61991TO0038_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case T-38/91,
Dimitrios Coussios, an official of the Commission of the European Communities, residing in Brussels, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue Glesener,
applicant,
v
Commission of the European Communities, represented by Gian Luigi Valsesia, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission decision of 27 July 1990 in so far as it does not adopt the decisions needed to appoint the applicant to the post of Deputy Head of Unit VII.B.3 and make him responsible for "Air Safety" and for an order that the Commission pay the applicant the sum of ECU 100 per day as from 1 December 1989,
THE COURT OF FIRST INSTANCE (Third Chamber),
composed of: B. Vesterdorf, President, C. Yeraris and J. Biancarelli, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Facts and legal background
1 By application received at the Registry of the Court of First Instance on 28 May 1991, Dimitrios Coussios brought an action in which he claimed, first, that the Court should annul the Commission decision of 27 July 1990 in so far as it did not adopt the decisions needed to appoint the applicant to the post of Deputy Head of Unit VII.B.3 and make him responsible for "Air Safety", and did not provide for the supervisory measures required for the proper implementation of the decisions to be adopted and, secondly, that the Commission should be ordered to pay the applicant the sum of ECU 100 per day from 1 December 1989 until the date on which the applicant was effectively entitled to discharge his duties as Deputy Head of Unit and coordinate the Eurocontrol programme and the ATLAS study and assume responsibility for "Air Safety" matters.
2 By a document received at the Registry of the Court of First Instance on 22 July 1991, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance, in respect of which, the applicant lodged his observations in a document received on 27 August 1991.
3 The applicant was recruited by decision of 12 October 1983 as a principal administrator in the Directorate-General for Transport, in Directorate C: "Infrastructures; transport technology; State intervention", Division C2: "Infrastructure costs and charging; transport technology". Then, by a further decision of 11 November 1983, he was assigned within the same Directorate-General to Directorate A: "General programming; international and institutional relations, air and maritime transport", in the "Air transport" division. Finally, by decision of 30 November 1989 of the Director-General of the Directorate-General for Transport, which took effect on 1 December 1989, the applicant was appointed Deputy Head of Unit VII.B.3, in charge of "Air Safety, research and technology", with particular responsibility for "Air Safety".
4 In the applicant' s view, that appointment was not such as to bring the dispute between him and the administration to an end, since he contended that no specific task had been attributed to him, that he was not authorized to attend the meetings of Heads of Unit and Deputy Heads of Unit, that he had no secretary and that his office was not even located in the premises to which the division of which he was ostensibly in charge as Deputy to the Head of Unit was assigned.
5 In those circumstances, on 23 February 1990 the applicant lodged a "complaint under Article 90(2) of the Staff Regulations" of Officials of the European Communities (hereinafter referred to as "the Staff Regulations"), against the abovementioned decision of 30 November 1989 assigning him to Unit VII.B.3 as Deputy Head thereof. He stated: "The complainant contests the decision on the ground that the opposite party simultaneously adopted measures which rendered it inoperative, for example by not assigning to him any of the specific tasks falling within the field allocated to him, by not allowing him to attend meetings of the kind which would enable him to discharge, or enable him to prepare to discharge, the responsibilities of Deputy Head of Unit and by refusing to make available to him working facilities enabling him to carry out the abovementioned tasks... He therefore requests that the Commission take all necessary steps to enable him effectively to carry out the function of Deputy Head of Unit to which he has been appointed. The complainant also requests compensation for the material and non-material damage which he has suffered as the result of a succession of unlawful decisions vitiated by misuse of procedure and misuse of powers, which are in breach of the principle of the protection of legitimate expectations and the provisions of Article 7 et seq. of the Staff Regulations".
6 That "complaint" was registered under No R/57/90 and drew the following reply from the Director-General for Personnel and Administration on 27 July 1990:
"I refer to your abovementioned memorandum and would inform you that, in the absence of any act adversely affecting you within the meaning of Article 90 of the Staff Regulations, the Commission does not intend to act on your complaint as such.
