ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

25 October 2012

Case F‑8/12

BY

v

European Aviation Safety Agency (EASA)

(EASA staff — Temporary staff — Prior administrative procedure — Correspondence between complaint and action — Action in part manifestly inadmissible)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which BY seeks compensation for damage allegedly suffered as a result of the decision of the Executive Director of the European Aviation Safety Agency (‘EASA’ or ‘the Agency’) of 10 June 2011 to dismiss him with effect from 15 December 2011, and of the psychological harassment of which he was the victim in the context of his employment relationship within the Agency.

Held: BY’s action is dismissed as manifestly inadmissible except for the claim that EASA be ordered to pay compensation for the damage suffered due to the dismissal and only in so far as he raises in that regard the claim of failure to comply with the duty to have regard for the interests of officials. The costs are reserved.

Summary

1. Actions brought by officials — Actions for damages — Existence of a decision adversely affecting an official — Possibility of bringing an action for damages without seeking annulment of the measure — Conditions for admissibility

(Staff Regulations, Art. 90(2))

2. Actions brought by officials — Actions for damages — Action invoking the duty of the administration to make good damage caused to an official by a third party — Admissibility — Condition — Exhaustion of national remedies — Exception — Absence of effective remedies

(Staff Regulations, Art. 24, second para.)

1. Where a decision has been taken which adversely affects an official, within the meaning of Article 90(2) of the Staff Regulations, the prelitigation procedure must commence with a complaint directed against that decision, although there is nothing at that stage to prevent the official concerned from deciding to seek solely to obtain compensation for the damage which the contested measure has caused him, without seeking repeal of that measure.

However, in order to be admissible it is also necessary that the action changes neither the cause of action nor the relief sought by the complaint. In that regard, so far as, first, the relief sought by the claims for damages made in the complaint and in the action, respectively, are concerned, the quantitative difference in the assessment of the damages is not such as to call into question the fact that the relief sought is the same, where, in both cases, it is the compensation for the damage suffered as a result of the contested decision which is sought. Moreover, a claim for damages may be submitted either in the complaint or for the first time in the originating application, when a decision which adversely affects an official is challenged. A fortiori, an injured official or staff member may alter the amount of compensation sought in his complaint at the stage of the proceedings before the Court.

Secondly, with regard to the cause of action of the claim and of the appeal, respectively, the cause of action of the dispute will normally be altered, and the correspondence rule therefore not observed, where the person concerned, criticising in his complaint solely the formal validity of the act adversely affecting him, including in its procedural aspects, raises substantive pleas in the originating application, or in the opposite case where the person concerned, after having disputed in his complaint only the substantive legality of the act adversely affecting him, submits an application containing pleas relating to the formal validity of that act, including in its procedural aspects.

(see paras 41, 43, 45-46)

See:

13 May 2005, T‑284/02 Dionyssopoulou v Council, paras 61 to 63

21 February 2008, F‑4/07 Skoulidi v Commission, paras 60 to 67; 1 July 2010, F‑45/07 Mandt v Parliament, paras 109 and 120 and the case-law cited

2. The purpose of the second paragraph of Article 24 of the Staff Regulations is to provide compensation for damage caused to an official or member of staff by the actions of a third party or another official referred to in the first paragraph of the same article, provided that he has been unable to obtain compensation from the person who caused that damage. The admissibility of an action for damages brought by an official or member of staff pursuant to the second paragraph of Article 24 of the Staff Regulations is conditional on national remedies having been exhausted, provided that they protect the persons concerned effectively and may culminate in compensation for the alleged damage.

(see para. 50)

See:

5 October 2006, C‑365/05 P Schmidt-Brown, para. 78

9 March 2005, T‑254/02 L v Commission, para. 148

12 July 2011, T‑80/09 P Commission v Q, para. 67