Order of the Court of First Instance (Third Chamber) of 9 July 1991. - Daniel Minic v Court of Auditors of the European Communities. - Manifest inadmissibility. - Case T-48/91.



European Court reports 1991 Page II-00479



Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Officials - Action - Prior complaint through official channels - Complaint lodged after the action - Manifest inadmissibility

(Staff Regulations, Arts 90 and 91; Rules of Procedure of the Court of First Instance, Art. 111)

Parties

In Case T-48/91,

Daniel Minic, an official of the Court of Auditors of the European Communities, residing at Petit Failly (France), represented by Aloyse May, of the Luxembourg Bar, with an address of service at the latter' s Chambers, 31 Grand Rue,

applicant,

v

Court of Auditors of the European Communities, represented by Jean-Marie Stenier, acting as Agent, with an address for service in Luxembourg at the seat of the Court of Auditors, 12 Rue Alcide de Gasperi, Kirchberg,

defendant,

APPLICATION for annulment of the decision adopted by the appointing authority on 17 May 1991 by which the applicant was relieved of his duties as planner/coordinator in the Language Service with effect from 3 June 1991 and reassigned to the German Translation Section in the Court of Auditors,

THE COURT OF FIRST INSTANCE (Third Chamber),

composed of: C. Yeraris, President of the Chamber, A. Saggio and K. Lenaerts, Judges,

Registrar: M.H. Jung,

makes the following

Order

Grounds

1 By application lodged at the Registry of the Court of First Instance on 18 June 1991, Daniel Minic, an official of the Court of Auditors of the European Communities, brought an action on the basis of Article 91 of the Staff Regulations of the European Communities seeking the annulment of the decision adopted by the appointing authority on 17 May 1991 by which the applicant was relieved of his duties as a planner/coordinator in the Language Service with effect from 3 June 1991 and reassigned to the German Translation Section of the Court of Auditors.

2 By decision of the appointing authority of 15 November 1982, the applicant was established in his post as translator in Grade LA 7 in the German Translation Section.

3 On 8 October 1983 the applicant was made responsible on a full-time basis for terminology in the Language Service and for liaison between the Language Service and ADAR (Audit Development and Reports).

4 By decision of 20 November 1986 he was promoted to Grade LA 6 without a change of post.

5 On 6 May 1987 the President of the Court of Auditors informed the Members of the Court of Auditors that he had decided to establish in the Language Service a coordination centre which he entrusted to the applicant.

6 On 1 February 1990 a note from the applicant' s Head of Division confirmed that the applicant would henceforth carry out the duties of "Assistant to the Head of the Language Service in relation to the coordination and planning of translation work".

7 On 17 May 1991 the General Secretary of the Court of Auditors, in his capacity as appointing authority, informed the applicant that as from 3 June 1991 he would be relieved of his duties as planner/ coordinator in the Language Service and reassigned with effect from the same date to the German Translation Section.

8 By letter of the same date from the appointing authority, the post of planner/coordinator was abolished and the tasks which the applicant had performed until then were entrusted to his superior.

9 In a note dated 22 May 1991 and addressed to the General Secretary of the Court of Auditors, the applicant stated "I cannot accept the manner in which I have been treated and request a full explanation to clarify this case in which I have been made a scapegoat. I shall then present my version of the facts bearing in mind at all times that I acted under the authority and responsibility of my superior with the professional conscientiousness required for a post which is undoubtedly one of the most stressful in the Court since its occupant is constantly caught between the hammer and the anvil."

10 On 20 June 1991 the applicant submitted to the appointing authority a complaint under Article 90(2) of the Staff Regulations, couched in the same terms as his application.

11 Where an action brought before the Court of First Instance is manifestly inadmissible, the Court may, under Article 111 of its Rules of Procedure, by reasoned order and without taking further steps in the proceedings, give a decision on the action. In the present case, the Court considers that it has sufficient information from the pleadings and that it is not necessary to take further steps in the proceedings.

12 Under Article 91(2) of the Staff Regulations an action by an official lies only if the appointing authority has previously had a complaint submitted to it under Article 90(2) of the Staff Regulations. The complaint must itself have been lodged against the act which the official regards as adversely affecting him within a period of three months. It is common ground that the applicant lodged a complaint against the act which he regards as adversely affecting him on 20 June 1991, that is two days after bringing the present action.

13 It must therefore be stated that no complaint was previously submitted to the appointing authority under Article 90(2) of the Staff Regulations.

14 The fact that the main application was accompanied by an application to suspend the operation of the contested measure does not dispense the applicant from submitting a prior complaint under Article 90(2) of the Staff Regulations but merely allows him, under Article 91(4) of the Staff Regulations, to bring an action before the Court of First Instance immediately after lodging his complaint without having to wait for an express or implied reply thereto from the appointing authority.

15 Since the applicant lodged his complaint only after bringing his action, the action clearly does not satisfy the conditions laid down in Article 91 of the Staff Regulations.

16 It must therefore be held that the applicant' s action is manifestly inadmissible.

Decision on costs

Costs

17 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs.

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1. Dismisses the action as inadmissible;

2. Orders the parties to bear their own costs.

Luxembourg, 9 July 1991.