62010FJ0091_EN
Parties
Grounds
Operative part
Parties
In Case F‑91/10,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
AK, former official of the European Commission, residing in Esbo (Finland), represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers,
applicant,
v
European Commission,
represented by G. Berscheid and J. Baquero Cruz, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
composed of S. Van Raepenbusch (Rapporteur), President, R. Barents and K. Bradley, Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 20 June 2012,
gives the following
Judgment
Grounds
1. By application received at the Registry of the Tribunal on 30 September 2010, AK seeks,
– first, annulment of the decision of the Commission of the European Communities of 24 November 2009 rejecting her application both for compensation for the loss she suffered by reason of the failure to draw up career development reports (‘CDRs’) for periods 2001/2002, 2004, 2005 and 2008 and for the launch of an administrative inquiry into claims of psychological harassment;
– secondly, an order that the Commission pay damages.
Legal context
2. The first paragraph of Article 24 of the Staff Regulations of Officials of the European Union, as in force at the time the decision of 24 November 2009 was adopted (‘the Staff Regulations’), reads:
‘The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.’
3. The first paragraph of Article 43 of the Staff Regulations provides:
‘The ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years as provided for by each institution …’
4. Article 13 of Annex VIII to the Staff Regulations, concerning the pension scheme provides:
‘1. … an official aged less than 65 years who at any time during the period in which he is acquiring pension rights is recognised by the Invalidity Committee to be suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket, and who is obliged on these grounds to end his service with the Communities shall be entitled, for so long as such incapacity persists, to invalidity allowance as provided for in Article 78 of the Staff Regulations.
2. Persons in receipt of an invalidity allowance may not engage in gainful employment without the prior authorisation of the Appointing Authority. …’
Background to the dispute
5. By decision of the appointing authority of 25 January 1999, replacing the decision of 9 September 1997, the applicant entered the service of the Commission as a probationary official in grade A 5, step 1.
6. The applicant’s CDR for the period 1 July 2001 to 31 December 2002 (‘the 2001/2002 CDR’), adopted originally on 10 April 2003, was annulled, for the first time, by the Court of First Instance of the European Communities by a judgment of 20 April 2005 in Case T‑86/04 [AK]
v Commission
(‘the judgment of 20 April 2005’). The administration drew up a new CDR, which was adopted by the appeal assessor on 2 June 2006 for the above-mentioned period, but that was also annulled by a judgment of the Court of First Instance of 6 October 2009 in Case T‑102/08 P [AK]
v Commission
(‘the judgment of 6 October 2009’). The final version of the 2001/2002 CDR was adopted during the present proceedings on 25 January 2012.
7. The applicant’s CDR for 2004 (‘the 2004 CDR’) was adopted originally on 14 January 2005, but was annulled by a judgment of the Court of First Instance of 13 December 2007 in Case F‑42/06 [AK]
v Commission
(‘judgment of 13 December 2007’). It was replaced by a new 2004 CDR, adopted during the present proceedings on 25 January 2012.
8. As regards the applicant’s CDR for 2005 (‘the 2005 CDR’), on 23 April 2007 the appointing authority upheld the complaint which the applicant had filed regarding that CDR, with the result that the procedure for drawing up that CDR had to be resumed. The 2005 CDR was finally sent to the applicant during the present proceedings, in a letter dated 8 June 2012.
9. Lastly, the applicant’s CDR for 2008 (‘the 2008 CDR’) was still not finalised on 20 September 2012, the date on which the present case entered the deliberation stage.
10. The applicant was promoted to grade AD 12 on 1 March 2008.
11. Having established that on 1 September 2008 the applicant had had 426 days’ absence because of illness over three years, the appointing authority decided, in December 2008, to refer the matter to the Invalidity Committee, which found unanimously that the applicant was suffering from total permanent invalidity, preventing her from performing the duties corresponding to a post in her function group. On the basis of that finding, on 7 May 2009 the appointing authority decided to terminate the applicant’s service on the ground of permanent incapacity and to grant her entitlement to an invalidity allowance with effect from 1 June 2009.
12. On 24 July 2009 the applicant filed a complaint against the abovementioned decision retiring her on the ground of invalidity. That complaint was rejected by decision of the appointing authority of 29 October 2009.
13. Meanwhile, on 10 August 2009, the applicant had made a request for assistance, seeking the launch of an administrative inquiry into the harassment of which she considered she was the victim, and the award of compensation for the damage she had allegedly suffered since 2003 due to the numerous irregularities in the drawing up of her CDRs, the administrative handling of her absences because of illness and the unsuitability of her working environment for her illness. The applicant claimed, inter alia, material loss consisting in the difference between her invalidity allowance and the remuneration which she would have received if she had been able to work. Those requests were rejected by the appointing authority by decision of 24 November 2009 (‘the contested decision’).
14. By letter from her adviser dated 24 February 2010, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision. That complaint was rejected by a decision of the appointing authority of 18 June 2010, notification of which was received by the applicant on 21 June 2006.
