61983CJ0168_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 168/83
LAURA PASQUALI-GHERARDI, A SECRETARY/SHORTHAND-TYPIST IN GRADE C 2, STEP 3, AT THE EUROPEAN PARLIAMENT, RESIDING AT 17 BOULEVARD ROYAL, LUXEMBOURG, REPRESENTED BY V . BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 18 A RUE DES GLACIS,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY M . PETER, HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION, RESIDING IN LUXEMBOURG, ASSISTED BY A . BONN, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION FOR AN AWARD OF DAMAGES ON THE GROUND OF WRONGFUL ACTS OR OMISSIONS ON THE PART OF THE ADMINISTRATION,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 2 AUGUST 1983, MRS LAURA PASQUALI-GHERARDI, A SECRETARY/SHORTHAND-TYPIST AT THE EUROPEAN PARLIAMENT, BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS FOR A DECLARATION THAT THERE HAVE BEEN TWO WRONGFUL OMISSIONS ON THE PART OF THE EUROPEAN PARLIAMENT WHICH HAVE CAUSED A DETERIORATION IN THE APPLICANT ' S STATE OF HEALTH ; THE APPLICANT ALSO CLAIMS THAT SHE SHOULD BE AWARDED DAMAGES TOGETHER WITH INTEREST THEREON OR ALTERNATIVELY THAT THREE EXPERT WITNESSES SHOULD BE APPOINTED TO ASSESS THE DAMAGES AND - IF NECESSARY - TO GIVE AN OPINION UPON THE ADMINISTRATIVE DELAYS CAUSED BY THE DEFENDANT AND THE DETERIORATION IN THE APPLICANT ' S VISION AND GENERAL STATE OF HEALTH .
2 THE APPLICANT BEGAN WORK FOR THE EUROPEAN PARLIAMENT ON 17 OCTOBER 1979 AS AN ITALIAN-LANGUAGE SHORTHAND-TYPIST IN GRADE C 3 . ON 15 NOVEMBER OF THAT YEAR, SHE SUFFERED AN ACCIDENT AT WORK AS A RESULT OF WHICH HER LEFT EYE SUSTAINED IRREVERSIBLE DAMAGE . SHE RESUMED HER WORK ON 3 DECEMBER 1979 . ON 18 DECEMBER 1979, SHE RETURNED TO ROME TO CONSULT AN EYE SPECIALIST AND STAYED AWAY ON SICK LEAVE FOR EIGHT MONTHS . AFTER THAT SHE RETURNED TO WORK .
3 FOLLOWING A TIME IN WHICH PERIODS OF WORK ALTERNATED WITH PERIODS OF SICK LEAVE, THE APPLICANT WAS DISMISSED WITH EFFECT FROM 30 APRIL 1981 ON THE BASIS OF AN
UNFAVOURABLE REPORT ON HER PROBATIONARY PERIOD . HOWEVER, THE SECRETARY-GENERAL OF THE PARLIAMENT RESCINDED THAT DECISION BY A LETTER OF 2 DECEMBER 1981 . HE THEN REFERRED THE APPLICANT ' S CASE TO THE INVALIDITY COMMITTEE IN ORDER TO ESTABLISH TO WHAT EXTENT SHE WAS STILL ABLE TO CARRY OUT THE DUTIES CORRESPONDING TO A POST IN HER CAREER BRACKET . ON 28 JANUARY 1983, THE INVALIDITY COMMITTEE DELIVERED ITS REPORT . THAT REPORT STATES THAT ' THE AFTER-EFFECTS OF MRS GHERARDI ' S ACCIDENT ON 15 NOVEMBER 1979 CONSTITUTE A CONDITION OF PARTIAL INVALIDITY PREVENTING HER FROM CONTINUING IN HER PRESENT POST . THE COMMITTEE RECOMMENDS THAT SHE SHOULD BE ASSIGNED TO A POST CORRESPONDING TO HER CAREER BRACKET BUT NOT INVOLVING A HIGH LEVEL OF VISUAL EFFORT . '
THE INVALIDITY COMMITTEE ' S CONCLUSIONS WERE NOT AT FIRST COMMUNICATED TO THE APPLICANT HERSELF . THEY WERE SENT TO HER LAWYER ONLY AFTER HE HAD INTERVENED .
4 THE PARLIAMENT ' S ADMINISTRATION THEN OFFERED THE APPLICANT TWO POSTS WHICH IT CONSIDERED TO SATISFY THE INVALIDITY COMMITTEE ' S RECOMMENDATION, ONE IN THE MESSENGERS SERVICE AND THE OTHER IN PERSONNEL ARCHIVES . THE APPLICANT TOOK THE VIEW THAT THOSE POSTS WOULD INVOLVE COMPLETELY UNREWARDING WORK AND OFFER NO CHANCES OF PROMOTION AND DID NOT ACCEPT EITHER OFFER .
5 MRS PASQUALI-GHERARDI THEN BROUGHT THIS ACTION . IN HER APPLICATION, SHE ADMITS THAT SHE DID NOT BEFOREHAND LODGE A COMPLAINT THROUGH OFFICIAL CHANNELS . IN ORDER TO JUSTIFY HER FAILURE TO LODGE A PRIOR COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS, SHE ARGUES THAT THE CONDITION IN ARTICLE 91 OF THE STAFF REGULATIONS IS ONLY APPLICABLE TO MEASURES WHICH THE APPOINTING AUTHORITY CAN REVIEW . IN THIS INSTANCE, THERE IS NOTHING TO REVIEW, SINCE THE WRONGS COMMITTED ARE IRREPARABLE .
