JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

11 May 2010

Case F-30/08

Fotios Nanopoulos

v

European Commission

(Civil service — Officials — Jurisdiction of the Civil Service Tribunal — Admissibility — Act adversely affecting an official — Non-contractual liability — Leaks in the press — Principle of the presumption of innocence — Non-material damage — Decision instituting disciplinary proceedings — Manifest error of assessment — Duty to provide assistance — Article 24 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Nanopoulos seeks an order that the Commission pay him, on account of faults which it committed in the management of his situation and his career, the sum of EUR 850 000 to compensate for the non-material damage which he considers himself to have suffered.

Held: The Commission is ordered to pay the applicant the sum of EUR 90 000. The remainder of the action is dismissed. The Commission is to bear all the costs.

Summary

1. Officials — Actions — Action for damages — Pre-litigation procedure

(Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Act adversely affecting an official — Definition — Decision concerning the administration’s obligation to provide assistance — Included — Delay in adoption of the decision — Not included

(Staff Regulations, Arts 24, 90 and 91)

3. Officials — Actions — Action for damages — Claim for compensation for damage resulting from a decision instituting disciplinary proceedings — Pre-litigation procedure

(Staff Regulations, Arts 90 and 91)

4. Officials — Actions — Time-limits — Claim for compensation addressed to an institution — Duty to act within a reasonable time — Criteria for assessment

(Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90)

5. Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Definition

(Art. 270 TFEU)

6. Officials — Obligation of administration to provide assistance — Scope — Delay in adoption of decision — Maladministration for which the administration may incur liability

(Staff Regulations, Art. 24)

7. Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Leaking of information concerning an official’s personal data

(Arts 270 TFEU and 340, second para., TFEU; European Parliament and Council Regulation No 45/2001)

8. Officials — Disciplinary measures — Institution of disciplinary proceedings — Discretion of the appointing authority — Judicial review — Limits — Proceedings instituted without sufficiently precise and relevant information — Maladministration for which the administration may incur liability

(Staff Regulations, Art. 87; Annex IX)

9. Officials — Non-contractual liability of the institutions — Maladministration — Failure to entrust an official with duties corresponding to his grade

(Arts 270 TFEU and 340, second para., TFEU)

1. Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-contentious procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limits, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation. It is only the express or implied rejection of such a request that constitutes a decision adversely affecting the person concerned and against which he may submit a complaint, and it is only after the express or implied rejection of that complaint that an action seeking compensation may be brought before the Tribunal.

(see para. 83)

See:

T-5/90 Marcato v Commission [1991] ECR II-731, paras 49 and 50; T-500/93 Y v Court of Justice [1996] ECR-SC I-A-335 and II-977, para. 64

2. Decisions relating to the obligation to provide assistance constitute acts adversely affecting officials. However, an institution’s delay in ruling on its obligation to provide assistance and in notifying its decision does not, in principle, constitute an act adversely affecting an official. With regard to an institution’s failure to provide assistance spontaneously, it is, in principle, for the official concerned, who considers himself entitled to rely on Article 24 of the Staff Regulations, to request assistance from the relevant institution. Only exceptional circumstances may oblige the institution to provide specific assistance not in response to a request from the individual concerned but on its own initiative. In the absence of such circumstances, the failure of the institution to assist its officials and other staff spontaneously does not constitute an act adversely affecting them.

(see paras 93, 99, 101)

See:

229/84 Sommerlatte v Commission [1986] ECR 1805, para. 20

T-59/92 Caronna v Commission [1993] ECR II-1129, para. 100; T-79/92 Ditterich v Commission [1994] ECR-SC I-A-289 and II-907, para. 66; T-223/95 Ronchi v Commission [1997] ECR-SC I-A-321 and II-879, paras 25 to 31; T-285/04 Andrieu v Commission [2006] ECR-SC I-A-2-161 and II-A-2-775, para. 135; T-249/04 Combescot v Commission [2007] ECR-SC I-A-2-181 and II-A-2-1219, para. 32; T-90/07 P and T-99/07 P Belgium and Commission v Genette [2008] ECR II-3859, paras 100 to 102

F-91/05 Frankin and Others v Commission [2006] ECR-SC I-A-1-25 and II-A-1-83, para. 24

3. The applicable pre-litigation procedure for obtaining compensation for damage resulting from a decision instituting disciplinary proceedings depends on the nature of the final decision taken by the administration.

