JUDGMENT OF THE COURT OF FIRST INSTANCE (Fouth Chamber)

17 December 1997

Case T-208/96

Eberhard Eiseli

v

Commission of the European Communities

‛Vocational training course — Refusal to allow participation — Breach of Article 24 of the Staff Regulations and the principle of equal treatment — Claim for compensation for damage suffered’

Full text in Italian II-1179

Application for:

First, annulment of a decision of the Commission refusing the applicant's request to participate in vocational training and, second, annulment of the decision of the Commission appointing him to duties not corresponding to his qualifications, professional experience or the duties for which he was recruited.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant is a B-grade official of the Commission serving with the Institute of Technology and Safety at the Joint Research Centre at Ispra, in Italy.

In December 1993 the applicant followed a vocational training course at the request of his immediate superior, Mr S. Following that training he was provided with digital graphics-processing computer equipment to enable him to perform his tasks.

At the beginning of April 1995 the applicant was invited to attend a meeting with his immediate superior for the purpose of reviewing the tasks entrusted to him and his vocational training. The applicant failed to attend as requested.

On 12 June 1995 the applicant had an interview with Mr H. and MrS., his immediate superior. On 26 June 1995 Mr S. drafted a memorandum setting out the content of the interview. The applicant refused to sign it.

On 13 July 1995 the applicant requested authorization from his immediate superior to participate in a vocational training course to be held in Munich from 24 to 27 October 1995.

On 13 November 1995 an implied decision rejecting the applicant's request was deemed to have been taken, pursuant to Article 90(1) of the Staff Regulations of Officials of the European Communities (Staff Regulations).

On 12 February 1996 the applicant submitted a complaint to the Commission under Article 90(2) of the Staff Regulations against the implied decision rejecting his request of 13 July 1995.

On 12 June 1996 an implied decision rejecting the applicant's complaint was deemed to have been taken. However, the Commission adopted an express decision on 11 July 1996 rejecting the applicant's complaint; this decision was notified to him on 2 September 1996. On 12 December 1996 the applicant lodged the present application.

Admissibility

Under Article 90(2) of the Staff Regulations the three-month period within which a complaint must be submitted begins to run on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request as provided for in Article 90(1) of the Staff Regulations. Article 90(1) provides that, at the end of a period of four months from the date on which the request was made, the failure to reply is to be deemed to constitute an implied decision against which a complaint may be lodged (paragraph 17).

In the present case the Commission does not dispute that it failed to reply expressly to the applicant's request within the four-month period prescribed in Article 90(1) of the Staff Regulations by notifying a reasoned reply to him before the expiry of that period. The applicant was therefore required to submit any complaint before the expiry of a period of seven months as from the date on which he submitted his request, that is before 13 February 1996. Since the applicant's complaint dates from 12 February 1996 the administrative procedure prior to the institution of the present application is not irregular on that point (paragraph 18).

It is irrelevant, in that regard, that the vocational training course to which the applicant's request related had already taken place before the expiry of the period at the end of which, under Article 90(1), the Commission's failure to respond is to be deemed to constitute an implied decision rejecting that request (paragraph 19).

Finally, the express rejection of a request or a complaint is defined in Article 90(1) and (2) as an express decision notified to the person concerned. Since no such decision existed in the present case there cannot in any event have been an express rejection of the request (paragraph 20).

On the other hand, having regard to the Court's power under Article 113 of its Rules of Procedure to examine of its own motion the conditions governing the admissibility of an application, which are a matter of public policy, the claim in the present case that the Court should declare unlawful, in that the interest of the institution is not thereby served, the allocation to the applicant of tasks for which he is not trained and for which he was not initially employed must be dismissed as inadmissible (paragraph 21).

See: 6/60 Humblet v Belgium [1960] ECR 1125, at 1147; T-130/89 5. v Commission [1990] ECR II-761; T-29/93 Calvo Alonso-Cortésv Commission [1993] ECR II-1389, para. 40- T-4/93 André v Commission [1994] ECRSC II-471, para. 16

The fact that the applicant was assigned to new tasks within the services of the Joint Research Centre at Ispra cannot form the subject-matter of the present action, since the challenge mounted against it is manifestly out of time. If the applicant considered it necessary to challenge the validity of such a change in the tasks assigned to him he should have done so within the time allowed for that purpose under Article 90(1) and (2) of the Staff Regulations (paragraph 22).

Substance

First plea in law, alleging breach of the third paragraph of Article 24 of the Staff Regulations inasmuch as the Commission did not facilitate further training for one of its servants

According to the actual wording of the third paragraph of Article 24 of the Staff Regulations, the Commission has a wide discretion to determine whether a request for further training submitted by an official is compatible with the proper functioning of the service and in accordance with its own interests. In such circumstances, review by the Community judicature must be limited to ascertaining whether, having regard to the considerations which may have guided the administration in its assessment, the administration remained within reasonable limits and did not manifestly abuse its powers. In the present case it is therefore necessary to ascertain whether the Commission committed a manifest error of assessment ofthat kind by refusing to grant the applicant's request to participate in the training course in question (paragraph 33).

See: T-44/93 Saby v Commission [1995] ECRSC II-541, paras 46 to 48

The applicant's arguments, which are all based on the fact that he performed duties exclusively connected with photography before his tasks were changed in 1991 and that he has again principally performed such duties since his tasks were again changed in 1996, are not of such a kind as to demonstrate that the Commission did not remain within reasonable limits or manifestly abused its powers by refusing the applicant's request to participate in the training course in question. Since at the material time the applicant only occasionally performed duties connected with photography, the Commission's refusal cannot be regarded as manifestly incompatible with the proper functioning of the services in question or not in accordance with its own interests (paragraph 35).

Second plea in law, alleging breach of the principle of nondiscrimination, inasmuch as the Commission did not treat the applicant in the same way as officials in a situation comparable to his own

There is a breach of the principle of nondiscrimination or equal treatment where two categories of persons whose factual and legal circumstances disclose no essential difference or where situations which are different are treated in an identical manner (paragraph 42).

See: T-18/89 and T-24/89 Tagaras v Court of Justice [1991] BCR II-53, para. 68; T-207/95 Ibarra Gil v Commission [1997] ECRSC II-31, para. 68

In order to determine whether there was unjustified discrimination in the present case, it is therefore necessary to examine the two situations on which the applicant relies. The evidence put forward by the applicant cannot suffice to demonstrate that his situation and that of his colleague disclose no essential differences and are therefore comparable, since it does not relate to the circumstances surrounding the requests to participate in further training submitted by the applicant and his colleague (paragraph 43).

Furthermore, even if it were necessary to accept that the applicant's circumstances and those of his colleague disclosed no essential differences, the difference in treatment accorded to their requests to participate in further training is justified by an objective factor. The training undergone by the applicant's colleague came within die framework of the tasks principally and exclusively assigned to him, since he had been appointed as librarian for the Joint Research Centre at Ispra, whereas at the material time the training in which the applicant requested to participate did not come within the framework of the tasks which had been principally assigned to him, since it was only occasionally that he worked as a photographer. It must be held that that factor is of such a kind as to justify, on an objective basis, the alleged difference in treatment between the applicant's circumstances and those of his librarian colleague, irrespective of the duration of the training followed by the latter (paragraph 44).

Operative part:

The application is dismissed as inadmissible in so far as it seeks a declaration that the allocation to the applicant of duties for which he is not trained and for which he was not initially employed is unlawful in so far as it is not in the interests of the institution.

The remainder of the application is dismissed.