ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

25 October 1994

Case T-180/94

M

v

Commission of the European Communities

‛Officials — Reimbursement of medical expenses — Compensation for nonmaterial damage — Reimbursement of expenses incurred in pre-litigation procedure — Inadmissibility’

Full text in French II-663

Application for:

First, the annulment of:

— a decision refusing the applicant 100% reimbursement of dental expenses caused by a serious illness; and

— a decision impliedly rejecting claims for compensation.

Secondly, an order that the Commission pay the applicant symbolic damages of one ECU for the nonmaterial damage he claims to have suffered.

Decision:

Partial withdrawal; for die rest, application dismissed.

Abstract of the Order

The applicant, who is entitled to reimbursement of medical expenses at the rate of 100% by reason of an illness which is recognized as serious, submitted an estimate on 13 January 1993 for the placing of four mandibular implants and a number of removable dental protheses. On 14 January 1993 the office responsible for settling claims approved the placing of the protheses only, and did so at the usual rate of 80%.

Considering himself entitled to full reimbursement of the expenses, which he believes to have been caused by his ‘serious’ illness, the applicant lodged a complaint against that decision on 3 February 1993. On 2 July 1993 he submitted a claim for reimbursement, of which the claims office agreed to reimburse only 63.5% in its statement of 6 October 1993.

Meanwhile, on 16 July 1993, the relevant director-general notified the applicant of his decision to authorize full reimbursement of all the expenses specified in the estimate.

On 12 November 1993 the applicant lodged a complaint against the decision of the claims office of 6 October 1993 and claimed payment of the difference between the amount claimed and the amount paid, together with default interest at the rate of 8 % per annum, legal costs incurred in the pre-litigation procedure, and compensation for the nonmaterial damage he claims to have suffered.

On 4 February 1994 the director-general informed the applicant that he had ordered payment of the sum claimed, together with default interest at 8% as from 12 November 1993.

Considering that that letter did not give him complete satisfaction, the applicant brought this action.

Admissibility

1. Vie claims for annulment of the Commission 's decision not to reimburse the dental expenses at the rate of 100% and not to pay default interest

The Court considers that the decision refusing 100% reimbursement of dental expenses is embodied in the statement from the claims office of 6 October 1993, which constitutes an act adversely affecting the applicant in that his application for reimbursement of 2 July 1993 was only partially satisfied. However, since that application, which prompted the contested decision, made no mention of default interest, the decision of 6 October 1993 cannot be regarded as a decision refusing to pay such interest (paragraphs 16 and 17).

See: T-88/91 F v Commission [1993] ECR II-13, paras 27 to 29

The Court finds that the Commission accepted the applicant's complaint on 4 February 1994, and that the applicant withdrew his claims in that respect. However, the claims were already redundant at the time die action was brought and are therefore inadmissible (paragraph 18).

2. The claims for annulment of the decision of 4 February 1994

In so far as the action for annulment of the contested decision is directed against the implied refusal to compensate for nonmaterial damage, the Court finds die claim inadmissible; in reality, in the absence of any allegation of nonmaterial damage separate from the damage arising from die illegality perse of die contested act, such a claim amounts to an attempt to have die decision declared unlawful and Üius merges with the claims for its annulment which the applicant has withdrawn and which were in any event inadmissible (paragraph 22).

Moreover, in so far as such claims are based on allegations of ‘repeated faults on the part of the Commission’ and a ‘state of uncertainty and anxiety’ on the part of the applicant, those claims, being no longer linked to the alleged illegality per se of the contested decision, must in any event be dismissed as inadmissible because they were not preceded by the proper two-stage pre-litigation procedure, consisting of a request followed by a complaint, as prescribed by Articles 90 and 91 of the Staff Regulations (paragraph 23).

As for the claims for annulment of the decision on the ground that it impliedly refused reimbursement of the applicant's costs incurred in the pre-litigation procedure, the Court considers that the proper occasion for the Community judicature to rule on the allocation of costs and, if necessary, on their amount, is in proceedings concerning the actual legality of the contested act (paragraph 24).

Furthermore, the Court points out of its own motion that, contrary to the requirements of Article 44(1) of the Rules of Procedure, the applicant has not in any way defined the extent of the damage he claims to have suffered. Although in certain circumstances, particularly where it is difficult to quantify the damage alleged, it is not essential to specify the exact extent of the damage in the application and to state the amount of compensation sought, in the present case the applicant has neither established nor even claimed the existence of special circumstances justifying failure to quantify the damage he claims to have suffered in this respect (paragraph 25).

See: T-64/89 Automec v Commission [1990] ECR II-367, paras 75 to 77

The Court adds that costs incurred in pre-litigation proceedings are not eligible for reimbursement (paragraph 26).

See: 75/69 Hake v Commission [1970] ECR 901; 54/77 Herpels v Commission [1978] ECR 585

3. Tlte claims for compensation

Where a direct link exists between an action for annulment and an action for damages, the latter action is admissible as being ancillary to the action for annulment without its necessarily having to be preceded by a request made 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. In addition, where a close link exists between a claim for annulment and an action for damages, the inadmissibility of the claim for annulment entails the inadmissibility of the claim for damages (paragraph 28).

See: T-5/90 Marcato v Conunission [1991] ECR II-731, para. 49; T-53/92 Pietre de Stachelski v Commission [1993] ECR H-35, para. 17; T-20/92 Moat v Conunission [1993] ECR II-799, para. 46; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 34

Since the claims for damages in this case are not only closely linked to the claims for annulment, but go so far as to merge with their subject-matter, the Court dismisses them as inadmissible (paragraph 29).

Operative part:

1. The Court of First Instance takes formal note of the withdrawal of the claims for annulment of the Commission's decision of 6 October 1993.