I consider, however, that your complaint may be accepted as a request for assistance under Article 24 of the Staff Regulations and I have decided, having regard to the institution' s duty to have regard for the interests of its officials, to accede to that request.
An examination of your case by my officials, including in particular the discussion at the meeting of 31 May 1990 within the 'interservices' group, has shown that it is appropriate to review your administrative situation within DG VII.
Appropriate contacts are being made with your Directorate-General and I shall inform you of the results as soon as possible."
7 The applicant, considering that his situation had not been changed in any way by the adoption of that "decision" of 27 July 1990, lodged a further "complaint" on 26 October 1990 against the decision notified to him by letter of 27 July 1990 from Richard Hay, Director-General for Personnel and Administration, informing him that, having regard to the institution' s duty to have regard for the interests of its officials, he had decided to accede to the request for assistance "as submitted by the complainant". In that "complaint", the applicant, having set out at length the facts, the various matters on which he had been in dispute with the administration since he joined the Commission, the circumstances of his change of function, the problems associated with his staff report, the context of his appointment which took effect on 1 December 1989 and the various complaint procedures previously resorted to by him, alleged infringement of Articles 5, 7, 25 and 45 of the Staff Regulations, misuse of procedure and failure to observe the procedures for preparing staff reports.
8 The conclusion of his complaint was worded as follows:
"The complainant criticizes the contested decision on the ground that the opposite party simultaneously adopted measures which rendered it inoperative, for example by not assigning to him any of the specific tasks falling within the field allocated to him, by not allowing him to attend meetings of the kind of which would enable him to discharge, or enable him to prepare to discharge, the responsibilities of Deputy Head of Unit and by refusing to make available to him working facilities enabling him to carry out the abovementioned tasks. He therefore requests that the Commission, in accordance with the letter of 27 July 1990 from Richard Hay, Director-General for Personnel and Administration, take all necessary steps to enable him effectively to carry out the function of Deputy Head of Unit to which he has been appointed."
The Commission did not reply to that "complaint".
9 Subsequently, the Director-General of the Directorate-General for Transport, E. Peña, indicated to the two Directors concerned in DG VII by memorandum of 18 January 1991 that, with a view to the reorganisation of DG VII, in the course of which assignments and posts would be redefined, all internal and external documents relating to the Eurocontrol programme and the ATLAS study should be coordinated by Mr Coussios in order to avoid duplication of work and to ensure a consistent approach and that, to that end, all correspondence relating to those matters should be addressed to him, since he would be responsible for pursuing all related matters. That memorandum was confirmed by a further memorandum from the Director-General dated 31 January 1991 concerning the forwarding of all mail to Mr Coussios and by a further memorandum from the Director-General, sent to Mr Coussios on 20 February 1991, informing him that a secretary was being allocated to him in order to enable him fully to discharge his duties as Deputy Head of Unit and also that he would be given a new office, very close to that of the Head of Unit VII.B.3. Those measures were finally confirmed by memorandum from the Director-General sent on 20 February 1991 to Mr Leonardi, Head of Unit VII.B.3.
10 However, the applicant considered that, despite those measures, his situation within the Directorate-General for Transport had not changed in any way and that he was not in a position to discharge his duties.
Procedure and forms of order sought
11 In those circumstances, Mr Coussios brought the present action, which was received at the Registry of the Court of First Instance on 28 May 1991, against which the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court, which was received at the Registry of the Court on 22 July 1991 and in respect of which the applicant submitted his observations in a document lodged at the Registry of the Court on 27 August 1991.
12 In the proceedings on the objection of inadmissibility, the Commission claims that the Court of First Instance should:
(i) uphold the present objection of inadmissibility without considering the substance of the case;
(ii) declare the present action inadmissible;
(iii) order the applicant to pay his own costs pursuant to Articles 87(2) and 88 of the Rules of Procedure.
The applicant contends that the Court of First Instance should:
Dismiss the objection of inadmissibility and prescribe a time-limit within which the Commission must lodge its defence.