6 THE APPLICANT ALLEGES WRONGFUL CONDUCT AGAINST THE PARLIAMENT UNDER TWO HEADS : IN THE FIRST PLACE, IT DID NOT FORWARD THE INVALIDITY COMMITTEE ' S CONCLUSIONS TO HER ; IN THE SECOND PLACE, IT DID NOT CARRY OUT THE COMMITTEE ' S RECOMMENDATION THAT SHE SHOULD BE ASSIGNED TO A POST CORRESPONDING TO HER CAREER BRACKET BUT NOT INVOLVING A HIGH LEVEL OF VISUAL EFFORT . SHE CLAIMS THAT, AS THE YEARS HAVE PASSED, AND ESPECIALLY SINCE 1982, HER STATE OF HEALTH HAS BEEN GETTING WORSE . FIRST OF ALL, THE STRESS SHE HAS BEEN UNDER AND THE PAIN-KILLING DRUGS ( ANALGESICS ) WHICH SHE HAS HAD TO TAKE HAVE DONE IRREPARABLE HARM TO HER GENERAL STATE OF HEALTH . FURTHERMORE, HER DIFFICULTIES OF VISION HAVE BECOME SO BAD THAT HER FORMER PASTIMES ( WATCHING TELEVISION, SPORT, THEATRE, READING, ETC .) ARE NOW DENIED HER AND SHE CAN NO LONGER DRIVE A CAR .
7 IN ITS DEFENCE, THE PARLIAMENT MAINTAINS THAT THE APPLICATION IS INADMISSIBLE SINCE IT WAS LODGED WITHOUT ANY PRIOR COMPLAINT HAVING BEEN MADE IN ACCORDANCE WITH ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS .
8 THE PARLIAMENT ADDS THAT IN ANY EVENT THE APPLICATION IS UNFOUNDED . IT STATES THAT IT HAS BEEN SHOWN THAT THE INVALIDITY COMMITTEE ' S RECOMMENDATION WAS FORWARDED TO THE APPLICANT ' S LAWYER AT HIS REQUEST . IN ADDITION, THE PARLIAMENT POINTS OUT THAT THE APPLICANT HAS NOT GIVEN ANY INDICATION OF HOW ITS DELAY IN MAKING THAT RECOMMENDATION AVAILABLE TO HER CAUSED HER TO SUFFER DAMAGE .
9 AS REGARDS THE APPLICANT ' S COMPLAINT THAT SHE WAS NOT ASSIGNED TO A POSITION BETTER SUITED TO HER VISUAL CAPACITY, THE DEFENDANT RECOGNIZES THAT IT IS UNDER A DUTY TO HAVE REGARD TO THE INTERESTS OF ITS OFFICIALS . THAT INDEED WAS THE REASON WHY THE APPLICANT WAS ALLOWED TO TAKE SICK LEAVE FOR LONG PERIODS IN 1980 AND ALSO LATER . EVEN BEFORE THE INVALIDITY COMMITTEE MADE ITS RECOMMENDATION ON 28 JANUARY 1983, THE PARLIAMENT ' S ADMINISTRATION HAD ATTEMPTED TO FIND A POST WHICH WOULD BE SUITABLE FOR THE APPLICANT ' S STATE OF HEALTH . THE PARLIAMENT SAYS THAT IT IS STILL LOOKING FOR SUCH A POST, WHICH THE APPLICANT ' S LAWYER HIMSELF DESCRIBED AS A ' MIRACLE JOB ' .
10 THE PARLIAMENT ' S POSITION IS THEREFORE THAT, ALTHOUGH IT HAS NOT YET FOUND THE APPLICANT A SUITABLE POSITION, IT HAS NOT FAILED IN ITS OBLIGATIONS TOWARDS HER .
ADMISSIBILITY
11 ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS PROVIDES THAT AN APPEAL TO THE COURT LIES ONLY IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT PURSUANT TO ARTICLE 90 ( 2 ) AND IF THE COMPLAINT HAS BEEN REJECTED BY AN EXPRESS OR IMPLIED DECISION . THE OBJECT OF THAT PROVISION IS TO PERMIT AND ENCOURAGE AN AMICABLE SETTLEMENT OF DISPUTES WHICH ARISE BETWEEN OFFICIALS OR OTHER SERVANTS OF THE COMMUNITIES AND THE ADMINISTRATION . THE COURT HAS UPHELD THE ADMISSIBILITY OF ACTIONS IN THE ABSENCE OF A PRIOR COMPLAINT ONLY IN THE CASE OF APPEALS AGAINST DECISIONS OF SELECTION BOARDS . IN SUCH CASES, THE APPOINTING AUTHORITY DOES NOT HAVE THE POWER TO ANNUL OR AMEND THE SELECTION BOARD ' S DECISIONS . IN THIS CASE, HOWEVER, A PRIOR COMPLAINT MIGHT HAVE SERVED A USEFUL PURPOSE . IT WAS ESSENTIAL FOR THE DEFENDANT TO BE PUT IN A POSITION TO KNOW THE COMPLAINTS MADE AGAINST IT, SO AS TO ENABLE IT, WHERE APPROPRIATE, TO ENDEAVOUR TO SETTLE THE DISPUTE BEFORE AN ACTION WAS BROUGHT . IN THE ABSENCE OF A PRIOR COMPLAINT, THE APPLICATION IS THEREFORE INADMISSIBLE .
Decision on costs
COSTS
12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
13 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .