JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

16 September 1998

Case T-193/96

Lars Bo Rasmussen

v

Commission of the European Communities

‛Officials — Staff report — Carryover of the last report — Placed too late in the personal file of the person concerned’

Full text in French II-1495

Application for:

annulment of the decision of the appointing authority of the Commission of 23 October 1995 rejecting the applicant's request for his 1991/93 staff report to be drawn up and for compensation for the nonmaterial damage which he purportedly sustained on account of the failure to place the report in his personal file in good time.

Decision:

The sum of BEF 35000 to be paid to the applicant; for the remainder, application dismissed.

Abstract of the Judgment

The applicant was recruited by the Commission in 1975. In 1989 he was promoted to principal administrator in Grade A 5 and on 1 March 1991 he was appointed to the secretariat of the Advisory Committee on Safety, Hygiene and Health Protection at Work in DG V (Employment, Industrial Relations and Social Affairs). On 1 October 1994, following the restructuring of Directorate F (Public health and safety at work) of DG V (Directorate V.F), he was reassigned to a newly created unit (Promotion of health and monitoring of diseases).

On 21 February 1994 the applicant's Head of Unit, Mr Morettini, sent him a draft staff report for the period between 1 July 1991 and 30 June 1993, which the applicant refused to sign.

On 6 May 1994, at a meeting with Mr Hunter, Director of Directorate V.F, the applicant signed a statement carrying over his staff report for the period between 1 July 1989 and 30 June 1991.

On 24 May 1994 the applicant asked Mr Hunter to regard that statement as null and void on the grounds that his responsibilities had undergone significant changes during the 1991/93 report period and that at the time when he signed the statement he had not been thinking clearly.

The statement was sent to DG IX (Personnel and Administration) which sent it back marked ‘Not in order (description of duties missing)’. On 20 January 1995 DG IX registered the statement, marked ‘In order’, a list of the applicant's duties during the 1991/93 period being annexed thereto.

On 25 July 1995 the applicant asked for a ‘staff report valid de jure and de facto’ for the 1991/93 period and sought compensation in the amount of BEF 500000 for damage sustained as a result of the failure to comply with the rules governing the drawing up of staff reports. The Commission rejected that request on 23 October 1995. On 7 February 1996 the applicant submitted a complaint reiterating his position.

By decision of 22 July 1996, the Commission rejected the ground of action based on the failure to draw up a valid staff report but, by decision of 31 July 1996, agreed to pay the applicant BEF 35000 by way of compensation for nonmaterial damage. The applicant rejected that offer as inadequate and brought the present proceedings on 26 November 1996.

Admissibility

The Community judicature may dismiss an action as inadmissible on the ground that its subject-matter is identical to that of a previous case where the two actions are between the same parties, have the same purpose and are based on the same submissions. The act whose annulment is sought is an essential element of the subject-matter of an action. However, even where the arguments relied upon in support of an action are in part identical to those relied on during previous proceedings, the action is not a mere repetition of those proceedings, but a new dispute, where it raises issues which have not yet been settled (paragraph 20).

See: T-28/89 Maindiaux and Others v ESC [1990] ECR II-59, paras 23 and 24

In T-130/95 X v Commission [1996] ECR-SC II-1609, the applicant sought annulment of the Commission decision not to promote him to Grade A 4 during the 1994 promotions procedure, whereas the applicant in the present case seeks annulment of the Commission decision rejecting the complaint relating to his request for a valid 1991/93 staff report. The act contested in the present action is therefore quite distinct from that at issue in Case T-130/95 and raises issues which have not yet been settled by the Court of First Instance. The application for annulment is therefore admissible.

The absence of a staff report from the personal file of an official, owing to a delay in its preparation, is capable of giving rise to nonmaterial damage not only if the official's career could have been affected thereby but also if this put the official in an uncertain or anxious state of mind with regard to his future (paragraph 24).

See: T-496/93 Alio v Commission [1995] ECR-SC II-405, para. 89; T-41/95 Moat v Commission [1996] ECR-SC II-939, para. 54; Case T-386/94 Allo v Commission [1996] ECR-SC II-1161, para. 76

The applicant maintains that he suffered nonmaterial damage as a result of his uncertain and anxious state of mind with regard to his future, a state brought about by the fact that his staff report had not been placed in his personal file in good time. The applicant sets the damage sustained at a figure of BEF 500000. In the view of the Court, the applicant has sufficiently identified the event which gave rise to the nonmaterial damage which he purports to have suffered (paragraphs 25 and 26).