13 Pursuant to Article 114(3) of the Rules of Procedure of the Court of First Instance, the remainder of the proceedings on the objection raised are to be oral unless the Court of First Instance decides otherwise. The Court of First Instance (Third Chamber) considers that in the present case the documents before the Court contain sufficient information and that it is unnecessary to open the oral procedure.
Admissibility
14 The Commission contends that the memorandum from the Director-General of Personnel and Administration dated 27 July 1990, referred to above, pursued a two-fold purpose: first to reject the applicant' s complaint of 23 February 1990; in that regard, since the applicant failed to bring an action within three months against that decision rejecting his complaint and did not do so until ten months later, his action was manifestly out of time; secondly, that memorandum also interpreted the applicant' s "complaint" as a "request" within the meaning of Article 90(1) of the Staff Regulations and informed the applicant that, following his request, his administrative situation would be "reconsidered" and that appropriate contacts were being undertaken, the results of which would be communicated to him as soon as possible. Such a memorandum cannot, in any circumstances, be regarded as a final decision having an adverse effect, in other words, one which can be the subject of a complaint or an action.
15 The Commission adds that it did not, either within a period of four months or subsequently, take any definitive decision adversely affecting the applicant in response to his request of 23 February 1990. The applicant should therefore, within a period of three months, as prescribed by the Staff Regulations, have submitted a complaint against the rejection of that request implicit in the lack of response to it. However, the complaint was not submitted until four months after that implied rejection, namely on 26 October 1990, and should therefore be regarded as out of time; accordingly, the action can only be declared inadmissible.
16 The Commission adds that the memorandum of 27 July 1990, which merely announced future "reconsideration" of the applicant' s administrative situation, cannot in any circumstances be regarded as having interrupted the period of three months available to the applicant for instituting proceedings before the Court of First Instance against the rejection implied by that lack of response. In that regard, the Commission refers to the judgments of the Court in Case 401/71 Richez-Parise v Commission [1972] ECR 73 and Case 156/80 Morbelli v Commission [1981] ECR 1357. The fact that the memorandum of 27 July 1990 promised a favourable response to the applicant' s request does not undermine that conclusion in any way since a decision taken by the institution after the expiry of the prescribed period which wholly or partly upholds the complaint or request of the person concerned does not in itself constitute a measure against which an action may be brought. The Commission refers in that regard to the judgment of the Court in Joined Cases 33 and 75/79 Kuhner v Commission [1980] ECR 1677. The position would be different only if that decision in itself constituted an actionable measure; however, that was that was not the case, since the memorandum of 27 July 1990 is neither an act adversely affecting the applicant nor a definitive measure.
17 The Commission maintains that the memorandum of 27 July 1990 does not constitute an act adversely affecting the applicant since it is not capable of directly and adversely affecting a precise legal position (judgment of the Court of Justice in Joined Cases 173/73 and 5/74 Reinarz v Commission [1974] ECR 819). However, as the Court of Justice held in its judgment in Case 32/68 Grasselli v Commission [1969] ECR 505, a mere communication which has the object neither of determining the applicant' s rights in a specific legal situation nor of binding the appointing authority with regard to determining those rights in the future does not constitute an act having an adverse effect. In the present case, the memorandum at issue merely gave a commitment that the administration, by virtue of its general duty to have regard for the interests of officials, would simply "reconsider" the applicant' s administrative situation.
18 As regards the definitive nature of the measure, a necessary precondition for an action to be brought, the Commission submits that, in the present case, the memorandum of 27 July 1990 did not constitute a decision but was merely an interim reply which did not in itself have any legal effect and merely gave notice of fulfilment of an obligation laid down in the Staff Regulations. In that regard, it refers to the judgments of the Court in Case 24/69 Nebe v Commission [1970] ECR 145 and the Case of Richez-Parise v Commission, cited above. However, time begins to run for the purposes of the time-limits laid down in the Staff Regulations only from the moment the competent administrative authority adopts a definitive attitude, as the Court of Justice held in its judgments in Case 53/72 Guillot v Commission [1974] ECR 791 and Case 145/80 Mascetti v Commission [1981] ECR 1975. Moreover, the Court of Justice expressly held in its judgment in Case 7/86 Vincent v Parliament [1987] ECR 2473 that a belated reply by the institution, which merely stated that certain steps were to be taken in order to reconsider the applicant' s case, did not accede to the requests made by the applicant and that therefore the decision to be challenged by the applicant should be the previous implied rejection.
