JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

6 November 1997

Case T-15/96

Lino Liao

v

Council of the European Union

‛Officials — Application for annulment — Late staff report — Action for damages — Admissibility — Damage’

Full text in French II-897

Application for:

annulment of definitive staff report, dated 6 November 1995, for the period from 1 July 1991 to 30 June 1993, notified to the applicant on 9 November 1995, and for damages.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant has been an official in Grade B 5 of the Council of the European Union since 1 November 1990.

This application arises from the staff report of the applicant for the period from 1 July 1991 to 30 June 1993. The applicant received three versions of that staff report.

The first version bore the signature of the first reporting officer dated 7 November 1994 and that of the second reporting officer dated 28 November 1994. The applicant signed it on 8 December 1994 and added the following comment: ‘I do not agree with the assessment of the first reporting officer and would like an interview with the second reporting officer to review the report. ’

By letter of 25 April 1995 the Council informed the applicant that a request for revision by the Reports Committee had to be made to the second reporting officer before he signed the report. By letter of 12 May 1995 the applicant pointed out to the Council that the staff report was already signed by the first and second reporting officers when he received it. It was therefore impossible for him to request a revision before the second reporting officer signed it.

Following a discussion on 17 May 1995 between the second reporting officer and the applicant, a second version of the staff report — covering the same period as the first — was drawn up and signed by the second reporting officer, and by the first reporting officer as the ‘person consulted’, on 19-May 1995. That second version confirmed the assessment made and the marks given in the first. The applicant signed it on 31 May 1995, adding the following comment: ‘I do not agree with the assessment of the first and second reporting officers.’

By letter of 18 August 1995, registered by the Council's postal service on 22 August 1995, the applicant made a request for intervention by the Reports Committee in connection with the second version of the staff report, of 19 May 1995.

By application lodged at the Registry of the Court of First Instance that day, the applicant brought an action (T-161/95) against the Council, seeking ‘the annulment of the staff report for the period from 1 July 1991 to 30 June 1993’ and the payment of the sum of BFR 250000 by way of compensation for material damage and the sum of BFR 75000 for nonmaterial damage.

On 30 October 1995, after hearing the applicant and other persons he wished to be called, the Reports Committee delivered an opinion on the request of 18 August 1995. In that opinion the committee acknowledged that there had been a ‘considerable delay’ in drawing up the first version of the staff report of 7 November 1994, and noted that ‘the procedure appears to have been followed in a very unsatisfactory manner between the beginning of November 1994 and the end of May 1995’. However, the committee did not make any criticism of the analytical assessments made in that report.

Following the opinion of the Reports Committee, a definitive staff report for the period from 1 July 1991 to 30 June 1993 was drawn up on 6 November 1995 and notified to the applicant on 9 November 1995. That report confirmed the substance of the previous report of 19 May 1995.

Substance

The applicant relies on two pleas in law in support of his application. The first alleges that the contested staff report was drawn up late, in breach of Article 43 of the Staff Regulations applicable to officials of the European Communities (‘Staff Regulations’), of the decision of the Council of 19 October 1981 laying down the general provisions for the application of Article 43 of the Staff Regulations on periodical reports (‘the General Provisions’), and of the General Instructions on the preparation of Staff Reports [Staff Note No 99/89 of 28 July 1989 (‘the General Instructions’)]. The second plea alleges procedural irregularities in that it appears from the versions of the report of 7 November 1994 and 19 May 1995 that the first and second reporting officers signed them before the applicant was able to submit any comments or request an interview with the second reporting officer (paragraph 19).

The claims for annulment

The applicant relies on two pleas in support of his application.

The first plea, alleging delay in drawing up the staff report

Contrary to the applicant's allegation, Staff Note No 68/93, establishing the time-limits for the drawing up of staff reports at 1 November 1993, for first reporting officers, and at 1 January 1994, for second reporting officers, is not vitiated by any illegality. Although Article 43 of the Staff Regulations and Articles 1 and 11 of the General Provisions, read together, require that a staff report be drawn up every two years and that the report ‘shall be drawn up as at 1 July’, the administration has a reasonable period to draw up the staff report after the date laid down by the General Provisions. The time allowed is reasonable in this case, given inter alia the requirements of the reports procedure set out in the General Provisions and the General Instructions (paragraph 32).

See: T-79/92 Ditterich v Commission [1994] ECRSC II-907, para. 72

The delay in drawing up the staff report after 19 May 1995 cannot be taken into consideration. As the applicant had referred the matter to the Reports Committee, any further delay was not attributable to the administration (paragraph 33).

See: 140/87 Bevan v Commission [1989] ECR 701

However, in the absence of exceptional circumstances, a staff report cannot be annulled on the sole ground that it was drawn up late in breach of Article 43 of the Staff Regulations. If a staff report could be annulled solely on the ground that it was out of time it would become impossible to draw up a valid report after the expiry of a certain period and, secondly, the report intended to replace the annulled report could not, in any event, be any less belated than the original report (paragraph 34).

See: T-18/93 Marcato v Commission [1994] ECRSC 1II-681, para. 36; T-54/92 Schneider v Commission [1994] ECRSC II-887, paras 26 and 27; T-150/94 Vela Palacios v ESC [1996] ECRSC II-877. para. 52

Although delay in drawing up a staff report is capable, in certain cases, of giving the official concerned a right to a remedy, such delay cannot in any circumstances affect the validity of the staff report or, in consequence, justify the annulment thereof (paragraph 35).