Forms of order sought by the parties and procedure
15. The applicant claims that the Tribunal should:
– annul the contested decision;
– order the Commission to pay her:
‘– [EUR] 53 000 for the loss of opportunity for promotion to grade A 5 in promotion year 2003, in addition to the adjustment of her pension rights through payment of the corresponding contributions;
– [EUR] 400 per month (corresponding to 70% of the difference between the invalidity allowance which she receives and that which she would have received if she had been promoted in 2003);
– [EUR] 35 000 for the non-material damage suffered as a result of the persistence of her irregular administrative situation, despite, inter alia, the judgments [of 20 April 2005, 6 October 2009 and 13 December 2007]’;
– order the Commission to pay the costs.
16. In her observations of 4 May 2012 the applicant increased the amount of compensation for non-material damage, assessing it at EUR 70 000.
17. In a letter of 9 July 2012, the applicant assessed the compensation due to her at that time for ‘loss of opportunity to be promoted in 2003, 2005 or at the latest 2007 … as [EUR] 410 070, [EUR] 204 996 and [EUR] 90 130’.
18. The Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
19. By letter of 30 September 2010 accompanying her application, the applicant requested anonymity for the present case and repeated that request on 7 May 2012, despite the particular context of the action.
20. By letter of 8 February 2011 the Registry of the Tribunal invited the parties to attend an informal meeting for the purpose of seeking an amicable settlement of the dispute. At the end of that meeting, which was held on 1 March 2011 in the presence of the Judge-Rapporteur, the parties were given a deadline within which to reach agreement. Finding that it was impossible for the parties to reach an amicable settlement, the Tribunal ended the attempt to reach such a settlement. At the end of the hearing held on 20 June 2012, the President none the less invited the parties to a further informal meeting. Finding that that further attempt to reach an amicable settlement had failed, the Tribunal declared, on 20 September 2012 after the last observations had been submitted, that the oral procedure was closed and that the case should proceed to deliberation.
Law
21. It should be borne in mind that the applicant’s request of 10 August 2009 had two objectives: to obtain from [the Commission] compensation for the material and non-material damage caused by the numerous irregularities in the drawing up of the CDRs and to seek the Commission’s assistance through the launch of an inquiry into the harassment. The contested decision rejected that request in its entirety. In view of the two objectives comprised in that decision, the first head of claim of the action, seeking annulment of the contested decision, must be read as seeking annulment of the contested decision in so far as it rejected the claim for compensation and in so far as it rejected the request for assistance in respect of psychological harassment.
1. The claim for annulment of the contested decision in so far as it rejected the applicant’s claim for compensation
22. The applicant seeks annulment of the contested decision in so far as it rejected her claim for compensation filed on 10 August 2009.
23. In that regard, it should be noted that, according to case-law, an institution’s decision rejecting a claim for compensation forms an integral part of the preliminary administrative procedure which precedes an action for damages before the Tribunal and, consequently, in such a context a claim for annulment cannot be assessed in isolation from a claim for compensation. The measure setting out the position adopted by the institution during the pre-litigation stage only has the effect of allowing the party who has suffered damage to apply to the Tribunal for compensation. Thus, there is no need to give a separate ruling on the claim for annulment (judgments of 23 October 2003 in Case T‑25/02 Sautelet v Commission, paragraph 45; of 14 October 2004 in Case T‑256/02 I v Court of Justice, paragraph 47; and of 11 May 2010 in Case F‑55/09 Maxwell
v Commission, paragraph 48) of the contested decision in so far as it rejected the applicant’s claim for compensation.
24. As a result, in so far as it must be understood as being directed against that claim for annulment, there is no need to give a ruling on the objection of inadmissibility raised by the Commission, alleging that the applicant has no interest in obtaining annulment of the contested decision in so far as it rejected her claim for compensation, because she had been retired automatically on the ground of invalidity.
25. As a further result, it is necessary for the Tribunal to examine the claim for compensation contained in the application before examining the claim for annulment of the contested decision in so far as it rejected the applicant’s request for assistance.
2. The claim for compensation for the damage suffered by the applicant
The admissibility of the claim for compensation
26. It is apparent from the application as a whole that, in her claim for compensation, the applicant is seeking before the Tribunal compensation for the damage which she allegedly suffered because her 2001/2002, 2004, 2005 and 2008 CDRs were not properly drawn up at the appropriate time.
27. Relying on the judgment of 22 December 2008 in Case C‑198/07 P Gordon
v Commission, the applicant submits, as one of the arguments concerning the merits of her action, that her retirement on the ground of invalidity did not have the effect of causing her to forfeit her right to have her work recognised by means of an appraisal carried out in a just and equitable manner. The value of a CDR should be assessed not only with regard to its usefulness for the career of the official concerned but also with regard to the assessment of the personal qualities shown by the individual in the conduct of that person’s professional life. Furthermore, the 2001/2002, 2004, 2005 and 2008 CDRs might provide evidence for the assessment by the medical committee called upon to give its view on the occupational origin of her illness, since the classification of an illness as an occupational illness may be dependent upon the working environment and working conditions which are documented in a staff report.
28. The Commission considers, however, that since she was retired automatically on the ground of invalidity the applicant cannot rely on alleged damage resulting from the failure to finalise her 2001/2002, 2004, 2005 and 2008 CDRs. The judgment in Gordon
v Commission is not relevant in the present case since in that case not all the requisite conditions to justify automatic retirement on the ground of total permanent invalidity were considered to have been definitively met, so that the possibility of reinstating the person concerned was not hypothetical ( Gordon
v Commission, paragraph 48). However, that is not so in the present case.
