CELEX: 62005FJ0106
Public service
Officials

1.
Officials – Actions – Action for damages – Pre-litigation procedure – Application seeking compensation for harm caused by
a withdrawn measure
(Staff Regulations, Arts 90 and 91)
2.
Officials – Actions – Prior administrative complaint – Time-limit for lodging a  complaint – Calculation
(Staff Regulations, Art. 90(2); Council Regulation No 1182/71, Art. 3(4))
3.
Officials – Sick leave – Evidence of illness – Production of a medical certificate – Presumption of regularity of absence
(Staff Regulations, Art. 59(1) and (3))
1.
Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, where the person concerned intends
to seek compensation for the harm allegedly caused by an act adversely affecting him which was subsequently withdrawn by the
administration, the pre-litigation procedure cannot begin with the lodging of a complaint, since the act having an adverse
effect is deemed never to have existed. It is therefore for the person concerned to submit a request to the administration
as provided for in Article 90(1) of the Staff Regulations and then, if that request is rejected, to lodge a complaint against
that rejection.
However, in circumstances where the act having an adverse effect is withdrawn after a complaint has been lodged within the
prescribed time-limit, it would be contrary to procedural economy to require the person concerned to initiate a new pre-litigation
procedure and to submit a new request to the administration under Article 90(1) of the Staff Regulations. Once the administration
has given an implied or explicit decision on his complaint, all he must do is to bring an action, within the prescribed time-limit,
seeking compensation for the harm allegedly caused by the withdrawn act.
(see paras 94-95)
2.
As the Staff Regulations are an act of the Council, and in the absence of any specific rules relating to the time-limits referred
to in Article 90, the rules applicable to the time-limit laid down by Article 90(2), which provides that the complaint must
be lodged within three months, are contained in Article 3(4) of Regulation No 1182/71 determining the rules applicable to
periods, dates and time-limits.
(see paras 98-99)
See:
38/84
K.
v
Parliament
[1985] ECR 1267, para. 20; 152/85
Misset
v
Council
[1987] ECR 223, paras 8 and 9
T-192/94
Maurissen
v
Court of Auditors
[1996] ECR-SC I‑A‑425 and II‑1229, para. 28; T-197/00
Onidi
v
Commission
[2002] ECR‑SC I‑A‑69 and II‑325, para. 50
3.
Where an official who is absent on sick leave has produced a medical certificate, the administration cannot, as is clear from
the provisions of Article 59(1) of the Staff Regulations, regard that absence as unjustified unless the medical examination
which it required the official to undergo revealed that he was capable of performing his duties, or, if the official concerned
disputes the validity of the findings of the medical examination, unless the independent doctor appointed in the arbitration
procedure confirmed those findings. It is only where that condition is satisfied that the administration may, under Article
59(3) of the Staff Regulations, deduct the unjustified absence from the official’s annual leave entitlement and, where that
entitlement has been used up, reduce his remuneration for the corresponding period.
(see para. 112)