JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

30 September 2004

Case T-246/02

Albano Ferrer de Moncada

v

Commission of the European Communities

(Officials – Staff report – Delay in drawing up – Damages)

Full text in French II - 0000

Application:         for, first, annulment of the decision whereby the Commission impliedly rejected the applicant’s claim of 28 August 2001 for damages owing to the delay in drawing up his staff reports for the reference periods 1995/97 and 1997/99 and, in so far as necessary, of the decision whereby the Commission impliedly rejected the applicant’s complaint of 14 January 2002 and, second, damages in respect of the loss sustained by the applicant owing to the delay in drawing up those staff reports.

Held:         The Commission is ordered to pay the applicant the sum of EUR 7 000 in addition to the sum of EUR 1 000 already awarded by the Commission. The remainder of the application is dismissed. The Commission is ordered to pay the costs.

Summary

1.     Officials – Actions – Action for damages – Damages awarded during proceedings in an amount lower than the amount sought – Cause of action still valid

(Staff Regulations, Art. 91(1))

2.     Officials – Actions – Prior complaint through official channels – Requirement that subject-matter and grounds be the same – Pleas and arguments not appearing in the complaint but closely linked to it – Admissible

(Staff Regulations, Arts 90 and 91)

3.     Officials – Reports procedure – Staff report – Drawing up – Delay –Administrative fault giving rise to non-material damage – Conditions

(Staff Regulations, Art. 43)

4.     Officials – Reports procedure – Staff report – Drawing up – Delay – Justification based on organisational difficulties – Not permissible – Delay partially attributable to the official

(Staff Regulations, Art. 43)

1.     An action for damages seeking the award of damages to be calculated ex aequo et bono for the compensation of non-material damage does not become deprived of its cause of action when damages are awarded by the administration during the proceeding, provided that the amount of these damages is lower than the sum sought by the applicant in his action.

(see para. 54)

2.     Under Article 91(2) of the Staff Regulations, appeals from officials lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations. Furthermore, the claims made in an action must have the same subject-matter as those made in the complaint and contain heads of claim based on the same matters as those relied on in the complaint.

However, the purpose of the complaint is not to bind any subsequent proceedings before the Court rigorously and definitively. The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it.

(see paras 58-59)

See: C‑62/01 P Campogrande v Commission [2002] ECR I‑3793, para. 34; T‑59/96 Burban v Parliament [1997] ECR-SC I‑A‑109 and II‑331, para. 31; T‑193/96 Rasmussen v Commission [1998] ECR-SC I‑A‑495 and II‑1495, para. 47; T‑197/99 Gooch v Commission [2000] ECR-SC I‑A‑271 and II‑1247, paras 35 and 38 to 40

3.     The absence of a staff report from an official’s personal file is liable to cause that official non-material damage if such absence may have affected his career or if it placed him in a state of uncertainty or concern as to his professional future.

(see para. 70)

See: T‑78/96 and T‑170/96 W v Commission [1998] ECR-SC I‑A‑239 and II‑745, para. 233

4.     Drawing up staff reports periodically on the dates laid down by the Staff Regulations and in proper form is one of the bounden duties of the administration. An institution cannot therefore legitimately rely on its own internal organisational difficulties to justify its failure to observe the obligations incumbent on it with regard to officials.

However, an official cannot complain of delay in the drawing-up of his staff report and claim non-material damage in that regard when the delay is attributable to him, if only partially, or where he contributed considerably to the delay.

(see paras 81, 85)

See: 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943, para. 15; T‑20/89 Moritz v Commission [1993] ECR II‑1423, paras 37 and 50; T‑279/01 Lebedef v Commission [2003] ECR-SC I‑A‑249 and II‑1203, para. 57