19 In response to the foregoing objection of inadmissibility raised by the Commission, the applicant contends that, having regard to the principles of good faith, sound management and the protection of legitimate expectations, he was legitimately entitled to believe that the adminstration was acting in good faith when it stated that it did not intend acting upon his complaint as such, in view of the absence of any act liable adversely to affect him within the meaning of Article 90 of the Staff Regulations; but that, in view of its obligation to ensure sound management and its decision to accede to his request - redefined and treated as a request - it would take the measures necessary to enable him to perform his duties; and, finally, that by virtue of the principle of the protection of legitimate expectations, the competent authority had in fact undertaken the necessary contacts with his Directorate-General with a view to bringing to an end his administrative situation which he considered to be illegal.
20 The applicant adds that, in his memorandum of 27 July 1990, the Director-General for Personnel and Adminstration informed him that he had decided to accede to his "request" and that, in view of the very terms of his "complaint", which was redefined by the administration as a "request", that positive reaction could take the form only of the adoption of measures enabling him effectively to perform the function of Deputy Head of Unit to which he had been appointed. Consequently, the Director-General for Personnel and Adminstration had indeed adopted a decision directly affecting the applicant' s legal situation, since it implied, initially, that his administrative situation within DG VII would be reconsidered and, subsequently, that that situation would be changed. When the applicant drafted his complaint dated 26 October 1990, that is to say within three months of the favourable decision of 27 July 1990, the applicant had no alternative but to conclude that, despite the steps taken, the administration had not informed him of the measures adopted with a view to bringing to and end the allegedly unlawful situation in which he had been kept within DG VII. His complaint of 26 October 1990 was therefore directed against the Commission' s decision which, whilst recognizing that his "request" was well founded, did not adopt measures capable of bringing to an end his administrative situation which he considered illegal. That failure on the part of the Commission undoubtedly constituted an act adversely affecting the applicant, which could be the subject, initially, of a complaint under Article 90(2) of the Staff Regulations and, subsequently, of an action before the Court of First Instance.
21 Finally, the applicant adds that, by his "memorandum" of 23 February 1990, he challenged within the prescribed period the decision appointing him as Deputy Head of Unit, in so far as that decision was not accompanied by the measures necessary to enable him effectively to discharge his new function. That failure on the part of the appointing authority was particularly serious in that the contested decision was adopted by the Commission solely for the purpose of securing a declaration that the first action brought before the Community court was "devoid of purpose" and thereby having the proceedings brought to an end. It is not acceptable for the Commission to maintain at this stage that the contested decision did not adversely affect him, particularly since after receiving the memorandum of 27 July 1990, the applicant was given formal assurances by senior officials in his Directorate to the effect that his position would be rectified within a very short period when the Directorate-General was reorganized. Thus, the decision to "accede" to the request contained in the memorandum of 27 July 1990 certainly was a definitive decision and not, as contended by the Commission, a merely provisional decision.
22 Having regard to the abovementioned matters of fact and the opposing arguments, the Court considers that, in the first place, it is appropriate to recall in general terms the pre-litigation procedure provided for by Articles 90 and 91 of the Staff Regulations; secondly, to analyse and classify, from the legal point of view, the various memoranda sent successively by the applicant who described them as "complaints" and the Commission' s response to them; and, thirdly, to draw the consequences therefrom regarding the admissibility of the present application.
23 First, as is apparent from their very terms and as the Court of Justice held in its order in Case 16/86 G.P. v Economic and Social Committee [1987] ECR 2409, Articles 90 and 91 of the Staff Regulations makes the admissibility of an action brought by an official against the institution to which he belongs conditional upon proper and full observance of the preliminary administrative procedure laid down thereunder. Where the official wishes the appointing authority to take a decision or adopt a measure relating to him, the administrative procedure must be opened by a request from the person concerned asking the authority to take the decision which he seeks, in accordance with Article 90(1). It is only against a decision rejecting that request, which, in the absence of a reply from the administration, is deemed to have been given after a period of four months, that the person concerned may, within a further period of three months, submit a complaint to the appointing authority in accordance with Article 90(2). On the other hand, where a decision has been taken by the appointing authority and it constitutes an act adversely affecting the official concerned, it is clear that a request under Article 90(1) of the Staff Regulations is meaningless and that the official must then resort to the complaint procedure provided for in Article 90(2) if he intends seeking the annulment, alteration or withdrawal of the decision adversely affecting him (see to that effect the order of the Court of First Instance in Case T-14/91 Weyrich v Commission [1991] ECR II-235).
24 It must also be pointed out that, as has been consistently held, any official may, under Article 90(1) of the Staff Regulations, submit to the appointing authority a request that it take a decision relating to him. However, that does not enable an official to evade the procedures and time-limits prescribed in Articles 90 and 91 of the Staff Regulations for the lodging of requests, complaints and applications to the Court. Those time-limits are a matter of public policy since they were laid down with a view to ensuring clarity and legal certainty and the parties are bound by them (see in particular the judgments of the Court of Justice in Case 232/85 Becker v Commission [1986] ECR 3401 and Case 161/87 Muysers and Others v Court of Auditors [1988] ECR 3037, the judgment of the Court of First Instance in Case T-58/89 Williams v Court of Auditors [1991] ECR II-77 and the order of the Court of First Instance in Weyrich v Commission, cited above.
25 It is therefore appropriate for the Court, secondly, to examine the legal classification of the various letters mentioned above, sent by the applicant to the Commission on 23 February 1990 and 26 October 1990, and the Commission' s reply dated 27 July 1990. As the Court of First Instance held in its judgment in Case T-1/90 Perez-Minguez Casariego v Commission [1991] ECR II-143, the classification of a letter from the applicant as a "request" or "complaint" is a matter for appraisal by the Court alone and is not determined by the intention of the parties.
26 The Court must therefore first consider the appropriate legal classification of the letter sent by the applicant to the appointing authority on 23 February 1990, which he described as a "complaint under Article 90(2) of the Staff Regulations". It commences by stating that the "complaint" was directed against the decision dated 30 November 1989, which took effect on 1 December 1989, whereby the Director-General for Transport appointed him to the post of Deputy Head of Unit VII.B.3, with particular responsibility for "Air Safety" matters. It is clear to the Court that that decision in itself was not capable of adversely affecting the applicant in any way since, as is apparent from the very terms of the application, the applicant, by memorandum of 4 August 1989, had informed his Director-General, at the time of an earlier appointment, of his "astonishment at being assigned to a post not connected with air transport, as had been indicated to him". The applicant himself adds that the decision of 30 November 1989 appointing him as Deputy Head of Unit VII.B.3, with responsibility for "Air Safety" "should have brought to an end the dispute" of long standing between him and the administration.
27 It is apparent from the applicant' s letter dated 23 February 1990, from the application and from all the documents before the Court that the applicant did not intend to criticise the decision appointing him to that post but simply the subsequent procedures for the implementation of that decision which, he claims, did not enable him fully to discharge his duties as Deputy Head of Unit, or to monitor progress on "Air Safety" matters. Thus, in the closing part of his letter of 23 February 1990, the applicant explains that he "criticizes the contested decision on the ground that the opposite party simultaneously adopted measures which rendered it inoperative, for example by not assigning to him any of the specific tasks falling within the field allocated to him, by not allowing him to attend meetings of the kind of which would enable him to discharge, or enable him to prepare to discharge, the responsibilities of Deputy Head of Unit and by refusing to make available to him working facilities enabling him to carry out the abovementioned tasks". And to demonstrate that the abovementioned decision of 30 November 1989 was in no way capable of adversely affecting the applicant, it need merely be stated that, in the closing part of that letter of 23 February 1990, the applicant states as follows: "He therefore requests that the Commission take all necessary steps to enable him effectively to carry out the function of Deputy Head of Unit to which he has been appointed. The complainant also requests compensation for the material and non-material damage which he has suffered."
It is apparent from all the foregoing that the letter of 23 February 1990, despite being described by the applicant as a "complaint", was in fact a request under Article 90(1) of the Staff Regulations.
28 In the present case, having regard to the provisions of Article 90(1) of the Staff Regulations analysed above, it is clear that, in view of the lack of reaction by the competent authority, the request of 23 February 1990 was rejected by implication on 23 June 1990. The applicant then had at his disposal, pursuant to Article 90(2) of the Staff Regulations, three months in which to lodge a complaint against that implied rejection. It is also clear that no complaint was lodged by the applicant before 23 September, the date on which that period expired. It follows that the request of 23 February 1990 cannot serve as a basis for the present application.
29 The Court must now consider the legal classification and importance to be attributed to the memorandum sent by the Commission to the applicant on 27 July 1990, that is to say after the implied rejection, and also any effect which it may have had from the procedural point of view. The first paragraph of that memorandum informed the applicant that, in the absence of any act capable of adversely affecting him within the meaning of Article 90 of the Staff Regulations, the Commission did not intend acting upon his "complaint" as such. The Commission was quite correct, as has just been stated, to consider that in the absence of an act having an adverse effect, a favourable response to a "complaint" was impossible. The fact nevertheless remains that that memorandum constitutes an express rejection of the request of 23 February 1990, since the applicant had described it as a "complaint" and that express rejection, simply confirming the earlier implied rejection, certainly did not cause time to start running again for the purposes of the pre-litigation time-limits in favour of the applicant. Although the last sub-paragraph of Article 91(3) of the Staff Regulations states that "nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh", that provision, which must be strictly interpreted since it concerns the way in which time-limits for actions are to be calculated, cannot be applied to the stage of a request, before the lodgement of a complaint. It follows that the express rejection of a request, after there has been an implied decision rejecting that request, must be regarded as a purely confirmatory measure which is not capable of entitling the official concerned to pursue the pre-litigation procedure.
30 With regard to the second part of the memorandum of 27 July 1990 sent by the Commission to the applicant, it appears, in the first place, to be a re-classification of the applicant' s "complaint" as a request, secondly, a decision to accede to that request, and, thirdly, an interim reply, since decisions and measures were to be taken after the applicant' s administrative situation had been reconsidered. In the first place, the Commission considered that the applicant' s letter of 23 February 1990 was acceptable as a request for assistance under Article 24 of the Staff Regulations; secondly, the Director-General for Personnel and Administration informed the applicant that "I have decided, having regard to the institution' s duty to have regard for the interests of its officials, to accede to that request"; and thirdly, the applicant was informed that his administrative situation within DG VII was being reconsidered and that the results would be notified to him as soon as possible.
31 Whilst it is clear that that part of the Commission' s memorandum dated 27 July 1990 appears to some extent to constitute a decision since the Director-General for Personnel and Administration states that he "decided" to accede to the request for assistance under Article 24 of the Staff Regulations, the position thus taken cannot in any event adversely affect the applicant, first because, specifically, the latter is informed that his request will be acceded to and, secondly, because that decision was accompanied by an interim reply pending comprehensive reconsideration of his administrative position. As has been consistently held, only acts capable of directly affecting a given legal situation can be regarded as acts having an adverse effect (judgment of the Court of Justice in Grasselli v Commission, cited above). As has likewise been consistently held, a reply by which the administration informs the person concerned that his request is being considered does not constitute a decision. Such a reply has no legal effect, and is not capable, in particular, of extending the time-limits provided for in Articles 90 and 91 of the Staff Regulations (judgments of the Court of Justice in Nebe v Commission and Richez-Parise v Commission, cited above; see also its judgment in Vincent v Parliament, cited above).
32 Finally, it must be added that, as held by the Court of Justice in its order in Case 371/87 Progoulis v Commission [1988] ECR 3081, where a request submitted by an official to the appointing authority has been rejected by an implied decision, a subsequent decision by that authority essentially acceding to the request is not a measure adversely affecting him separate from the implied decision rejecting the request.
33 It is apparent from all the foregoing that, as a result of an implied decision rejecting his request, the applicant was under an obligation to submit a complaint within the meaning of Article 90(2) of the Staff Regulations within a period of three months. Not having done so, he cannot in any event rely on any legal effect which might derive from the Commission' s memorandum of 27 July 1990, as analysed above. Before any action is brought against an act of the appointing authority having an adverse effect, there must without fail have been a complaint prior to action which has been rejected by an express or implied decision. An action brought before completion of the pre-litigation procedure, being premature, is inadmissible under Article 91(2) of the Staff Regulations (judgment of the Court of First Instance in joined Cases T-47/89 and T-82/89 Marcato v Commission [1990] ECR II-231).
34 As regards the letter sent on 26 October 1990 to the Commission by the applicant, which he classified as a "complaint" under Article 90(2) of the Staff Regulations, it must also be reclassified as a request within the meaning of Article 90(1) of the Staff Regulations. In fact, even though the applicant states at the beginning of that letter that his "complaint" is brought "against the decision notified to him by letter of 27 July 1990 from Richard Hay, Director-General for Personnel and Administration, informing him that, having regard to the institution' s duty to have regard to the interests of its officials, he had decided to accede to the request for assistance as submitted by the complainant", that letter is drafted in practically the same terms as the letter of 23 February 1990 examined above, and the closing part states that "The complainant criticizes the contested decision on the ground that the opposite party simultaneously adopted measures which rendered it inoperative, for example by not assigning to him any of the specific tasks falling within the field allocated to him, by not allowing him to attend meetings of the kind of which would enable him to discharge, or enable him to prepare to discharge, the responsibilities of Deputy Head of Unit and by refusing to make available to him working facilities enabling him to carry out the abovementioned tasks. He therefore requests that the Commission, in accordance with the letter of 27 July 1990 from Richard Hay, Director-General for Personnel and Administration, take all necessary steps to enable him effectively to carry out the function of Deputy Head of Unit to which he has been appointed."
35 It is thus clear from an analysis of that request that it is certainly not directed against the position taken by the Commission on 27 July 1990 but, on the contrary, seeks to ensure that the Commission adopt all necessary decisions, provisions, or measures to enable the applicant effectively to discharge his duties under appropriate conditions. Such a letter can be classified only as a request within the meaning of Article 90(1) of the Staff Regulations. Moreover, that request was perfectly admissible since, as has been consistently held, in view of the fact that no time-limit is provided for within which a request within the meaning of Article 90(1) of the Staff Regulations is to be submitted, it cannot be held against an official that he has submitted a further request to the appointing authority in the same terms even where the Community Court has previously dismissed an application with the same subject-matter, though solely on the ground that the preliminary administrative procedure has not been adhered to; his right to have recourse to the means of redress provided for by the Staff Regulations, subject to compliance with the requirements thereof, is thus left intact (judgment of the Court of Justice in Case 29/80 Reinarz v Commission [1981] ECR 1311).
36 However, as a result of the administration' s silence, there was an implied decision rejecting that request on 27 February 1991. It was then incumbent upon the applicant to lodge a complaint against that implied decision within the period of three months provided for in Article 90(2) of the Staff Regulations. Since he did not do so, and for the same reasons as those set out above, the present application which was received at the Registry of the Court of First Instance on 28 May 1991, is inadmissible since it was not preceded by a complete and proper pre-litigation procedure (judgment of the Court of First Instance in Marcato v Commission, cited above).
Decision on costs
Costs
37 Pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs. However, pursuant to Article 88 of those rules, in proceedings between the Communities and their servants the institutions are to bear their own costs.
Operative part
On those grounds,
The Court of First Instance (Third Chamber)
hereby orders as follows:
1. The application is dismissed as inadmissible;
2. The parties are ordered to pay their own costs.
Luxembourg, 1 October 1991.