JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 December 2007

Case T-66/05

Jörn Sack

v

Commission of the European Communities

(Civil service – Official – Action for annulment – Increment – Duties of ‘Head of unit’ – Equal treatment – Duty to state reasons – Rules on use of languages)

Application: for annulment of the decisions relating to the fixing of the applicant’s monthly salary for the months of May 2004 to February 2005, application for a fresh calculation of that salary and action for annulment of the express decision to reject the applicant’s claim, notified to him on 26 November 2004.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Salary slip evidencing a decision to refuse or withdraw a financial benefit

(Staff Regulations, Arts 90 and 91)

2.      Officials – Actions – Prior administrative complaint – Legal nature to be determined by the Court

(Staff Regulations, Art. 90(2))

3.      Officials – Actions – Prior administrative complaint – Date when lodged

(Staff Regulations, Art. 90(2))

4.      Officials – Actions – Prior administrative complaint – Collective and individual complaints lodged at the same time

(Staff Regulations, Art. 90(2))

5.      Officials – Decision adversely affecting an official – Obligation to state the reasons on which the decision is based – Scope – Inadequate statement of reasons – Correction during the proceedings before the Court – Conditions

(Art. 253 EC; Staff Regulations, Art. 90(2))

6.      Officials – Equal treatment

7.      Officials – Organisation of departments – Unit – Definition

1.      As a general rule, salary slips constitute acts adversely affecting an official, against which an action may be brought. However, as far as concerns, more particularly, a salary slip which shows that the appointing authority has decided to refuse an official a financial benefit or to withdraw from him a financial benefit previously granted, it is only the first salary slip showing that decision which constitutes an actionable measure. The salary slips for subsequent months merely confirm that decision and for that reason constitute acts which are purely confirmatory of the first salary slip and cannot be the subject of an action for annulment.

(see para. 31)

See: 262/80 Andersen and Others v Parliament [1984] ECR 195, para. 4; T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, paras 66 and 69

2.      It is for the Court of First Instance to determine the precise legal nature of documents addressed by an official to the appointing authority prior to bringing proceedings, and to identify which of those documents constitutes the complaint required by the Staff Regulations, without being bound by the parties’ characterisation of those documents.

An act of the appointing authority which adversely affects an official may be the subject of only one complaint, lodged against it by the official concerned. Other documents which he may address to the appointing authority after lodging his complaint, even if characterised as complaints, cannot constitute either requests or complaints but must be regarded as purely reiterative of the complaint and cannot therefore prolong the pre-litigation procedure.

Consequently, where two complaints, one individual and the other collective, have the same subject-matter, only one of them, namely the complaint first lodged, constitutes a complaint for the purposes of Article 90 of the Staff Regulations, while the other, lodged subsequently, must be regarded as a note merely reiterating the complaint.

(see paras 36-37, 41)

See: T‑14/91 Weyrich v Commission [1991] ECR II‑235, paras 39 and 41; T‑67/91 Torre v Commission [1992] ECR II‑261, paras 28 and 32

3.      The date on which a complaint must be considered to have been lodged is that on which the administration is able to be apprised of it.

In that respect, an official cannot be expected to suffer on account of factors beyond his control which may delay the transmission of his letter of complaint, and he cannot therefore be held responsible for deficiencies or delays in transmission from one department to another within the institution to which the complaint is addressed.

(see paras 38, 44)

See: T‑54/90 Lacroix v Commission [1991] ECR II‑749, paras 29 and 30

4.      There is nothing unlawful in the fact that an institution replies jointly, in its decision of rejection, both to an individual complaint and to a collective complaint.

(see para. 64)

See: T‑10/94 Kratz v Commission [1995] ECR II‑1455, para. 20

5.      The statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the Community institution in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirement to state reasons must be appraised by reference, in particular, to the content of the measure in question and the interest which the addressees of the measure, or other parties to whom it is of concern, may have in obtaining explanations. However, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

Although the commencement of proceedings puts an end to the possibility of the appointing authority’s regularising its decision by a reply rejecting the complaint, an inadequate statement of grounds may be remedied in certain exceptional circumstances by additional information provided even during the proceedings if, before his action was brought, the official concerned already had at his disposal information constituting the beginnings of a statement of grounds.

(see paras 65-67)

See: T‑52/90 Volger v Parliament [1992] ECR II‑121, para. 40; T‑117/01 Roman Parra v Commission [2002] ECR-SC I‑A‑27 and II‑121, paras 30 and 32; T‑277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 83 and the case-law cited therein; T‑132/03 Casini v Commission [2005] ECR-SC I‑A‑253 and II‑1169, para. 36

6.      The principle of equal treatment does not entitle an official to request a financial benefit unlawfully granted to another official.

(see paras 122, 163)

See: 188/83 Witte v Parliament [1984] ECR 3465, para. 15; T‑22/99 Rose v Commission [2000] ECR-SC I‑A‑27 and II‑115, para. 39

7.      The concept of a unit, led by a head of unit, must be defined as a separate administrative structure with its own human and, often, financial resources, incorporated into the administrative organisation of an institution.

(see para. 130)