29. In that regard, it must be stated at the outset that the applicant’s argument that the 2001/2002, 2004, 2005 and 2008 CDRs might help to establish the occupational origin of her illness is speculative. In the light of the CDRs in question, drawn up during the proceedings before the Tribunal, it even appears to be incorrect, since those CDRs do not provide any objective clarification as to the applicant’s working conditions. At most the 2005 and 2008 CDRs contain a vague reference, by the applicant herself, to the poor air quality in a classroom, a brief summary, again by the applicant, of administrative measures taken between March and October 2008 in respect of her state of health and a brief reference by her to the fact that it was impossible for her to work on the Commission’s premises.
30. Moreover, in Gordon v Commission the Court held that, while it is true that an official recognised by the Invalidity Committee as being in a state of total permanent incapacity is automatically retired, the situation of that official, unlike that, inter alia, of an official who has reached the age of retirement, is reversible: such an official may one day resume his duties within an institution, so his employment is merely suspended, since the evolution of his position within the institutions is subject to the continued existence of the conditions which justified that invalidity, which can be reviewed at regular intervals. Accordingly, the Court held that an official in a state of total permanent invalidity retains an interest in challenging a CDR ( Gordon
v Commission, paragraph 27 above, paragraphs 46, 47 and 51).
31. However, in Gordon v Commission, not all the requisite conditions to justify his automatic retirement on the ground of total permanent invalidity were considered to have been definitively met and the possibility of reinstating him was not merely hypothetical but real ( Gordon
v Commission, paragraph 27 above, paragraph 48). In that context the Court held that an official who is recognised as being in a state of permanent invalidity, which is considered to be total, where he may be reinstated in the institutions, has a right comparable to that of a serving official to have his CDR drawn up fairly, objectively and in accordance with normal reporting standards ( Gordon
v Commission, paragraph 27 above, paragraph 49).
32. In the present case, the Invalidity Committee concluded that ‘no medical review was needed’, due to ‘the permanent nature of the condition which led to the invalidity’ of the applicant, so that it may indeed be considered that, in the light of that conclusion, her reinstatement was hypothetical.
33. It should be noted, however, that in Gordon v Commission, the Court gave its ruling to the effect cited above in respect of grounds of appeal against a judgment of the Court of First Instance which itself was given in an action for annulment of a CDR. The situation is different where, as in the present case, it is a matter of assessing an interest in bringing, not an action for annulment but an action for compensation and, moreover, not for damage caused by an allegedly unlawful CDR, but for damage caused by delay on the part of the administration in drawing up that CDR. In those circumstances, an official retired automatically on the ground of invalidity, whether the possibility of his reinstatement is purely hypothetical or indeed real, retains in principle an interest in receiving compensation for the damage which he has actually suffered as a result of that delay.
34. It is therefore necessary to reject the objection of inadmissibility raised by the Commission alleging the applicant’s lack of interest in making her claim for compensation.
35. The interest which an official retired automatically on the ground of invalidity retains, in principle, to receive compensation for damage actually suffered as a result of delay in drawing up his CDRs does not, however, exempt that official from complying with the rules, constantly reiterated in case-law, under which the European Union incurs non-contractual liability, and inter alia the requirement that in order to obtain compensation the official must establish that he has suffered actual and certain damage (see, for example, judgments of 27 January 1982 in Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others
v Council and Commission, paragraph 9; of 12 December 1996 in Case T‑99/95 Stott
v Commission, paragraph 72; of 12 May 2011 in Case F‑50/09 Missir Mamachi di Lusignano v Commission, paragraph 117, under appeal to the General Court, Case T‑401/11 P; and of 13 September 2011 in Case F‑101/09 AA
v Commission, paragraph 78). That issue will be considered in the context of the examination of the merits of the claim for compensation.
36. The Commission also contends that the 2001/2002 CDR was annulled by the judgment of 20 April 2005 owing mainly to the presence in that report of repeated references to justified absences because of illness, and that the applicant did not claim damages in that case. It also observes that, although the judgment of 6 October 2009 annulled the new 2001/2002 CDR on the ground of failure to state reasons, it rejected the applicant’s claim for compensation on the ground that that new CDR, and in particular that part of it relating to output, which was vitiated by the failure to state reasons criticised in the judgment, did not contain any statement that was expressly negative with regard to the applicant, so that the annulment of the new 2001/2002 CDR constituted in itself appropriate and sufficient compensation for any non-material damage.
37. The Commission concludes from this that, as regards the 2001/2002 CDR, the claim for compensation, at least in so far as the non-material damage relied upon is concerned, must be rejected if the principle of res judicata
is not to be infringed.
38. It should be noted in that regard that an action is inadmissible by reason of the status of res judicata of an earlier judgment, which disposed of an action that was between the same parties, had the same purpose and was based on the same submissions (judgments of 19 September 1985 in Joined Cases 172/83 and 226/83 Hoogovens Groep
v Commission, paragraph 9; of 5 June 1996 in Case T‑162/94 NMB and Others
v Commission, paragraph 37; and of 25 June 2010 in Case T‑66/01 Imperial Chemical Industries
v Commission, paragraph 197).
39. In the present case, the action seeks, not annulment of an unlawful CDR and compensation for the damage caused by it, but compensation for the damage resulting from delay in drawing up the CDRs.
40. The present action does not therefore have the same purpose as the actions disposed of by the judgments of 20 April 2005 and 6 October 2009.
