JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

28 May 1997

Case T-59/96

Jean-Louis Búrban

v

European Parliament

‛Officials — Delay in drawing up staff reports — Action for damages — Admissibility — Maladministration — Loss’

Full text in French II-331

Application for:

compensation for the material and nonmaterial loss suffered by the applicant by reason of the delay in drawing up his staff reports for the periods 1991-1992 and 1993-1994.

Decision:

Parliament ordered to pay damages.

Abstract of the Judgment

The applicant, Mr Búrban, entered the service of the Parliament on 16 September 1968 as an Administrator in the Legal Service. He was appointed to Grade A 7, Step 2.

On 1 January 1978 he was promoted to Grade A 4. In 1980 he temporarily took over the duties of Head of the ‘Social Affairs’ Division of the Directorate-General for Research of the Parliament. On 1 May 1982 he obtained a transfer to the post of Assistant Head of the European Parliament's Information Office in France.

From 1992 he applied for several Grade A 3 posts. His applications were all rejected.

By letter of 3 May 1995 the applicant informed the President of the Parliament that his staff reports for the periods from 1 January 1991 to 1 January 1993 (staff report for 1991-1992) and from 1 January 1993 to 1 January 1995 (staff report for 1993-1994) had not been drawn up.

He requested that those staff reports be drawn up as soon as possible in the prescribed form and sought compensation for his material and nonmaterial loss.

The provisional staff reports for 1991-1992 and 1993-1994 were signed by the first reporting officer on 17 May 1995. In his staff report for 1991-1992 the applicant was judged to be ‘excellent’ in respect of the knowledge necessary for the performance of his duties and his comprehension and judgment, ‘very good’ in respect of his initiative and ability to make proposals, the quality of his work, his conscientiousness and relations with his colleagues and ‘good’ in respect of his organizational skills and the reliability of his work. In his staff report for 1993-1994 he was judged ‘excellent’ in respect of the knowledge necessary for the performance of his duties and his comprehension and judgment, ‘very good’ in respect of Ins initiative and ability to make proposals, quality of work, reliability of work, conscientiousness and relations with his colleagues, and ‘good’ in respect of his organizational skills.

Further to the applicant's request in a letter dated 13 June 1995, the Reports Committee issued Opinion No 66/95 on 25 July 1995 (Opinion No 66/95).

On 4 October 1995 the applicant sent a second letter to the President of the Parliament describing his letter of 3 May 1995 as a request under Article 90(1) of the Staff Regulations of Officials of the European Communities (the Staff Regulations). In that second letter, described as a complaint under Article 90(2) of the Staff Regulations, he stated that, since the staff reports for 1991-1992 and 1993-1994 had been drawn up, the complaint ‘[was] not intended to challenge the reports finally drawn up but [related] to the administration's failure to respond in respect of the reparation of the serious nonmaterial and material loss resulting from that failure to act’.

By letter of 8 January 1996 the Secretary-General of the Parliament informed the applicant that, having examined the comments which the applicant had submitted to the Reports Committee on 13 June 1995, and in the light of Opinion No 66/95 and the opinion of the applicant's immediate superiors, he had decided to change the assessments contained in the staff reports for 1991-1992. Thus the mark ‘good’ was replaced by the mark ‘very good’ in respect of his organizational skills and the reliability of his work. In a second letter of the same date the Secretary-General also informed the applicant that he had decided to change the assessments contained in the staff report for 1993-1994. In that report the mark ‘good’ was replaced by the mark ‘very good’ in respect of his organizational skills.

By decision of 27 February 1996 the President of the Parliament rejected the complaint of 4 October 1995.

Admissibility

Since Articles 90 and 91 of the Staff Regulations make no distinction, as regards either the administrative or the contentious procedure, between an action for annulment and an action for damages, the person concerned is at liberty, in view of the independence of the different remedies, to choose either one or the other, or both together, on condition that he brings his action within the period of three months after the rejection of his complaint (paragraph 25).

See: 9/75 Meyer-Burckhardtv Commission [1975] ECR 1171, paras 10 and 11; T-27/90 Latham v Commission [1991] ECR II-35, para. 36

An exception has been made to the principle of the independence of remedies where the action for damages is closely linked to an action for annulment. Although a party may take action by means of a claim for damages without being obliged to seek the annulment of the unlawful measure which caused him damage, he may not by this means circumvent the inadmissibility of an application which concerns the same illegality and has the same financial ends in view (paragraph 26).

See: 59/65 Sclireckenbergv Commission [1966] ECR 543, 550; 4/67 Collignon v Commission [1967] ECR 365, 373; Latham v Commission, cited above, para. 37

There is no independence of remedies when an action for damages relates exclusively to reparation for material loss, such as the loss of additional income which an official would have received if he had been appointed to the posts for which he applied, which would not have occurred if an action for annulment, brought at the proper time, had been successful (paragraph 27).

See: Latham v Commission, cited above, para. 38; T-20/92 Moat v Commission [1993] ECR II-799, para. 46

In this case, the applicant does not claim, in support of his claim for damages, the existence of material loss consisting in the fact that he was not appointed to the posts for which he had applied, but the existence of nonmaterial loss consisting in the fact that his chances of being appointed to a higher post were adversely affected by the delay in drawing up his staff reports for 1991-1992 and 1993-1994 and the fact that, by reason of the absence of those reports, he was in a position of uncertainty and concern as to his professional future.

The relief sought from the Court by an official in a staff case must not differ from that sought in his prior administrative complaint and the specific heads of claim must be based on the same matters as those relied on in the complaint (paragraph 31).

