Keywords
Summary

Keywords

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1. Officials ° Actions ° Action for damages ° Pre-litigation procedure ° Procedure dependent on whether there is an act adversely affecting the official

(Staff Regulations, Arts 90 and 91)

2. Officials ° Actions ° Prior administrative complaint ° Same subject-matter ° Application for annulment and compensation for non-material damage formulated in the complaint ° Claim for compensation for material damage formulated for the first time before the Court ° Extension of the subject-matter of the action ° No

(Staff Regulations, Arts 90 and 91)

3. Officials ° Actions ° Judgment annulling a measure ° Effects ° Annulment of the decision rejecting an application ° Duties of the administration ° Refusal to adopt any specific measure to eliminate the unlawful circumstance of which the official has been the victim ° Service-related fault ° Compensation for non-material damage

(EEC Treaty, Art. 176; Staff Regulations, Art. 91)

Summary

1. Where an official' s intention is to bring an action for damages against the institution which employs him, the pre-litigation procedure required by the Staff Regulations differs according to whether the damage for which compensation is sought was caused by an act adversely affecting the official within the meaning of Article 90(2) of the Staff Regulations or whether it was caused by conduct not involving a decision. In the first case the admissibility of the action for damages is subject to the condition that the official has submitted to the appointing authority, within the prescribed period, a complaint against the act which caused him damage and that he has brought the action within three months of the rejection of that complaint. In the second case, by contrast, the administrative procedure which must precede the action for damages, in accordance with Articles 90 and 91 of the Staff Regulations, consists of two stages, first a request and secondly a complaint against the express or implied rejection of that request.

2. Claims for compensation for material and non-material damage caused to an official by a decision of the administration which are submitted in an action for damages are not, in the light of the rule that requires the prior administrative complaint and the action to have the same subject-matter, to be regarded as different from the claims for the annulment of that decision and compensation for the non-material loss suffered by the official concerned which are set out in the complaint.

It must be accepted that a claim for the annulment of a decision adversely affecting an official which is set out in the complaint may imply a claim for compensation for the damage, both material and non-material, that that decision may have caused.

3. It is for the institution that issued the act annulled by the Community judicature to determine, in pursuance of Article 176 of the Treaty, what measures are required to comply with a judgment ordering annulment. In exercising its power of assessment, the administrative authority must observe the provisions of Community law as well as the operative part and the grounds of the judgment with which it is required to comply.

Where a decision rejecting an official' s application to take part in a competition, adopted on the basis of internal rules incompatible with the Staff Regulations, has been annulled by the Court of First Instance, the adoption by the institution of new rules applicable for the future does not remove, for the candidate who has not benefited from retroactive application of the new rules, the effects of the unlawful acts committed with regard to him. It follows that the administration is required to adopt specific measures with a view to eliminating that illegality and that it cannot escape its obligation by pleading the practical difficulties that such measures might entail. It is for the administration, in the exercise of the power of assessment conferred on it by Article 176 of the Treaty, to choose between the various measures possible in order to reconcile the interests of the service and the need to remedy the damage caused to the official concerned.

The administration' s refusal to adopt any measure of that kind apart from the non-retroactive amendment of its internal rules infringes Article 176 of the Treaty and constitutes a service-related fault. The administration is therefore bound to make good the non-material damage suffered by the official in question who was entitled to require the institution to remedy the consequences of the unlawful acts committed with regard to him.