41. The objection of inadmissibility which the Commission based on infringement of the principle of res judicata must therefore be rejected.
Merits of the claim for compensation
42. In accordance with settled case-law, the European Union can incur non-contractual liability only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the wrongful act and the damage alleged to have been suffered (see judgments of 12 December 2002 in Case T‑135/00 Morello
v Commission, paragraph 130; of 31 May 2005 in Case T‑105/03 Dionyssopoulou
v Council, paragraph 30; and of 23 November 2010 in Case F‑50/08 Bartha
v Commission, paragraph 53).
43. The Tribunal must therefore examine those conditions in turn.
The illegality of the allegedly wrongful act committed by the Commission
44. The applicant relies on several wrongful acts.
45. In her application, as regards the first wrongful act complained of, the applicant states that no CDR was drawn up for 2001/2002, 2004, 2005 and 2008, and that the first paragraph of Article 43 of the Staff Regulations was thus infringed. The contested decision, in so far as it does not record such infringement, is therefore unlawful.
46. Also in her application, as regards the second act complained of, the applicant notes that under Article 266 TFEU it was incumbent on the administration to take the necessary measures to eliminate the effects of unlawful acts held to exist by the European Union Court which annulled the decisions adopting the 2001/2002 and 2004 CDRs. In the absence of any measure to comply with the judgments of 20 April 2005, 6 October 2009 and 13 December 2007, the appointing authority maintained the effects of the illegal conduct found by the Court. The irregular situation thus continued for more than seven years in the case of the 2001/2002 CDR and more than five years in the case of the 2004 CDR. Similar reasoning applies with regard to the appointing authority’s decision upholding the applicant’s complaint against the decision adopting her 2005 CDR, which had not been finalised.
47. In her subsequent observations, made in response to measures of organisation of procedure ordered by the Tribunal, the applicant challenges the procedure leading to the adoption of the 2001/2002, 2004, 2005 and 2008 CDRs that were sent to her during the proceedings, and considers that those CDRs cannot be regarded as finalised reports. She considers in particular that the reasonable time-limit for carrying out the appointing authority’s decision of 23 April 2007 relating to the 2005 CDR, and the judgments of 20 April 2005 and 6 October 2009 relating to 2001/2002 CDR, and also the judgment of 13 December 2007 relating to the 2004 CDR has now been exceeded ‘to such an extent that it is no longer possible at this stage to draw them up’. Lastly, she complains that the Commission failed to update her promotion file, inter alia by not considering the possibility of awarding her priority points.
48. The Commission considers that the claim for compensation is unfounded, on the ground that it cannot be held to have committed any breach.
49. It should be noted that, according to settled case-law, the administration must ensure that CDRs are drawn up periodically on the dates laid down by the Staff Regulations, or by rules adopted thereunder, and that CDRs are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials. Therefore, in the absence of special circumstances, the administration commits a breach of administrative duty giving rise to liability on its part where it delays in drawing up a CDR (judgment of 23 October 2003 in Case T‑279/01 Lebedef
v Commission, paragraphs 55 and 56).
50. It should also be noted that the institution whose act has been annulled is required to take the necessary measures to comply with the judgment annulling that act, but also that, since compliance with such a judgment requires the adoption of a number of administrative measures, the institution has a reasonable time to comply with that judgment (see, to that effect, judgments of 10 July 1997 in Case T‑81/96 Apostolidis and Others
v Commission, paragraph 37, and of 17 April 2007 in Joined Cases F‑44/06 and F‑94/06 C and F
v Commission, paragraph 60). Consequently, an institution infringes Article 266 TFEU and commits a breach giving rise to liability on the part of the European Union where, in the absence of particular difficulties in the interpretation of the judgment annulling an act, or of practical difficulties, it fails to adopt specific measures to comply with that judgment within a reasonable period (see, to that effect, C and F
v Commission, paragraphs 63 to 67).
51. In the present case, it is apparent from the statement of the facts contained in paragraph 6 et seq above that there was a particularly substantial delay on the part of the Commission in drawing up the 2001/2002, 2004, 2005 and 2008 CDRs.
52. The Commission contends, however, that it was only when the judgment of 6 October 2009 was delivered, after the applicant had been retired on the ground of invalidity, that reporting officers were informed that absences because of illness were to be taken into account by way of special circumstances for purposes of giving a more favourable appraisal, and that comments contained in the staff report were to indicate that those circumstances had been taken into account, whereas, under the previous rules, absences because of illness were to be treated in a neutral way in reporting officers’ comments.
53. However, the interpretation which a court gives to a rule of European Union law merely clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the ruling giving the interpretation in question (see, to that effect, judgment of 12 July 2011 in Case T‑80/09 P Commission
v Q, paragraph 164). It follows that the interpretation of the first paragraph of Article 43 of the Staff Regulations adopted in the judgment of 6 October 2009 was fully applicable to the applicant’s legal and factual situation even before the delivery of that judgment. Consequently, there is no reason to accept the claimed uncertainty of the case-law in order to relieve the Commission of its liability.
