127 and II-405, para. 89