ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

7 July 1998

Case T-178/97

Albano Moneada

v

Commission of the European Communities

‛Officials — Deputising for a superior — Action manifestly inadmissible and not well founded in law’

Full text in French II-989

Application for:

first, annulment of the Commission decision of 12 August 1996 directing a colleague in a lower grade than the applicant to deputise during the absences of his superior and, second, damages.

Decision:

Application dismissed.

Abstract of the Order

The applicant entered the Commission's service on 1 September 1988 as a Grade A 4 official. He was posted to Unit 3 ‘accounting and auditing’ of Directorate E ‘Euratom Safeguards Directorate’ of the Directorate-General for Energy (DG XVII) (Unit E.3), in Luxembourg.

Mr Haas, head of sector B ‘data evaluation’ of that unit, asked one of the applicant's colleagues, Mr Isebaert, to deputise for him during his absence between 18 and 29 July and 9 and 16 September 1994. The applicant requested his head of unit, Mr Bevere, to state the reasons on which these decisions were based, in the light of the first paragraph of Article 23 of the Rules of Procedure of the Commission of 17 February 1993 (Rules of Procedure of the Commission), which provides that ‘[s]ave as otherwise decided by the Commission, where any superior is prevented from exercising his functions, his place shall be taken by the longest-serving subordinate present, or (in the event of equal length of service) by the person who is the senior by age, in the highest category and grade’.

His requests for explanations met with no response.

Mr Bevere appointed Mr Reeff to deputise for him during his absence on 3 and 4 August 1995. By memorandum to Mr Bevere the applicant challenged that decision and referred to his earlier objections; he still maintained that there had been a breach of Article 23 of the Rules of Procedure of the Commission. That step met with no response.

By decision of the appointing authority of 3 June 1996 Mr Martin, a grade A 5 official, was appointed head of sector B of unit E.3.

Mr Bevere appointed Mr Martin to deputise for him during his absence on 16 and 20 August 1996. The applicant challenged that decision under Article 23 of the Rules of Procedure of the Commission, by memorandum of 20 August 1996 to the Director of Directorate E of DG XVII, Mr Gmelin. His memorandum met with no response.

On 12 November 1996 the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (Staff Regulations) against that decision. The complaint was rejected by an implied decision on 12 March 1997.

Law

Under Article 111 of the Rules of Procedure of the Court of First Instance, as amended with effect from 1 June 1997, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, without taking further steps in the proceedings, determine the matter by reasoned order. In the present case the Court considers that it has sufficient information from the documents before it and decides, pursuant to Article 111, that there is no need to take further steps in the proceedings (paragraphs 15 and 16).

Claim for annulment

Under Article 91 of the Staff Regulations only an act adversely affecting the official concerned can form the subject-matter of an appeal. The only acts which may be regarded as adversely affecting an official are those which are capable of directly affecting his position in law and thus go beyond measures which, concerning only the internal organisation of departments, do not adversely affect the position of the official concerned under the Staff Regulations (paragraphs 31 and 32).

See: T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, para. 27; T-50/92 Morani v Parliament [1993] ECR II-555, para. 29

Furthermore, only special circumstances which provided the grounds for measures of internal organisation may render an appeal against such measures admissible. That may be the case where the decision in question is in the nature of a covert penalty, where it discloses an intention to discriminate against the official concerned or where it is vitiated by a misuse of powers (paragraph 33).

See: T-69/92 Seghers v Council [1993] ECR II-651, para. 38

The applicant claims that as the longest-serving subordinate and the one in the highest grade in his unit he is entitled to deputise for his superior in the latter's absence.

The first paragraph of Article 23 of the Rules of Procedure of the Commission refers to the arrangements for a replacement where a superior is absent and therefore contains a rule concerning the organisation of departments. It provides the Commission with criteria which serve as guidelines for choosing the most appropriate subordinate to carry out the duties of the absent superior where no replacement has been organised. The provision is therefore also in the nature of a fall-back. It is designed to protect the interests of the proper internal administration of the Commission's departments, in particular those connected with the continuity of the duties of an absent superior, and not the interests of an official who meets the conditions which it lays down. It does not create a right or even a legally protected interest in favour of an official who meets the conditions to deputise for his superior.

The applicant cannot therefore derive from that provision a right or a legally protected interest capable of being affected by the impugned decision. Consequently, the decision cannot be described as an act susceptible of directly affecting the applicant's position in law which the Court can be requested to annul.

Any interest which the applicant may have in the application of the abovementioned provision can lie only in the proper application of the law. However, an official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for annulment, only such claims as relate to him personally (paragraph 39).

See: T-163/89 Sebastiani v Parliament [1991] ECR II-715, para. 24

The claim for annulment is therefore inadmissible, since it is directed against an act which does not adversely affect the applicant.

In any event, the criteria laid down in the first paragraph of Article 23 of the Rules of Procedure of the Commission operate only where no arrangements have been made for a replacement and therefore constitute a fallback. Since in the present case the Commission arranged for a replacement for the absent superior those criteria are not applicable.

The claims for annulment are therefore also unfounded in law.

Claim for damages

Actions for annulment and damages are two autonomous actions and the fact that an application for annulment is inadmissible does not in itself render a claim for damages inadmissible. An exception to that rule arises where the action for damages ‘is actually aimed at securing withdrawal of an individual decision and, if upheld, would have the effect of cancelling the legal effects ofthat decision’. Since that is not so in the present case, the fact that the action for annulment is inadmissible does not render the action for damages inadmissible (paragraph 47).

See: T-514/93 Cobrecafand Others v Commission [1995] ECR II-621, para. 58; T-93/95 Laga v Commission [1998] ECR II-195, para. 48

Where the Court rejects a claim for annulment as inadmissible on the ground that there has been no act adversely affecting the person concerned, however, a claim for damages must also be rejected in so far as the applicant claims that the harm in respect of which damages are claimed was caused by an act adversely affecting him.

The claim for compensation must therefore be rejected.

Consequently, the action must be rejected in its entirety.

Operative part:

The application is dismissed.