54. On the other hand, in the present case the Commission cannot be criticised for failing to update the applicant’s promotion file by not considering the possibility of awarding her priority points, as the applicant contends in her observations made in response to measures of organisation of procedure ordered by the Tribunal. In relying on that allegedly unlawful act, the applicant adds to the other wrongful acts which she complained of in her action and thus raises a fresh objection. Whilst the drawing up of a CDR at the appropriate time is required by the first paragraph of Article 43 of the Staff Regulations, promotions, which involve the award of priority points, come under Article 45 of those regulations. However, the preceding considerations do not mean that, in assessing the damage suffered by the applicant, the Tribunal may not consider whether she lost the opportunity for promotion due to delays on the part of the Commission in drawing up her CDRs.
55. Lastly, if the subject-matter of the dispute is not to be radically changed and internal legal remedies circumvented, the Commission cannot be criticised in the present action for committing irregularities in drawing up the CDRs produced during the present proceedings.
56. It follows from all the above that the Commission committed a breach in failing to draw up the 2001/2002, 2004, 2005 and 2008 CDRs on the dates prescribed and in failing to take measures within a reasonable time to comply with the judgments of 20 April 2005, 13 December 2007 and 6 October 2009, but it cannot be criticised for any other breach relating to the drawing up of the CDRs after the case had been referred to the Tribunal.
57. The Tribunal must therefore examine the extent of the damage which the applicant may have suffered due to the delays in drawing up her 2001/2002, 2004, 2005 and 2008 CDRs.
Damage suffered by the applicant
– Non-material damage claimed by the applicant
58. The applicant considers that the delay in drawing up her 2001/2002, 2004, 2005 and 2008 CDRs caused her non-material damage in that it placed her in a state of uncertainty and distress and continued a dispute for nearly seven years in respect of four appraisal periods.
59. In response, the Commission contends that it has not been demonstrated that the non-material damage for which the applicant seeks compensation is real.
60. It should be noted that, according to settled case-law, a delay in the drawing up of a CDR may in itself be prejudicial to the official for the simple reason that his career progress may be affected by the absence of such a report at a time when decisions concerning him must be taken (judgments of 28 May 1997 in Case T‑59/96 Burban
v European Parliament, paragraph 68, and of 30 September 2004 in Case T‑246/02 Ferrer de Moncada
v Commission, paragraph 68). From that perspective, it is possible to take the view that an official retired automatically on the ground of invalidity may seek compensation for real and certain non-material damage resulting from the state of uncertainty and concern regarding her professional future which the absence of a CDR may have caused her when she was in active employment. That applies a fortiori
since a CDR constitutes formal evidence in writing of the quality of the work which that official has carried out during the period under consideration.
61. In the present case, the possibility that the applicant may obtain compensation for the non-material damage caused by the delay in drawing up her CDRs is not affected by the fact, relied upon by the Commission, that when the Tribunal annulled the 2004 CDR by the judgment of 13 December 2007 it rejected the claim for compensation for non-material damage, holding that the annulment in itself constituted appropriate and sufficient compensation for any non‑material damage that the applicant may have suffered as a result of the act annulled (judgment of 13 December 2007, paragraph 46). Nor is that possibility affected, as regards the 2005 CDR, by the fact that the latter was cancelled on appeal by the decision of the appointing authority of 23 April 2007 and that the cancellation should have the same effect of repairing any non-material damage as a judgment annulling the act.
62. It should be pointed out, again, that the purpose of the present action for damages, in so far as it seeks compensation for the non-material damage resulting from the fact that the 2004 CDR was not properly drawn up within the prescribed time‑limit, is different from the claims for compensation rejected by the judgment of 13 December 2007, which sought compensation for the non-material damage which, according to the applicant, resulted from the attacks upon her honour contained in the CDR in question (judgment of 13 December 2007, paragraph 42). Likewise, the cancellation of the 2005 CDR by the decision of the appointing authority of 23 April 2007 was a penalty for the irregularity of that CDR and not for the delay in drawing it up.
63. However, an official in the applicant’s position, whose prospects for reinstatement are hypothetical, cannot claim, in respect of the period following her automatic retirement, that she has suffered real and certain non-material damage resulting from the state of uncertainty and concern regarding her professional future, since that professional future is in fact hypothetical.
64. It is true that the Tribunal held in a judgment of 10 November 2009 in Case F‑93/08 N
v European Parliament, paragraph 46, that every official has a right to challenge their staff report. However, the facts in that case are not comparable to those in the present case. Case F‑93/08 did not concern an action for damages brought, on the ground of delay in drawing up CDRs, by a former official in receipt of an invalidity allowance, whose reinstatement is hypothetical, but rather an action for annulment brought by an official who argued that, despite his transfer from the European Parliament to the Commission, he retained an interest in bringing proceedings against a staff report drawn up by the European Parliament precisely because he was still in active employment ( N
v European Parliament, paragraph 45).
65. Nor is the limit, established in paragraph 63 above, on the possibility that the applicant has of obtaining compensation for the non-material damage caused by the delay in drawing up her CDRs undermined in the present case by the arguments that she has raised. The applicant contends, in order to establish that her action is well-founded, that it cannot be ruled out that a change in the working conditions at the Commission might enable her to resume her duties and that the development of medical knowledge, or even the work of the medical committee responsible for recognising the occupational origin of her illness, might reveal the precise causes of her invalidity and, if appropriate, the circumstances in which she might be called upon to resume her duties in an appropriate working environment. She adds that she might be allowed to take other employment that is compatible with her invalid status, for which a just and equitable appraisal of her work at the Commission would be useful.
