JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

17 April 2007

Joined Cases F-44/06 and F-94/06

C

and

F

v

Commission of the European Communities

(Officials – Article 78 of the Staff Regulations – Invalidity pension – Compliance with a judgment of the Court of First Instance – Action for annulment and damages)

Application: brought under Articles 236 EC and 152 EA, in which the applicant seeks: in Case F‑44/06, first, annulment of the Commission’s decision of 13 June 2005 refusing to adopt any measure to comply with the judgment of the Court of First Instance in Case T-376/02 O v Commission [2004] ECR-SC I‑A‑349 and II‑1595, brought by the same applicant as in the two present cases, and annulment of the Commission’s decision of 23 February 2006 compulsorily retiring the applicant with entitlement to an invalidity allowance to be determined in accordance with the second paragraph of Article 78 of the version of the Staff Regulations in force before 1 May 2004, with retroactive effect from 1 February 2002, and, secondly, an order for the Commission to pay the applicant the sum of EUR 15 000 for breach of the principle of observance of a reasonable time-limit; in Case F-94/06, annulment of the abovementioned decision of 23 February 2006 and an order for the Commission to pay the applicant compensation of EUR 15 000.

Held: The Commission is ordered to pay the applicant compensation of EUR 2 000 in respect of non-material damage sustained by him. The remainder of the applications is dismissed. The Commission is ordered to bear its own costs and to pay two thirds of the applicant’s costs in Cases F-44/06 C v Commission and F-94/06 F v Commission.

Summary

1. Officials – Actions – Judgment annulling a measure – Effects – Obligation to comply

(Art. 233 EC; Staff Regulations, Art. 53; Annex VIII, Art. 14)

2. Officials – Actions – Claim for compensation linked to an application for annulment

(Art. 233 EC; Staff Regulations, Arts 90 and 91)

3. Officials – Non-contractual liability of the institutions – Failure to fulfil obligation to comply with a judgment annulling a measure

(Art. 233 EC)

1. In order to comply with a judgment annulling a decision compulsorily retiring the applicant and granting him an invalidity allowance solely on the ground of an error in the legal basis chosen, but without calling into question all of the stages involved in the adoption of that decision, the appointing authority must adopt a new decision rectifying the error made in the choice of legal basis, but it is not obliged to classify the official concerned as being in active employment retroactively, nor must it adopt a decision with only future effects, since that would mean negating the very existence of the applicant’s illness and invalidity even though they were duly established in the annulled decision Therefore, the appointing authority may, without infringing the principle of res judicata or violating Article 233 EC, retroactively fix the effects of the new decision compulsorily retiring the applicant on the last day of the month in which the annulled decision was taken, and the effects of the grant of the invalidity allowance on the first day of the following calendar month, in accordance with Article 53 of the Staff Regulations and Article 14 of Annex VIII to the Staff Regulations.

Finally, since the appointing authority must replace the decision declared unlawful by the Court with a lawful decision, it is justified in applying, in respect of the choice of legal basis, the provisions of the Staff Regulations in force on the date of the annulled decision rather than the provisions of the Staff Regulations as amended on the date when the new decision is adopted.

(see paras 42, 46-49)

See:

T‑305/94, T‑306/94, T‑307/94, T‑313/04 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, para. 189 and the case-law cited therein; T‑376/02 O v Commission [2004] ECR-SC I‑A‑349 and II‑1595

2. A claim for compensation for the harm suffered by the applicant as a result of the unreasonable time taken to comply with a judgment in his favour annulling a measure, or the complete absence of any measure to comply with that judgment, has a direct link with pleas in support of the annulment of the decision by which the administration claims to have complied with that judgment and is therefore admissible, even if it has not been the subject of a prior request pursuant to Article 90(1) of the Staff Regulations and has been formulated for the first time in the complaint against that decision. Even if the outcome of the claim for compensation is not necessarily contingent on the outcome of the claim for annulment, in such a context, in which the official considers that the administration has not yet taken the measures required by the Community judicature, the claim for compensation cannot be assessed separately from the question whether the administration has or has not complied with the final judgment through the measures it has already taken, since if those measures do not meet the requirements of the judgment in the official’s favour, that can only strengthen the claim for compensation for failure to observe a reasonable time-limit. The applicant cannot therefore be regarded as having based his claim for compensation solely on the delay in taking measures to comply with the judgment, without any criticism of the content of those measures.

In addition, where there is a judgment annulling a measure, the administration is obliged to act and must itself take measures to comply with the final judgment, without the official being subject to any such requirements. In that respect, the administration’s failure to take action may be regarded as a failure to take a measure prescribed by Article 233 EC, analogous with a measure prescribed by the Staff Regulations within the meaning of Article 90(2) of those Regulations, and as constituting an act adversely affecting the official, against which he is entitled to bring a complaint within a period of three months. Where compensation is claimed for the unreasonable time taken, or the absence of any measure to comply with a judgment, the proper conduct of the pre-litigation procedure cannot therefore be subject to the submission of a request by the official on the basis of Article 90(1) of the Staff Regulations.

Furthermore, where an official claims the application of a judgment in his favour annulling a measure, requiring him firstly to lodge a complaint against the administration’s decision, which he alleges constitutes an erroneous application of the judgment, and secondly, to bring a separate claim for compensation on the basis of Article 90(1) of the Staff Regulations, a requirement which, should the administration refuse, would also subsequently lead to the lodging of a complaint, would be contrary to the requirements of procedural economy imposed by the principle of observance of a reasonable time-limit.

(see paras 55-58)

See:

T-6/91 Pfloeschner v Commission [1992] ECR-SC II‑141, para. 22; T-65/91 White v Commission [1994] ECR-SC I‑A‑9 and II‑23, paras 91 and 92; T-18/93 Marcato v Commission [1994] ECR-SC I‑A‑215 and II‑681, para. 59; T-15/96 Liao v Council [1997] ECR-SC I‑A‑329 and II‑897, para. 61; F-91/05 Frankin and Others v Commission [2006] ECR-SC I‑A‑1‑25 and II‑A‑1‑83, para. 22

3. The administration commits an administrative fault giving rise to liability on its part where, without having encountered particular problems of interpretation or practical difficulties likely to prevent compliance with a judgment annulling a measure, it does not take, within a reasonable period, measures to ensure compliance with that judgment. The fact that the official concerned seeks the adoption of measures other than those required by the judgment cannot justify the administration’s refusal to adopt any practical measure to comply with it.

Such a refusal, which adversely affects the confidence that litigants must have in the Community judicial system, which is based, in particular, on respect for the decisions made by the Community Courts, itself entails non-material damage for the party who has obtained a judgment in his favour, irrespective of any material damage which might result from that refusal.

(see paras 63-64, 66-67, 69)

See:

T-11/00 Hautem v EIB [2000] ECR II‑4019, para. 51