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 9 and 10

In his request under Artide 90(1) of the Staff Regulations, the applicant sought reparation for the loss allegedly suffered by him by reason of the delay in drawing up his staff reports and, in his complaint, he expressly stated that it concerned the administration's failure to reply to his request for reparation of that loss.

The object of the pre-litigation procedure, which begins with submission of the complaint, is to permit an amicable settlement of the dispute. In order that such a procedure may fulfil its purpose, it is necessary for the appointing authority to be in a position to know in sufficient detail the criticisms made by the official concerned. In this case, the pre-litigation procedure enabled the appointing authority to know in sufficient detail the criticisms made by the applicant. Furthermore, since the appointing authority rejected the request for exemplary damages of one ecu, it a fortiori rejected a request for a higher amount, so that an amicable settlement of the differences would not have been possible at that stage. Therefore, although the amount claimed before the Community judicature is higher than that claimed during the pre-litigation procedure, the claim for reparation of nonmaterial loss must be held to be admissible (paragraph 33).

See: T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8

Substance

Existence of maladministration

In the interests of good administration and of the rationalization of the services of the Community and in order to safeguard the interests of officials, it is mandatory for a staff report to be drawn up. One of the bounden duties of the administration is therefore to ensure that the reports are drawn up periodically on the dates laid down by the Staff Regulations and that they are drawn up in proper form. The administration has for this puipose a reasonable period at its disposal in which to do this and any failure to act within that period must be justified by the existence of special circumstances (paragraph 44).

See: Joined Cases 156/79and 51/80 Gratreauv Commission [1980] ECR 3943, para. 15; 207/81 Ditterich v Commission [1983] ECR 1359. para. 25; T-29/89 Moritz v Commission [1990] ECR II-787, para. 21

However, all officials have a general duty of loyalty and cooperation which they owe to the authority to which they belong, particularly in the procedure for drawing up staff reports. Therefore an official cannot complain of delay in the drawing up of his staff report if that delay is attributable to him, at least in part, or if he contributed considerably to the delay (paragraph 45).

See: 3/66 Alfieri v Parliament [1966] ECR 437, 448; Moritz v Commission, cited above, para. 22

The general provisions for implementing Article 43 of the Staff Regulations and Article 15 of the Conditions of Employment of Other Servants (Staff Reports), which were in force at the time when the staff report for 1991-1992 should have been drawn up, did not set any time-limit within which staff reports were to be drawn up. In those circumstances, and having regard to the rules applied by other institutions at the time, a period of not more than five months, from the end of the period to which the report relates, for drawing up a provisional staff report must be considered reasonable. The provisional staff report for 1991-1992 was signed by die first reporting officer on 17 May 1995 and drawn up approximately two years late (paragraph 47).

The staff report for 1993-1994 was signed by the first reporting officer on the same date as the first report, that is to say almost four months after the one-month time-limit specified by Article 4 of the new general provisions, rules which the Parliament imposed upon itself (paragraph 48).

In the absence of any conduct by the official which contributed to the delays at issue and of special circumstances justifying such delays, the appointing authority committed a fault giving rise to liability on its part (paragraph 50).

See: T-13/92 Moat v Commission [1993] ECR II-287, paras 32 and 34

Existence of loss and a causal link between that loss and the maladministration

Delays in the drawing up of staff reports may in themselves be prejudicial to officials for the simple reason that their career progress may be affected by the absence of such reports at a time when decisions concerning them must be taken (paragraph 68).

In this case, between the time when the provisional staff report for 1991-1992 should have been drawn up and the date on which it actually was drawn up, the applicant submitted his candidature for a post of Head of Division. When the applicant's candidature was examined, neither the consultative committee nor the appointing authority were therefore aware of the content of the staff report for 1991-1992. It follows that the examination of the applicant's candidature was affected by the absence of that staff report (paragraph 69).

An official in possession of an irregular and incomplete personal file thereby suffers nonmaterial damage as a result of being put in an uncertain and anxious state of mind with regard to his professional future (paragraph 72).

See: Latham v Commission, cited above, para. 49

The fact that his staff report for 1991-1992 was not established for approximately two years gave rise in the applicant's case to an uncertain and anxious state of mind with regard to his professional future. It also caused him nonmaterial loss (paragraph 74).

As regards the staff report for 1993-1994, although the applicant did not submit any candidature during the period to which the report related and the delay of almost four months was not so excessive as to give rise in the applicant's case to an uncertain or anxious state of mind, that delay was in addition to the delay which had occurred in drawing up the 1991-1992 report and thus aggravated the uncertain and anxious state in which the applicant found himself as a result of the delay in drawing up the first report (paragraph 75).

See: T-386/94 Allo v Commission [1996] ECRSC II-1161, para. 78

Furthermore, when the delay is such that the same reporting officers are forced to draw up staff reports relating to successive periods at the same time, the value of those reports is seriously jeopardized by the difficulty involved in assessing each reference period separately. In such a situation, the official suffers additional loss, as a result of the absence of successive assessments of the evolution of his performance of his duties in the course of his career in the service of the Communities (paragraph 76).

In assessing the loss, account should be taken of the fact that there was considerable delay in drawing up the staff report for 1991-1992, that that delay was followed by a delay in drawing up the staff report for 1993-1994 and that the two reports were only drawn up after the applicant submitted a request to that effect. Account should also be taken of the substantial difference between the assessments contained in the staff report for 1989-1990, on the one hand, and those finally contained in the 1991-1992 and 1993-1994 reports, on the other, together with the importance of the post for which the applicant had submitted his candidature (paragraph 78).

Operative part:

The Parliament is ordered to pay the applicant the sum of BFR 200000 by way of damages.