66. However, in view of the measures taken by the Commission to provide appropriate working conditions for the applicant, as listed in the contested decision, the intervention of a new and beneficial change in those conditions would appear to be hypothetical. Likewise, the development of medical knowledge or the results of the work of the medical committee are speculative and not likely to render plausible, in law, a reduction or disappearance of the applicant’s condition and her possible return to active service. Moreover, the age of the applicant, who was born in 1954 and who in 2019 will reach the age for automatic retirement under Article 52 of the Staff Regulations, is a factor which makes such return to active service all the more unlikely. Besides which, the assertion that she might engage in other employment that was compatible with her state of health is also a mere hypothesis, which is not substantiated by any concrete evidence.
– The loss of opportunity claimed by the applicant
67. The applicant claims, moreover, that she lost the opportunity to be promoted to grade A 4 – renamed A*12 on 1 May 2004, and subsequently AD 12 on 1 May 2006 – during the 2003 promotion year, although, in view of her seniority in the lower grade and because she had not lost merit, such promotion was more than likely. Since there had been no merit or priority points awarded, the Commission had not been able to consider her for possible promotion since 2003.
68. The Commission, for its part, considers that the reality of the material damage for which the applicant claims compensation on the ground of her alleged loss of opportunity to be promoted to grade AD 12 earlier than she was has not been demonstrated.
69. It is acknowledged by case-law that, provided it is sufficiently substantiated, a loss of opportunity, such as inter alia that of being promoted earlier, constitutes material damage for which compensation may be claimed (judgments of 10 November 2010 in Case T‑260/09 P OHIM
v Simões Dos Santos, paragraph 104, and in AA
v Commission, paragraph 36 above, paragraph 81). In line with that case-law, it must also be held that an official retired automatically on the ground of invalidity retains the right to claim compensation for loss of the opportunity to be promoted, even if his prospects for a return to service are hypothetical, because that loss of opportunity may have caused him damage during the time he was in active employment and is likely to have an impact on the amount of the invalidity allowance paid to him, and on the amount of the retirement pension that will subsequently be awarded to him.
70. The Commission considers, however, that it is very unlikely that new appraisals might lead or might have led to the applicant’s promotion, since the difference between the points accumulated by the applicant and the various promotion thresholds from 2003 to 2008 is significant. The Commission states that the award of priority points by the directorate‑general to which the official is assigned is never permissible, even if the conditions are satisfied, and that any increase in the number of the applicant’s merit points once the contested CDRs are properly finalised would be fairly modest.
71. The Tribunal concludes in that connection that the applicant provides no concrete evidence to support her assertion that she had a very strong chance of being promoted to grade A 4 in 2003. In her application initiating the proceedings she merely mentions her seniority in grade A 5, the average seniority in that grade, without however stating how long she had had such seniority, and the fact that she had not lost merit. She adds no more details in her subsequent observations concerning the fact that she might have been promoted to grade A 4 in 2003 or by 2007 at the latest. Even if, when mentioning the average seniority in the grade, the applicant was referring to the 25% promotion rate listed in point B of Annex I to the Staff Regulations, it should be pointed out that, under Article 6(2) of the Staff Regulations, that rate expresses only the progression of an average career and, moreover, it does not affect the principle of promotion based on merit.
72. However, the Commission for its part provided statistics relating to the promotion threshold from grade A 5 to grade A 4 in 2003, the threshold for promotion from grade A*11, formerly A 5, to grade A*12 in 2005 and the threshold for promotion from grade AD 11 to grade AD 12 in 2006, which support the argument that it was very unlikely that the applicant would have been promoted in one of those promotion years. Likewise, in stating that the applicant would have needed a further 12.5 points to be promoted to AD 12 in 2007, the Commission shows that, although it was not mathematically impossible that she would have been promoted to grade AD 12 before 2008, such a possibility was none the less very unlikely.
73. In addition, it should be pointed out that, despite the addition of one merit point in the 2001/2002 and 2004 CDRs drawn up during the present proceedings and half a point in the 2005 CDR, also drawn up during the present proceedings, the applicant remains well below the promotion thresholds laid down for promotion years prior to 2008, even taking into consideration the hypothetical award of additional priority points.
74. In the light of all the foregoing, the conclusion must be drawn that the applicant is entitled to claim compensation, first, for the non-material damage resulting from the uncertainty and concern regarding her personal future which the absence of the 2001/2002, 2004, 2005 and 2008 CDRs may have caused her when she was in active employment and, secondly, the material damage following the loss of opportunity to be promoted in 2003 and by 2007 at the latest. Owing to the effect of that loss of opportunity, the applicant is also entitled to claim compensation for the damage she suffered because she was deprived of the opportunity to receive a higher invalidity allowance and, in the longer term, a higher retirement pension. It is necessary, however, to take into account when compensating for that material damage the fact that the opportunity lost by the applicant was not very great.
The causal link between the breach and the damage
75. It is settled case-law that only a fault leading to the damage by means of a direct link of cause and effect renders the institution liable. In other words, the European Union can be held liable only for damage which is a sufficiently direct consequence of the wrongful act of the institution concerned ( Missir Mamachi di Lusignano
v Commission, paragraph 35 above, paragraph 179).