See: T-37/89 Hanning v Parliament [1990] ECR II-463, para. 82

Accordingly, the claim for damages is also admissible.

The application for annulment

The plea in law alleging infringement of Articles 43 and 26 of the Staff Regulations

First, Mr Hunter was undisputedly the applicant's assessor whose task it was to draw up his 1991/93 staff report. The applicant's argument alleging lack of competence is therefore unfounded.

Secondly, changes in the applicant's responsibilities were not so significant as to justify a new 1991/93 staff report. The applicant's assertion to the contrary is therefore groundless.

Thirdly, as regards the applicant's allegation that the conversation on 6 May 1994 did not constitute the interview prescribed in the guidelines for assessors, it should be noted that the applicant challenges the carrying over of his 1989/91 staff report. According to the Commission's internal regulations, this is a procedure for the drawing up of a statement of carryover, to be signed by the assessor, the person assessed and his immediate superior, and to which is attached a description of the official's responsibilities. In such cases, the interview which must precede the adoption of a new staff report serves merely to confirm that carryover is in principle appropriate and to resolve any difficulties involved in describing the official's responsibilities. Secondly, since the applicant had never challenged the description attached to his 1989/91 staff report of the responsibilities attaching to his post within DG V, it was quite proper for the purposes of the carryover not to make any material changes to it. Thirdly, during the conversation on 6 May 1994, the question of the applicant's career within the Commission had been addressed and he had signed the statement of carryover.

Consequently, the conversation on 6 May 1994 constituted the interview prescribed by the guidelines for assessors, following which a statement had been drawn up to the effect that his 1989/91 staff report would be carried over.

The applicant also alleges infringement of Article 26 of the Staff Regulations, in that he had not been consulted regarding the description of his responsibilities attached to the definitive version of the statement carrying over his 1989/91 staff report and had been unable to comment. However, that argument has already been rejected by the Court of First Instance in X v Commission, cited above.

The first plea in law must therefore be rejected.

Tlie plea in law alleging breach of the duty to have due regard for the welfare of officials and of the principle of equal treatment of officials

In proceedings brought by officials, the application and the prior complaint through official channels must have the same subject-matter and contain the same heads of claim, based on the same matters (paragraph 47).

See: T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 9; T-58/91 Dooss and Fischer w Commission [1993] ECR II-147, para. 83; T-159/95 Dricot and Others v Commission [1997] ECR-SC II-1035, para. 22

Since the applicant did not rely in his complaint on breach of the duty to have due regard for the welfare of officials or of the principle of equal treatment of officials, this plea is inadmissible.

The claim for damages

The first paragraph of Article 43 of the Staff Regulations provides that ‘[t]he 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 in accordance with Article 110’. The first paragraph of Article 6 of the general rules for implementing Article 43 of the Staff Regulations, to be found in the guidelines for assessors, states that the assessor is to draw up the staff report and send it to the person assessed before 30 November following the end of the reference period. Lastly, an official whose personal file is irregular and incomplete suffers nonmaterial damage owing to the resultant uncertainty and anxiety concerning his professional future (paragraph 52).

See: T-73/89 Barbi v Commission [1990] ECR II-619, para. 41

The applicant's file was not complete in respect of the 1991/93 period until 20 January 1995. The Commission was very late in drawing up the applicant's 1991/93 staff report and in placing it in his personal file, and it cannot be established that the applicant contributed in any way to that delay. The failure to place the report in his file in good time constitutes maladministration, and the applicant is entitled therefore to compensation for the nonmaterial damage sustained. The Commission has already acknowledged its liability in agreeing to pay the applicant the sum of BEF 35000 by way of damages. In the view of the Court, that amount is adequate reparation. The claim for damages must therefore be rejected to the extent that the amount sought is in excess of BEF 35000.

Operative part:

The Commission is ordered to pay the applicant the sum of BEF 35000, as offered, if it has not already done so.

The remainder of the application is dismissed.