ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 June 1998

Case T-173/97

Augusto Fichtner

v

Commission of the European Communities

‛Officials — Late staff report — Promotion — Comparative examination of merits — Compensation for damage — Application manifestly inadmissible or entirely unfounded’

Full text in Italian II-873

Application for:

first, annulment of the Commission's decision of 13 September 1996 refusing to include the applicant on the list of officials most eligible for promotion in the 1996 promotions procedure and, second, damages.

Decision:

Application dismissed.

Abstract of the Order

The applicant is a Grade B 4 official of the Commission employed at the Joint Research Institute in Ispra (Italy).

During the 1996 promotions procedure he was not included on the list of officials most eligible for promotion to Grade B 3 published by the Commission (list of officials most eligible for promotion).

By note registered on 15 November 1996 the applicant lodged a complaint within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations) against the decision refusing to include him on that list; he alleged that he had been adversely affected by the delay in drawing up his staff report for the period 1 July 1993 to 30 June 1995 (1993/95 staff report). In the same note he requested that the Commission pay him damages for the material and nonmaterial harm sustained.

On 25 February 1997 he received his 1993/95 staff report.

By decision óf 5 March 1997, which was notified to the applicant on 12 March 1997, the Commission rejected his complaint and informed him that his claim for damages would be dealt with in a separate reply.

On 17 March 1997 the Commission informed the applicant that he had been awarded compensation of BFR 15000 in respect of the delay in drawing up his 1993/95 staff report but pointed out that it was solely because of the uncertainty caused by the delay in forwarding the draft report that the compensation had been awarded.

Law

Pursuant to Article 111 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible, the Court may, without taking further steps in the proceedings, determine the action by reasoned order. In the present case the Court considers that there is sufficient evidence before it and decides that there is no need to open the oral procedure (paragraph 10).

Claims for annulment

It is settled case-law that the fact that a file was irregular or incomplete for lack of a staff report at the time when the comparative merits of candidates were examined does not justify the annulment of a decision on promotion unless it is shown that that fact could have had a decisive effect on the promotion procedure (paragraph 17).

See: 7/86 Vincent v Parliament [1987] ECR 2473, paras 16 and 17; C-68/91 P Moritz v Commission [1992] ECR I-6849, paras 16 and 17; T-18/93 Marcato v Commission [1994] ECR-SC II-681, para. 73; T-496/93 Allo v Commission [1995] ECR-SC II-405, para. 71

In the present case for the period 1 July 1991 to 30 June 1995 the three candidates on the list of officials most eligible for promotion had merits far higher than the applicant's. The Commission was therefore quite correct to consider that even if the appointing authority had had the applicant's 1993/95 staff report available when it examined the comparative merits of the candidates for promotion it would not have been able to include him on the list of the most deserving officials. It follows that the absence of the report had no impact on the applicant's exclusion from the list. Since this finding cannot be affected by the applicant's remaining arguments his claims for annulment are rejected as manifestly unfounded (paragraphs 18 to 21).

Claims for compensation

The Court observes that in so far as the harm in respect of which compensation is sought results from the failure to include the applicant on the list of officials most eligible for promotion, the claims for compensation are directly linked to the claims for annulment. Since the latter claims have been rejected as manifestly ill founded the former claims must also be rejected (paragraph 24).

See: T-1/91 Della Pietra v Commission [1992] ECR II-2145, para. 34; T-50/92 Fioroni v Parliament [1993] ECR II-555, paras 45 and 46; T-361/94 Weir v Commission [1996] ECR-SC II-381, para. 48

In so far as the damage in respect of which compensation is sought results from the fact that the applicant's 1993/95 staff report was late, the Court observes that the claims for compensation are not linked with the claims for annulment. In such a case the administrative procedure must commence with the submission of a request within the meaning of Article 90(1) of the Staff Regulations for compensation for the harm sustained, followed, if appropriate, by a complaint against the decision rejecting the request. Since no such complaint was submitted in the present case the Court declares that the claims for compensation are manifestly inadmissible (paragraphs 25 to 30).

See: T-5/90 Marcato v Commission [1991] ECR II-731, paras 49 and 50; T-53/92 Piene de Stachelski v Commission [1993] ECR II-35, para. 18; T-4/96 S v Court of Justice [1997] ECR II-1125, para. 106

Operative part:

The application is dismissed.