76. In particular, an official cannot complain of delay in the drawing-up of his CDR when that delay is attributable to him, even if only partially, or where he contributed considerably to the delay (judgment of 30 September 2003 in Case T‑296/01 Tatti
v Commission, paragraph 60; Lebedef
v Commission, paragraph 49 above, paragraph 57; and Ferrer de Moncada
v Commission, paragraph 61 above, paragraph 85).
77. In that regard, the contention, relied upon by the Commission, that the applicant did not do everything in her power to avoid delays in the drawing up of her CDRs cannot, in the absence of further details, constitute in the present case a circumstance that excludes the liability of the institution.
78. Likewise, the applicant cannot be accused of a lack of general diligence because she failed to give clear information in that regard, as the Commission contends, in order to deny her the right to complain about the delay in the drawing up of her CDR. In the absence of evidence of any wrongdoing, she cannot be criticised for having used, fairly systematically, all the internal legal remedies possible (on that last point, see Ferrer de Moncada
v Commission, paragraph 60 above, paragraph 86) or for having returned to live in her country of origin after she was automatically retired, which necessitated correspondence by post. That being so, the applicant’s use of internal remedies and her return to her country of origin constitute objective factors which, as such, cannot in turn be attributed to the Commission, in the absence of any precise demonstration of the delays in the management of those factors by the Commission.
79. It must therefore be held that there is a causal link between the Commission’s unlawful act and the damage to the extent set out above.
Compensation for the damage suffered by the applicant
80. In the light of all the foregoing, it is now incumbent upon the Tribunal to assess the damage suffered by the applicant and to set the amount of compensation that is due to her.
81. In its defence the Commission requested that, in the event of the Tribunal ruling that the conditions for compensating the applicant were fulfilled, the estimation of the material damage should be made at a later stage and give rise to an examination by the Tribunal only if the parties did not reach agreement on the amount of compensation.
82. This approach must be rejected, however. The Tribunal must take account of the fact that two attempts to reach an amicable settlement have failed. Moreover, the Commission, in its defence and at the hearing, freely chose not to address the question of the amount of compensation that might be due, although it was in a position to take a view on it.
– Compensation for the non-material damage suffered by the applicant
83. In her application initiating the proceedings, the applicant assessed ex æquo et bono
at EUR 35 000 the amount needed to compensate for the non-material damage she had suffered because of the state of uncertainty and distress she had been put in due to the absence of her CDRs for 2001/2002, 2004, 2005 and 2008.
84. In her observations of 4 May 2012, the applicant increased the amount of compensation for the non-material damage, assessing it at EUR 70 000 because of the aggravation of that damage following from the errors committed by the Commission when drawing up the contested CDRs during the present proceedings and from its general lack of diligence.
85. It is necessary in that regard to take into consideration the many lengthy delays caused by the Commission in drawing up the 2001/2002, 2004, 2005 and 2008 CDRs bearing in mind, however, as was stated in paragraph 63 above, the fact that the non-material damage for which compensation may be claimed as a result of the state of uncertainty and concern regarding her professional future with which the applicant was confronted is limited to the period during which she was in active employment, so that the period after 1 June 2009, the date of her automatic retirement on the ground of invalidity, cannot be taken into account.
86. It should also be recalled that the lodging of internal appeals and the applicant’s return to her country of origin constitute objective facts which, as such, are not attributable either to the applicant nor to the Commission as regards the assessment of the damage suffered by the applicant because of the delay in drawing up her CDRs.
87. Lastly, the Tribunal cannot uphold the applicant’s claim for increased compensation for errors allegedly committed by the Commission when drawing up the 2001/2002, 2004, 2005 and 2008 CDRs during the present proceedings, so as not to prejudge their unlawfulness and go beyond the bounds of the dispute as set out in the application.
88. In the light of those factors, the non-material damage suffered by the applicant must be assessed ex æquo et bono at EUR 15 000.
– Compensation for the loss of opportunity to be promoted
89. As regards compensation for the loss of opportunity to be promoted and taking the view that her promotion to grade A 4 during the 2003 promotion year would have been more than likely if she had been properly appraised at the appropriate time, the applicant assessed the damage, in her application initiating the proceedings, at 70% of the difference between the remuneration received as an official in grade A 5 and that which she would have received as an official in grade A 4 with effect from the 2003 promotion year, that is to say, EUR 53 000. According to the applicant, it is necessary to add to that sum EUR 400 per month, corresponding to approximately 70% of the difference between the invalidity allowance she receives and the invalidity allowance she would have received if she had been promoted to grade A 4 in 2003. Lastly, her pension rights should be adjusted through payment of the corresponding contributions.
90. In her observations of 9 July 2012, the applicant assessed the increased compensation due to her as a result of the loss of opportunity to be promoted in 2003, 2005 or by 2007 at the latest, based on a 95% probability, at EUR 410 000, EUR 204 996 and EUR 90 130, respectively. She claims that, since no merit or priority points were awarded, the Commission was unable, after 2003, to consider her for possible promotion and that the many breaches committed by the Commission made it impossible for it to comply with the judgments of 20 April 2005, 13 December 2007 and 6 October 2009, and the decision of 23 April 2007 upholding her complaint against her 2005 CDR.
91. According to case-law, in order to determine the amount of compensation to be paid in respect of loss of opportunity, it is necessary, having identified the nature of the opportunity of which the official has been deprived, to determine the date from which he would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the official of that loss of opportunity (judgment AA
v Commission, paragraph 35 above, paragraph 83).