See: 178/86 Turnery Commission [1987] ECR 5367, paras 8 and 9; 1/87 Picciolo v Commission [1988] ECR 711, para. 32; Bevan v Commission, cited above; T-63/89 Latham v Commission [1991] ECR II-19, para. 15

The second plea, alleging procedural irregularity

In this case, the irregularity which occurred when the first version of the staff report was drawn up, in November 1994, was subsequently rectified. Accordingly, that irregularity cannot be regarded as capable of calling into question the validity of the definitive version of the report of 6 November 1995, which is the subject of these proceedings. The same is true of the fact that the first reporting officer signed the version of 19 May 1995 as a ‘person consulted’ (paragraph 45).

See: Picciolo v Commission, cited above, para. 25

The claims for compensation

Admissibility of the application

Articles 90 and 91 of the Staff Regulations make the admissibility of an action brought by an official against the institution to which he belongs conditional on the proper observance of the preliminary administrative procedure laid down in those provisions. Those rules are mandatory and the parties may not waive them. Under Article 113 of its Rules of Procedure, the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with an action (paragraph 54).

See: T-34/91 Whitehead v Commission [1992] ECR II-1723, paras 18 and 19

Under Article 91(2) of the Staff Regulations, an action may only be brought before the Court of First Instance if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) of the Staff Regulations within the period prescribed therein, and if the complaint has been rejected by express decision or by implied decision. Article 90(2) of the Staff Regulations provides that a complaint may be submitted to the appointing authority against an act adversely affecting an official, either where the appointing authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. An act adversely affecting an official can consist inter alia in the implicit or explicit rejection of a prior request submitted by the official to the appointing authority pursuant to Article 90(1) of the Staff Regulations (paragraph 55).

However, where the act adversely affecting an official is a staff report, the official has the option, by way of derogation from the procedure laid down in Articles 90 and 91 of the Staff Regulations, of bringing an action for annulment of the report in question directly before the Court of First Instance. That derogation is justified by the fact that the staff report expresses the opinion freely drawn up of the reporting officers and not the assessment made by the appointing authority. The making of a formal complaint, under Article 90(2) of the Staff Regulations, is not a necessary precondition for bringing an action against a staff report for reasons similar to those adopted by the Court of Justice regarding the decisions of selection boards in competitions, which, by their nature, are not capable of being annulled or amended by the appointing authority (paragraph 56).

See: 6/79 and 97/79 Grassi v Council [1980] ECR 2141; T-l/91 Della Pietra v Commission [1992] ECR II-2145, para. 23; T-192/94 Maurissen v Court of Auditors [1996] ECR-SCII-1229, para. 22

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-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 and continue, where appropriate, with a complaint against the decision rejecting that request (paragraph 57).

See: T-500/93 Y v Court of Justice [1996] ECRSC II-977, para. 64

Only where there is a direct link between an action for annulment and an action for damages is the action for damages admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the request. On the other hand, where the alleged damage does not arise out of the act whose annulment is sought but from a series of alleged wrongful acts and omissions on the part of the administration, it is mandatory that the pre-litigation procedure should commence with a request for the appointing authority to make good that damage (paragraph 58).

See: Y v Court of Justice, cited above, para. 66

The purpose of the pre-litigation procedure is, first, to ensure that the appointing authority is able to know in sufficient detail the complaints of the person concerned before a legal action is brought and, second, to permit the amicable settlement of disputes arising between officials or other staff of the Communities and the institutions (paragraph 64).

See: T-58/92 Moat v Commission [1993] ECR II-1443, para. 39; T-361/94 Weir v Commission [1996] ECRSC II-381, paras 27 and 28

In this case, the action for damages is based solely on the fact that the staff report was drawn up late, and no plea is directed at its substance. In such circumstances, there was nothing to prevent the appointing authority from assessing the merits of the request for damages itself and, if appropriate, settling the matter amicably before an action was brought. It would therefore not be in keeping with the purpose of Articles 90 and 91 of the Staff Regulations to allow the applicant to bring such an action for damages without any pre-litigation procedure. Under the system of remedies set up by the Staff Regulations, the assessment of such a request falls primarily to the appointing authority as part of the pre-litigation procedure it established by those regulations (paragraphs 65 and 66).

The connection between the application for annulment and the action for damages relied on by the applicant is not sufficient to establish the admissibility of the action for damages in the absence of any pre-litigation procedure whatsoever (paragraph 67).

It follows from the foregoing that the claims for damages must be dismissed as inadmissible.

It should be added, for the sake of completeness, that the applicant has not shown that he has suffered material damage by reason of the fact that the contested staff report was drawn up late. Similarly, he has not shown that he has ‘lost a chance’ of promotion. He was on the lists for promotion for the promotion years in question and the mere absence of a staff report is not sufficient in itself to prove that the appointing authority exceeded its power of assessment when considering the comparative merits of the officials concerned (paragraphs 71 and 72).

As regards nonmaterial damage, the mere fact that the applicant satisfied all the conditions for promotion camiot give rise to any legitimate expectations on his part (paragraph 73).

See: T-262/94 Baiwir B Commission [1996] ECRSC II-739, para. 67

As regards the nonmaterial damage arising from the state of uncertainty and anxiety in which the applicant was placed because his personal file was not in order or complete, that damage was only pleaded at the stage of the reply and the applicant did not adduce any specific evidence on that point, at least for the period up to November 1994 (paragraph 74).

Under the circumstances, and having regard to the fact that the applicant is still at a relatively early stage in his career, the finding in this judgment that his case was badly managed by the defendant, which had already been noted by the Reports Committee, is sufficient to provide appropriate reparation for the nonmaterial damage alleged by the applicant (paragraph 75).

Operative part:

The application is dismissed.