ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

25 November 2009

Case F-5/09

Ayo Soerensen Ferraresi

v

Commission of the European Communities

(Civil service – Officials – Actions for damages – Admissibility – Complaint – Acts adversely affecting an official)

Application: brought under Articles 236 EC and 152 EA, in which Ms Soerensen Ferraresi seeks an order that the Commission pay compensation for the physical harm and the non-material and financial loss she suffered, the amount of which may be assessed by an expert or ex aequo et bono.

Held: The action is dismissed as manifestly inadmissible. The applicant is ordered to bear the costs.

Summary

1. Procedure – Admissibility of actions – Lodging of a plea of inadmissibility

(Rules of Procedure of the Civil Service Tribunal, Arts 76 and 78)

2. Officials – Actions – Action for compensation for damage caused by an act not in the nature of a decision

(Staff Regulations, Arts 90 and 91)

3. Officials – Actions – Time-limits – Claim for compensation addressed to an institution – Duty to act within a reasonable time

(Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90(1))

4. Officials – Actions – Action for annulment not brought within the time-limit – Action for compensation – Reopening of time-limits laid down in Articles 90 and 91 of the Staff Regulations – None

(Staff Regulations, Arts 90 and 91)

5. Officials – Actions – Action for damages – Independent of action for annulment

(Staff Regulations, Arts 90 and 91)

1. Even where a plea of inadmissibility has been raised by the defendant in a separate document on the basis of Article 78 of the Rules of Procedure of the Civil Service Tribunal, and where observations on that plea have been submitted by the applicant, the Tribunal remains at liberty, if the inadmissibility of the action appears manifest, to adopt an order on the basis of Article 76 of those rules.

(see para. 14)

See:

F‑48/08 and F‑48/08 AJ Ortega Serrano v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 23, on appeal before the Court of First Instance, Case T‑583/08 P

2. Psychological harassment constitutes non-decision-making conduct. It is therefore for an official seeking compensation for harm resulting from that non-decision-making conduct to make a request as provided for in Article 90(1) of the Staff Regulations. It is only the express or implied rejection of that request that constitutes a decision adversely affecting the person concerned and against which he may submit a complaint, and it is only after the express or implied rejection of that complaint that an action seeking compensation may be brought before the Civil Service Tribunal.

(see paras 22, 26-27)

See:

T-5/90 Marcato v Commission [1991] ECR II‑731, paras 49 and 50; T-500/93 Y v Court of Justice [1996] ECR-SC I‑A‑335 and II‑977, paras 64 and 66

F-42/05 Rossi Ferreras v Commission [2007] ECR-SC I‑A‑1‑39 and II‑A‑1‑211, paras 58 to 61

3. Claims for compensation for harm resulting from non-decision-making conduct must be submitted within a reasonable time after the point in time when the applicant became aware of the situation he complains of, even though Article 90(1) of the Staff Regulations does not lay down any time-limit for the submission of a claim. There is an obligation to act within a reasonable time in all cases where, in the absence of any statutory rule, the principles of legal certainty or protection of legitimate expectation preclude Community institutions and natural or legal persons from acting without any time‑limits, thereby threatening, inter alia, to undermine the stability of legal positions already acquired. In actions for damages liable to result in a financial burden on the Community, the obligation to submit a claim for compensation within a reasonable time derives also from a need to safeguard the public coffers which is specifically given expression, as regards actions for non‑contractual liability, in the five-year limitation period laid down by Article 46 of the Statute of the Court.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties.

(see paras 35, 37-38)

See:

T-45/01 Sanders and Others v Commission [2004] ECR II‑3315, paras 59 and 67 in fine; T-144/02 Eagle and Others v Commission [2004] ECR II‑3381, paras 65 and 66

F-87/07 Marcuccio v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 27, on appeal before the Court of First Instance, Case T‑16/09 P

4. An official who has failed to bring, within the time‑limits laid down in Articles 90 and 91 of the Staff Regulations, an action for annulment against an act adversely affecting him cannot, by means of a claim for compensation for the damage caused by that act, repair that omission and thus procure himself further time for bringing proceedings.

(see para. 27)

5. Given that actions for damages are independent of actions for annulment, an official may bring a separate action seeking compensation for harm resulting from the unlawfulness of an act adversely affecting him, provided that he has brought an action for annulment against that act in good time. Where he chooses to do so, however, the official must bring that action for damages within a reasonable time.

(see para. 36)

See:

F-125/05 Tsarnavas v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 76 to 78