JUDGMENT OF THE COURT OF FIRST INSTANCE (Seventh Chamber)

10 December 2008

Case T-57/99

**Albert Nardone**

**v**

**Commission of the European Communities**

(Civil service – Officials – Action for damages – Occupational disease – Exposure to asbestos and other substances)

**Application:**for compensation for damage allegedly suffered by the applicant due to the wrongful conduct of the Commission in exposing
the applicant to an atmosphere filled with dust and contaminated by asbestos.

**Held:**The Commission is ordered to pay Mr Albert Nardone damages of EUR 66 000. The remainder of the action is dismissed. Each party
is ordered to bear its own costs.

**Summary**

1.      *Officials – Social security – Insurance against the risk of accident and of occupational disease – Flat-rate compensation
under the scheme laid down in the Staff Regulations – Claim for further compensation based on an error of such a kind as to
render the institution liable*

*(Staff Regulations, Art. 73)*

2.      *Officials – Invalidity – Obligation of the administration to determine whether an official who has resigned is fit for work
– None*

*(Staff Regulations, Art. 78)*

3.      *Procedure – Costs – Taxation – Recoverable costs – Definition – Costs incurred in the pre-litigation phase – Not included*

*(Staff Regulations, Arts 90 and 91)*

4.      *Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law intended to confer rights on individuals*

*(Art. 288, second para., EC)*

1.       An official who is the victim of occupational disease is only entitled to claim further compensation in accordance with the
general law when the scheme governed by the Staff Regulations laid down in Article 73 of those Regulations does not allow
appropriate compensation to be paid. That rule of law, which is designed to prevent officials from receiving double compensation,
is applicable systematically and there are, in principle, no exceptions or derogations. Thus, any benefits received under
the Staff Regulations must be taken into account for the purposes of assessing the harm eligible for reparation, since they
compensate for the same harm as that for which compensation is sought in the action for damages.

An action for damages is premature where it is not yet possible to assess whether the compensation which the applicant might
claim under the Staff Regulations is appropriate. While it is normally quicker and more straightforward for an official to
prove that he is entitled to lump-sum compensation under Article 73 of the Staff Regulations than to prove that the conditions
necessary to render the Community non-contractually liable are satisfied, that is not always the case. It is in the light
of procedural economy, a principle which requires the balancing of the various factors involved in each individual case, that
the Community judicature makes the admissibility of an action for compensation under the general law subject to exhaustion
of the compensation procedure provided for in Article 73 of the Staff Regulations. Such an action may therefore be declared
admissible when the procedure to obtain compensation under the Staff Regulations takes too much time. Furthermore, if damages
awarded in such an action compensate for the harm whose reparation is also sought under the compensation procedure provided
for in Article 73 of the Staff Regulations, the amount of those damages should be deducted from any benefits awarded to the
applicant under the Staff Regulations, pursuant to the rule against overlapping compensation.

(see paras 53-58)

See: C‐257/98 P *Lucaccioni* v *Commission* [1999] ECR I‐5251, para. 23; T‐165/95 *Lucaccioni* v *Commission* [1998] ECR-SC I‐A‐203 and II‐627, para. 72; T‐300/97 *Latino* v *Commission* [1999] ECR-SC I‐A‐259 and II‐1263, paras 94 and 95

2.       It is not apparent from the case-law of the Court or from any other source of Community law that there is a general obligation
for a Community institution to determine whether an official who has left voluntarily is fit for work.

Where an official considers that his state of health makes it necessary for him to leave the service, it is for him to submit
a request before leaving, in accordance with Article 90 of the Staff Regulations, for the award of an invalidity pension under
Article 78 of the Staff Regulations. If he fails to do so, he alone is responsible for the fact that he has not been paid
an invalidity pension, assuming that he was entitled to such a pension.

(see paras 130-131)

See: T‐59/01 *Nardone* v *Commission* [2003] ECR-SC I‐A‐55 and II‐323, paras 38 and 40

3.       The fees due for the services provided by a lawyer at the stage of the pre-litigation procedure provided for in Articles
90 and 91 of the Staff Regulations do not constitute recoverable costs. The scheme of the pre-litigation procedure provided
for in the Staff Regulations does not require an official to be represented at that stage, the *quid pro quo* being that the administration must not interpret the complaints restrictively but should, on the contrary, consider them
with an open mind. Consequently, unless there are exceptional circumstances, an official cannot obtain reimbursement of costs
and fees for his advisers in an action for damages.

(see paras 139-140)

See: T‐84/91 DEP *Meskens* v *Parliament* [1993] ECR II‐757, para. 14; T‐34/03 *Hecq* v *Commission* [2004] ECR-SC I‐A‐143 and II‐639, para. 21 and the case-law cited therein; T‐155/03, T‐157/03 and T‐331/03 *Cwik* v *Commission* [2005] ECR-SC I‐A‐411 and II‐1865, para. 199 and the case-law cited therein

4.      For the European Community to be rendered non-contractually liable, the first condition is that a sufficiently serious breach
of a rule of law intended to confer rights on individuals must be shown. As regards the requirement that the breach must be
sufficiently serious, the decisive criterion for considering that to be satisfied, in particular where the Community institution
concerned enjoys a wide discretion, is whether the institution manifestly and gravely disregarded the limits on its discretion.
Where the institution in question has only a considerably reduced, or even no, discretion, the mere infringement of Community
law may be sufficient to establish the existence of a sufficiently serious breach.

The conditions for the liability of the Community for damage caused to its officials and former officials as a result of a
breach of Community law cannot, in the absence of any special reasons, be different from those that apply to the Community’s
liability in respect of other individuals.

The medical service of a Community institution must, as part of its duty to have regard for the welfare of officials, warn
an official of the existence of any illness revealed by his file and alert him to behaviour posing a threat to his health,
which presupposes that all pertinent data and information in that regard are communicated to him. The medical service must
also warn the official of risk factors which may cause an illness to appear. Any infringement of those obligations is likely
to render the institution in question liable. Thus the duty to have regard for the welfare of officials is a rule of law whose
breach is likely to render the European Community liable.

The Commission commits a wrongful act constituting a serious breach of its duty to have regard for the welfare of officials
where it obliges an official to work in unhealthy conditions and fails to take measures to improve them, even though the medical
officer has drawn its attention to the situation on a number of occasions.

(see paras 162, 164, 166, 171-173)

See: C‐352/98 P *Bergaderm and Goupil* v *Commission* [2000] ECR I‐5291, paras 41, 43 and 44; T‐36/89 *Nijman* v *Commission* [1991] ECR II‐699, paras 36 and 37; T‐90/95 *Gill* v *Commission* [1997] ECR-SC I‐A‐471 and II‐1231, para. 34; T‐198/95, T‐171/96, T‐230/97, T‐174/98 and T‐225/99 *Comafrica and Dole Fresh Fruit Europe* v *Commission* [2001] ECR II‐1975, para. 134