Where the disciplinary proceedings instituted are closed by a decision adversely affecting the official, he may plead the illegality of the decision instituting those proceedings only in support of a challenge brought directly, within the time-limits for complaints and appeals laid down in Articles 90 and 91 of the Staff Regulations, against the decision adversely affecting him which was adopted at the end of the proceedings.

On the other hand, where the administration takes a decision closing without further action the disciplinary proceedings, since that decision does not adversely affect him, the official, in order to obtain compensation for the damage resulting from a decision instituting disciplinary proceedings, must first observe the two-stage pre-litigation procedure laid down by the provisions of Articles 90 and 91 of the Staff Regulations.

(see paras 111-113)

4. Officials or other staff seeking to obtain compensation from the Union for damage alleged to be attributable to the Union must submit a claim to that effect within a reasonable time after the point in time when they became aware of the situation they complain of, even though Article 90(1) of the Staff Regulations of Officials does not lay down any time-limit for the submission of a claim.

There is an obligation to act within a reasonable time in all cases where, in the absence of any statutory rule, the principles of legal certainty or protection of legitimate expectation preclude institutions of the Union and natural and legal persons from acting without any time-limits, thereby threatening, inter alia, to undermine the stability of legal positions already acquired. In actions for damages liable to result in a financial burden on the Union, the obligation to submit a claim for compensation within a reasonable time derives also from a need to safeguard the public coffers which is specifically given expression, as regards actions for non-contractual liability, in the five-year limitation period laid down by Article 46 of the Statute of the Court of Justice. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties.

(see paras 116-117)

See:

T-45/01 Sanders and Others v Commission [2004] ECR II-3315, para. 59; T-144/02 Eagle and Others v Commission [2004] ECR II-3381, paras 65 and 66

F-87/07 Marcuccio v Commission [2008] ECR-SC I-A-1-351 and II-A-1-1915, para. 27, on appeal before the General Court of the European Union, Case T-16/09 P

5. An action for damages brought under Article 270 TFEU may be declared well founded only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act alleged and the damage alleged to have been suffered.

Where it is put in issue under the provisions of Article 270 TFEU, the non-contractual liability of the institutions may be incurred on the ground solely of the illegality of an act adversely affecting an official (or of non-decision-making conduct), without there being any need to consider whether it is a sufficiently serious breach of a rule of law intended to confer rights on individuals.

That does not preclude the courts from determining the extent of the administration’s discretion in the field of disputes concerning the Staff Regulations; on the contrary, that criterion is an essential parameter in the examination of the legality of the decision or conduct at issue, since the judicial review carried out and its intensity depend on the degree of latitude available to the administration on the basis of the relevant law and of the requirements of proper functioning to which that administration is subject.

It is for the courts of the Union, in examining whether the first condition for the administration to be held non-contractually liable is satisfied, to determine only whether, on the basis of the degree of latitude available to the administration in the case brought before the court, the conduct alleged against the institution constitutes wrongful maladministration.

(see paras 128-133)

See:

C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, para. 42; C-348/06 P Commission v Girardot [2008] ECR I-833, paras 52 and 53

T-339/03 Clotuche v Commission [2007] ECR-SC I-A-2-29 and II-A-2-179, paras 219 and 220; T-250/04 Combescot v Commission [2007] ECR-SC I-A-2-191 and II-A-2-1251, para. 86

6. The administration enjoys a wide discretion regarding the choice of the ways and means of implementing Article 24 of the Staff Regulations. However, when faced with serious and unfounded accusations concerning the professional integrity of an official in carrying out his duties, it must refute those accusations and do everything possible to restore the good name of the official concerned. In particular, the administration must intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case.

The requests for assistance made by an official on account of a defamatory statement or an attack on his integrity and professional reputation, made through the press, necessitate, in principle, a particularly rapid response on the part of the administration, in order to produce a practical effect and to enable the official concerned to avoid, where appropriate, the risks of being time-barred associated with the existence of short time-limits for bringing proceedings in relation to violations of the press laws before some national courts.

A delay in acting on the part of the administration, in the absence of special circumstances, constitutes wrongful maladministration such as to render it liable.

