ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

29 April 2008

Case F-133/07

André Hecq

v

Commission of the European Communities

(Civil service – Officials – Social security – Insurance against the risk of accident and of occupational disease – Duration of the medical procedure – Action for damages – Absence of complaint – Manifest inadmissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Hecq seeks, in particular, annulment of the Commission’s decision of 12 July 2007 ruling on his complaint, to the extent that it dismissed his application for, first, default interest on benefits which might be awarded to him under Article 73 of the Staff Regulations, and, second, payment of compensation of EUR 2 000 for the non-material damage which he claims to have suffered as a result of the administration’s unacceptable slowness in dealing with his case.

Held: The action is dismissed as manifestly inadmissible. The applicant is ordered to pay the costs.

Summary

1. Officials – Actions – Action for damages brought without a prelitigation procedure in accordance with the Staff Regulations – Inadmissibility

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Unlimited jurisdiction

(Staff Regulations, Arts 73, 90 and 91)

1. A claim for annulment brought against a decision rejecting a complaint with the sole purpose of obtaining the damages which that decision refused the applicant is indissociable from the claim for damages, so that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, it is admissible only if the action has been preceded by a pre-litigation 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-limit, 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 that request which constitutes a decision having an adverse effect against which a complaint may be directed, and it is only after a decision expressly or implicitly rejecting that complaint that an action for damages may be brought before the Community judicature.

While it is accepted that an action for damages may properly be brought at the time of the complaint and, consequently, need not necessarily be preceded by a request under Article 90(1) of the Staff Regulations, it is on condition that the action for damages is based on the unlawfulness of the act against which the complaint is lodged. In such a case, there is a direct link between the action for annulment and the action for damages, so that the action for damages, as ancillary to the action for annulment, is admissible without necessarily having been preceded by a request seeking compensation from the appointing authority for the damage allegedly suffered. Where, on the other hand, the action for damages is not based on a criticism of an act having adverse effects, it is independent of any action for annulment, and the action for damages cannot be brought without the rejection decision at issue first having been challenged before the administration.

(see paras 18, 23-24)

See:

T-64/91 Marcato v Commission [1992] ECR II‑243, paras 31 to 33, and the case-law cited therein; T-44/93 Saby v Commission [1995] ECR-SC I‑A‑175 and II‑541, para. 31; T-184/94 O’Casey v Commission [1998] ECR-SC I‑A‑183 and II‑565, para. 98; T-138/01 F v Court of Auditors [2003] ECR-SC I‑A‑25 and II‑137, para. 57

2. Although it is true that the Community judicature may, of its own motion, in the context of an action for annulment, award damages for the non-material harm suffered by the applicant as a result of the abnormal duration of a medical procedure under Article 73 of the Staff Regulations, even though the person concerned had not brought an action for damages on the basis of Articles 90 and 91 of the Staff Regulations and the procedural requirements provided for in those articles had not, by definition, been fulfilled, an application seeking such an order for the administration is, however, inadmissible where an action for damages brought by an official has not been the subject of a lawful prelitigation procedure in accordance with the provisions of the Staff Regulations and where the medical procedure has not yet been concluded.

Firstly, the Community judicature can use its judicial prerogatives, and particularly the unlimited jurisdiction which it has in disputes of a financial character, only if an action is brought before it in accordance with law. Secondly, the fact that the outcome of the procedure under Article 73 is not known prevents the court from being able to assess the reality and scale of the alleged non-material damage. Lastly, in any event, such compensation of its own motion can be awarded only to give practical effect to the finding that the medical procedure has been of an abnormal duration where, in an action for annulment, that irregularity could not, however, justify the annulment of the contested decision.

(see paras 26, 28-30)

See:

T-394/03 Angeletti v Commission [2006] ECR-SC I‑A‑2‑95 and II‑A‑2‑441, paras 162 to 167

F-77/07 Labate v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, paras 20 to 22