92. In addition, according to case-law, where possible the opportunity of which an official has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this way it is accepted that the damage suffered may be assessed ex æquo et bono
( AA
v Commission, paragraph 35 above, paragraphs 93 and 94).
93. In the present case, it is impossible for the Tribunal to calculate a mathematical coefficient reflecting the loss of opportunity suffered, first, because the particularly low level of the opportunity which the applicant had of being promoted to grade A 4 or equivalent before 1 March 2008 makes it impossible to quantify and, secondly, because the parties failed to submit to the Tribunal detailed evidence on which to determine that coefficient, with the applicant, in particular, stating merely that it was very likely that she would be promoted before that date.
94. Therefore, making use of the Tribunal’s power to assess the damage suffered ex æquo et bono, it is appropriate to grant the applicant a fixed sum, in compensation for the loss of opportunity that she suffered because her performance in the years 2001/2002, 2004, 2005 and 2008 was not properly appraised within the prescribed time-limits (see, to that effect, judgment of 8 May 2008 in Case F‑6/07 Suvikas
v Council, paragraphs 143 and 144).
95. In assessing the amount of that compensation, it is necessary to take into account the fact that, although the applicant had only a very low chance of moving to a grade above grade A 5 or equivalent before 1 March 2008, it was none the less sufficient to establish the existence of damage for which appropriate compensation can be awarded. Moreover, it must not be forgotten that she was promoted to grade AD 12 during the 2008 promotion year (see, to that effect, judgment of 1 September 2010 in Case T‑91/09 P Skareby
v Commission, paragraph 72).
96. In the light of the foregoing, the Tribunal makes an ex æquo et bono assessment of the compensation to be awarded to the applicant in respect of the material damage resulting from her loss of opportunity to be promoted to grade A 4 before 1 March 2008 at the fixed sum of EUR 4 000.
97. Since the compensation thus awarded is a fixed sum there is no need to order the Commission to adjust the applicant’s pension rights through payment of additional contributions.
3. The claim for annulment of the contested decision in so far as it rejected the request for assistance
98. The applicant criticises the Commission for refusing to launch an administrative inquiry into the harassment of which she allegedly was the victim. She states that it is impossible for her to have access to her administrative file in order to prove the existence of such harassment or of the specific elements of the damage which she alleges she suffered and also, if possible, to provide information to the medical committee called upon to take a decision on the occupational origin of her illness.
99. It must be stated that the application does not enable a definite conclusion to be drawn regarding the legal basis of the plea in support of annulment put forward by the applicant.
100. Assuming that that plea should be interpreted as being based on Article 24 of the Staff Regulations and the manifest error of assessment, it would be necessary to point out that the applicant’s request for an inquiry into psychological harassment was based, in the main, on hypothetical statements made in general terms, without the specific circumstances on which those accusations were made being explained and without the person or persons responsible for the harassment being identified. The applicant’s alleged inability to access her administrative file in order to prove harassment, or elements of the damage she suffered, does not entail an obligation on the administration to launch an inquiry on the strength of those assertions alone. Case-law requires that an official who states that he has suffered harassment must provide prima facie evidence of the attacks to which he claims to have been subjected (order of 5 May 2011 in Case T‑402/09 P Marcuccio
v Commission, paragraphs 37 and 39, and judgment of 5 June 2012 in Case F‑71/10 Cantisani
v Commission, paragraph 78). From a general point of view, in the absence of evidence, the applicant has not provided any substantiation for the harassment.
101. With regard, in particular, to the procrastination in drawing up the applicant’s CDRs, it should be pointed out that those delays, although they constitute a breach of administrative duty, are not per se factors constituting prima facie evidence of an act as serious as harassment.
102. Moreover, in so far as the applicant’s plea should be interpreted as alluding to the assistance she had requested because of her medical problems, it must be held that it is not apparent, in view, first, of the brevity of that plea and, secondly, of the measures taken by the Commission in order to afford the person concerned appropriate working conditions, as listed in the contested decision, that the Commission infringed Article 24 of the Staff Regulations or committed a manifest error of assessment in refusing her that assistance.
103. Lastly, the applicant does not appear to challenge the response, which the appointing authority gave in its decision of 18 June 2010, to the applicant’s request for access to her medical file.
104. The plea must be rejected, as must, therefore, the claim for annulment of the contested decision in so far as it rejected the request for assistance.
Costs
105. Under Article 87(1) of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
106. It follows from the grounds set out in this judgment that the applicant has been successful in her main head of claim, namely to obtain compensation for the damage she suffered as a result of the delays in drawing up her CDRs and that the Commission has therefore been unsuccessful. Moreover, in the form of order sought, the applicant expressly applied for the Commission to pay the costs. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, the Commission must bear its own costs and be ordered to pay the costs incurred by the applicant.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1. Orders the European Commission to pay AK the sum of EUR 15 000 in compensation for the non-material damage she suffered.
2. Orders the European Commission to pay AK the sum of EUR 4 000 in compensation for the loss of opportunity to be promoted to a grade higher than grade A 5 or equivalent before 1 March 2008.
3. Dismisses the action as to the remainder.
4. Declares that the European Commission is to bear its own costs and orders it to pay the costs incurred by AK.