(see paras 139-141)

See:

79/71 Heinemann v Commission [1972] ECR 579, para. 12; 173/82, 157/83 and 186/84 Castille v Commission [1986] ECR 497

T-27/90 Latham v Commission [1991] ECR II-35, paras 49 and 50; T-5/92 Tallarico v Parliament [1993] ECR II-477, para. 31; Caronna v Commission, paras 64, 65 and 92 and the case-law cited therein; T-294/94 Dimitriadis v Court of Auditors [1996] ECR-SC I-A-51 and II-151, paras 39 and 45; T-183/95 Carraro v Commission [1998] ECR-SC I-A-123 and II-329, para. 33

7. The unlawful leaking of personal information constitutes processing of personal data contrary to the provisions of Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

It is for the applicant, in an action for damages, to establish that the conditions on which the defendant institution may incur non-contractual liability are satisfied. Thus, the applicant must, in principle, establish that the information concerning him published in the press resulted from leaks of information attributable to the administration. The strict application of that rule may be mitigated, however, where a harmful event may have been the result of a number of different causes and where the defendant institution has adduced no evidence enabling it to be established to which of those causes the event was imputable, although it was best placed to provide evidence in that respect, so that the uncertainty which remains must be construed against it.

Where an official’s name has been disclosed through the unlawful leaking of information which, together with the information contained in a press release by the institution, gave the press and the general public the impression that the official was involved in a financial scandal, that leaking of personal data directly caused a significant aggravation of the damage to the official’s reputation and professional integrity.

In such a case, the damage is only very partially made good by a press release by the institution stating that the disciplinary proceedings instituted against the innocent official have been concluded, since the issue of that press release will have a much lesser impact than the articles published in the press.

(see paras 160, 161, 246-247)

See:

judgment of 12 September 2007 in T-259/03 Nikolaou v Commission, not published in the ECR, paras 141 and 208; T-48/05 Franchet and Byk v Commission [2008] ECR II-1585, para. 182

F-23/05 Giraudy v Commission [2007] ECR-SC I-A-1-121 and II-A-1-657, para. 206

8. The purpose of a decision instituting disciplinary proceedings against an official is to enable the appointing authority to examine the truth and gravity of the facts alleged against the official concerned and to hear him in that regard, in accordance with Article 87 of the Staff Regulations, in order to form an opinion, on the one hand, as to whether it is appropriate either to close the disciplinary proceedings without further action or to adopt a disciplinary measure against the official and, on the other hand, where appropriate, as to whether or not it is necessary, before adopting such a measure, to send him before the disciplinary board in accordance with the procedure laid down in Annex IX to the Staff Regulations.

Such a decision necessarily entails a careful consideration on the part of the institution which must have regard to the serious and irrevocable consequences likely to arise from it. The institution has wide discretion in that respect and the judicial review is limited to ascertaining whether the facts taken into account by the administration in order to institute the proceedings are materially accurate and whether there has been any manifest error in the assessment of the facts held against the official concerned and any misuse of powers.

However, in order to safeguard the rights of the official concerned, the appointing authority must have sufficiently precise and relevant evidence before instituting disciplinary proceedings. In that respect, even though that is not its purpose, the possibility remains that an internal audit report may, in some circumstances, serve as a basis for the institution of disciplinary proceedings. It must therefore be ascertained, on a case-by-case basis, where the administration refers to such a report, whether the information contained in that type of document is sufficiently precise and relevant to justify the institution of disciplinary proceedings. The institution commits a manifest error of assessment and disregards the principle of sound administration by instituting disciplinary proceedings against an official solely in view of an internal audit report produced on partial and incomplete bases. That act constitutes a fault such as to give rise to liability on its part.

The decision to institute disciplinary proceedings even though the institution does not have sufficiently precise and relevant information available to it constitutes a fault which causes very serious damage to the official’s integrity and professional reputation where that decision may give the general public and the official’s friends, family and colleagues the impression that he has committed reprehensible acts.

In such a case the damage is only very partially made good by a press release by the institution stating that the disciplinary proceedings instituted against the innocent official have been concluded, since the issue of that press release will have a much lesser impact than the articles published in the press.

(see paras 208-210, 216, 226, 230, 245, 247)

See:

T-273/94 N v Commission [1997] ECR-SC I-A-97 and II-289, para. 125; T-203/98 Tzikis v Commission [2000] ECR-SC I-A-91 and II-393, para. 50; T-166/02 Pessoa e Costa v Commission [2003] ECR-SC I-A-89 and II-471, para. 36; T-203/03 Rasmussen v Commission [2005] ECR-SC I-A-279 and II-1287, para. 41; Franchet and Byk v Commission, para. 352

Giraudy v Commission, paras 98, 99 and 206; judgment of 13 January 2010 in F-124/05 and F-96/06 A and G v Commission, para. 366

9. By not entrusting to the applicant for several years any actual tasks corresponding to his grade, an institution is guilty of wrongful maladministration such as to incur liability.

(see paras 237, 249)