Order — ECLI:EU:T:2012:397
Date: 2012-09-04
Language of the case: English
Court formation: Appeals Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases;Action for damages

summary of the application at first instance, the appellant complained, in support only of his claim for annulment, both of the partial illegality of the new Staff Regulations – including the arbitrary and illegal nature of the Parliament’s decision to delay the completion of the procedure for Competition PE/96/A (paragraph 85 in fine of the application at first instance) – and of the breach of the principle of good administration, the principle of due diligence, the principle of transparency, the principle of good faith and the principle of equal treatment and non-discrimination, and it is in the context of his claim for annulment that he criticises the Parliament for not having informed him of the serious consequences which the new Staff Regulations would have for his recruitment and the subsequent course of his career (paragraph 118 of the application at first instance). 50 It is thus clear that, at first instance, the appellant relied on maladministration by the Parliament, in the form of delays in the procedure in Competition PE/96/A and a lack of information, in order to establish the illegality of the contested decision, and that his claim for damages to make good the loss suffered was intended to specify the measures entailed, pursuant to Article 266 TFEU, by the implementation of a judgment annulling the decision so as to compensate for the consequences of the alleged illegality. Consequently, the Civil Service Tribunal was entitled to take the view that the claim for damages was also closely liked to the claim for annulment, particularly as it is not for the European Union judicature, where a claim for damages is presented together with a claim for annulment, to seek and identify, from amongst the various pleas put forward in support of the action for annulment, that or those on which the appellant intends the claim for damages to be based (order of 11 January 2012 in Case T‑301/11 Ben Ali v Council, not published in the ECR, paragraph 72). 51 In the light of the case-law according to which claims for damages submitted together with inadmissible claims for annulment are themselves inadmissible where they are closely linked to those claims for annulment (Case T‑50/92 Fiorani v Parliament [1993] ECR II‑555, paragraph 46, and order in Case T‑241/03 Marcuccio v Commission [2006] ECR-SC I‑A‑2‑111 and II‑A‑2‑517, paragraph 52), the Civil Service Tribunal could, without committing an error of law and without breaching its obligation to state reasons, confine itself to declaring that the claim for damages was inadmissible on the same basis as the claim for annulment was. 52 As regards, more particularly, the Parliament’s alleged maladministration in failing to inform the appellant of the implications of the new Staff Regulations for his classification in grade in the event of recruitment before or after 1 May 2004, it is true that the appellant also relied on that maladministration to claim that if he had had the information he would have refused to be taken on as a member of the temporary staff in October 2002 and he would never have given up the better paid job he had as a highly respected lawyer in a reputable law firm or, at the very least, he would have gone back there immediately on expiry of his first contract as a member of the temporary staff in June 2003. However, as the appellant failed to furnish any details of the financial losses caused by his abandonment of his job as a lawyer, the Civil Service Tribunal cannot be criticised for not taking that passage in the application to constitute a serious and separate claim for damages which warranted rejection on separate grounds. 53 Finally, for the sake of completeness, even if the claim for damages is not closely linked to the claim for annulment but can be interpreted as seeking independently – that is to say regardless of whether the contested decision is lawful or unlawful – the award of reparation in kind by placing the appellant back in the position (classification in grade A 7) he would have been in if there had not been the alleged delays in the procedure in Competition PE/96/A and if he had been correctly informed, the error made by the Civil Service Tribunal, in disregarding the independent nature of the claims for damages, would not be such as to invalidate its view, in paragraph 32 of the judgment under appeal, that those claims for damages are inadmissible. That view appears founded on other legal grounds (see, to that effect, Case C‑361/01 P Kik v OHIM [2003] ECR I‑8283, paragraph 101, and Case C‑93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 60). 54 In that connection, it must be borne in mind that, according to settled case‑law, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-contentious procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limits a complaint directed against the act in question. In the second case, however, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request. Where there is a direct link between an action for annulment and an action for damages, the action for damages is admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the request. However, where the damage alleged does not stem from an act whose annulment is sought, but from several wrongful acts or omissions alleged against the administration, it is imperative that the pre-litigation procedure should be initiated by a request that the appointing authority compensate for that damage (Case T‑15/96 Liao v Council [1997] ECR‑SC I‑A‑329 and II‑897, paragraphs 57 and 58; Case T‑378/00 Morello v Commission [2002] ECR-SC I‑A‑311 and II‑1497, paragraph 102; and Case T‑25/03 de Stefano v Commission [2005] ECR-SC I‑A‑125 and II‑573, paragraph 78). 55 In the present case, as the alleged delays in the procedure for Competition PE/96/A and the alleged lack of information constitute maladministration which is not of the nature of a decision, the appellant should have followed the two-stage pre-litigation procedure described in the previous paragraph. However, there is nothing in the documents before the court at first instance to indicate that, before bringing the matter before the Civil Service Tribunal, the appellant submitted to the Parliament a request seeking reparation for the damage caused by that maladministration, that such a request was rejected and that that rejection was contested in a complaint. It follows that the claim for damages must, in any event, be rejected as inadmissible for failure to follow the pre-litigation procedure provided for by the provisions of the Staff Regulations. 56 Consequently, the third plea on appeal must be rejected as clearly unfounded. 57 It follows from all of the foregoing that the appeal must be dismissed in its entirety. Costs 58 Pursuant to the first paragraph of Article 148 of the Rules of Procedure, where the appeal is unfounded, the General Court is to make a decision as to costs. 59 Under the first subparagraph of Article 87(2) of the same Rules, which apply to the procedure on appeal pursuant to Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 60 Since the appellant has been unsuccessful and the Parliament has applied for costs, the appellant must be ordered to bear his own costs and to pay those incurred by the Parliament in the present proceedings. 61 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Accordingly, the Council must bear its own costs. On those grounds, THE GENERAL COURT (Appeal Chamber) hereby orders: 1. The appeal is dismissed. 2. Mr Harald Mische shall bear his own costs and those incurred by the European Parliament in the present proceedings. 3. The Council of the European Union shall bear its own costs. Luxembourg, 4 September 2012. E. Coulon M. Jaeger Registrar President * Language of the case: English