JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

1 December 1994

Case T-79/92

Kuno Ditterich

v

Commission of the European Communities

‛Officials — Staff reports — Not drawn up — Applications for an order requiring the reports to be drawn up and for compensation for the delay — Conditions of admissibility’

Full text in German II-907

Application for:

an order requiring the Commission to draw up and communicate to the applicant his staff reports for the periods 1983-1985, 1985-1987, 1987-1989 and 1989-1991 and to pay to him compensation in the sum of ECU 100000.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was a scientific official of the Commission assigned to the Joint Research Centre at Ispra from 4 October 1965 to 31 July 1992, since when he has been in retirement. Throughout his period of service he was classified in Grade A 5.

No definitive staff reports exist in relation to the applicant for the periods 1983-1985, 1985-1987, 1987-1989 and 1989-1991.

On 23 February 1988, the applicant sent a note to his hierarchical superior, pointing out to him the absence of staff reports for the periods 1983-1985 and 1985-1987.

On 11 December 1991, the hierarchical superior proposed to him that the report for the period 1981-1983 be extended to cover the period 1989-1991.

The applicant replied by note of 19 December 1991, drawing attention to the absence of staff reports for the periods 1983-1985, 1985-1987 and 1987-1989, which he described as a serious infringement of Articles 43 and 45 of the Staff Regulations.

On 7 February 1992, a draft document extending the 1981-1983 staff report to cover the period 1989-1991 was communicated to the applicant.

On 26 February 1992, the Commission received a complaint from the applicant in which he protested that, despite the reminders given by him, no staff reports had been drawn up since 1983 and stated that the proposal to extend the report for the period 1981-1983 so as to cover the final period was likely to give rise to error. He also applied for compensation of ECU 100000 in respect of the damage which he considered himself to have suffered as a result of that situation.

The Commission did not respond to that complaint.

Admissibility

1. Failure to comply with the rules governing the pre-litigation procedure

The Court points out that the second sentence of Article 91(1) of the Staff Regulations is governed by the first sentence, with the result that that provision confers unlimited jurisdiction on the Court of First Instance only where there exists a dispute regarding the legality of an act adversely affecting an official (paragraph 37).

See: 32/68 Grasselli v Commission [1969] ECR 505, para. 10; T-20/92 Moat v Commission [1993] ECR II-799, para. 46

Moreover, according to Article 91(2) of the Staff Regulations, an action may be brought before die Court of First Instance only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein and that complaint has been rejected by an express or implied decision. The complaint must itself be made against an act adversely affecting an official (paragraph 38).

It follows that die pre-litigation procedure required by die Staff Regulations prior to an action for compensation differs depending on whether or not die original circumstance complained of by die official constitutes an act adversely affecting him widiin die meaning of die Staff Regulations (paragraph 39).

If an official wishes to contest an act adversely affecting him, he may submit a complaint direct to die appointing authority and, if it is rejected, he may dien bring an action before die Court of First Instance for the annulment of the act adversely affecting him and/or compensation (paragraph 40).

See: 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, paras 10 and 11; T-84/91 Meskens v Parliament [1992] ECR II-2335, para. 42

If, on the other hand, the circumstance complained of by the official does not constitute an act adversely affecting him within the meaning of the Staff Regulations, he may only initiate the procedure by submitting a request to the appointing authority pursuant to Article 90(1) of the Staff Regulations; if that request is rejected, its rejection will constitute a decision adversely affecting him, against which he may lodge a complaint which may, as the case may be, form the subject-matter of an action for annulment and/or compensation (paragraph 41).

See: T-5/90 Marcato v Commission [1991] ECR II-731; T-64/91 Marcato v Commission [1992] ECR H-243, paras 32 to 34; T-72/91 Moat v Commission [1992] ECR II-1771, paras 40 and 41; T-1/91 Della Pietra v Coimnission [1992] ECR H-2145, para. 34; T-50/92 Fiorani v Parliament [1993] ECR II-555, paras 40, 41, 45 and 46; T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841, para. 45; T-27/92 Camera-Lampitelliand Others v Commission [1993] ECR II-873, para. 26; T-65/91 White v Commission [1994] ECR-SCII-23, para. 137

2. The pre-litigation procedure in the present case

The Court finds that the applicant's letters of 23 February 1988 and 19 December 1991 were merely reminders sent to a hierarchical superior and did not constitute requests within the meaning of Article 90(1) of the Staff Regulations (paragraphs 43 and 44).

It further finds that the complaint of 26 February 1992 was not submitted following the express or replied rejection of a request within the meaning of Article 90 of the Staff Regulations. Even on the assumption that the letter of 19 December 1991 did constitute a request, the complaint of 26 February 1992 would have been lodged prematurely, that is to say, before an implied decision rejecting that request took effect on the expiry of the period of four months from the date on which the request was submitted (paragraphs 45 and 46).

The applicant's contention that the complaint of 26 February 1992 must be regarded as having taken effect from 19 April 1992 — that is to say, four months after delivery of the letter of 19 December 1991 — cannot be upheld in any event, since the system of legal remedies established by Article 90(1) and (2) of the Staff Regulations presupposes that a complaint may only be lodged against an act adversely affecting an official which is already in existence at the time when it is lodged. Furthermore, an action which is brought prior to the making of an express or implied decision rejecting the complaint is inadmissible, and, according to case-law, the mandatory nature of the periods prescribed for instituting proceedings also applies to periods for lodging complaints (paragraph 47).

See: 122/79and 123/79 Schiavo v Co;mci7[1981] ECR 473, para. 22; 783/79 and 786/79 Venus and Obert v Commission and Council [1981] ECR 2445, para. 25; T-156/89 Valverde Mordi v Court ofJiistice [1991] ECR II-407, para. 29; T-78/91 Moat v Commission [1991] ECR II-1387, para. 4; T-20/92 Moat v Commission, cited above, para. 31

Consequently, a premature complaint can only be regarded as valid in exceptional circumstances, for example where it is subsequently supplemented. No such circumstance exists in the present case (paragraph 48).

See: T-156/89 Valverde Mordí v Court of Justice, cited above, para. 30; T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, para. III

It follows from all the foregoing that this case does not involve a two-stage pre-litigation procedure. In those circumstances, the Court must examine whether the administration's failure to draw up a staff report at least every two years, in accordance with Article 43 of the Staff Regulations, within the periods laid down by the general implementing provisions, constitutes a ‘failure to adopt a measure prescribed by the Staff Regulations’ and thus an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations (paragraph 49).

3. The concept of ‘failure to adopt a measure prescribed by the Staff Regulations’

The Court points out that it is only acts liable to have a direct and immediate effect on the legal position of an official which constitute acts adversely affecting him (paragraph 65).

See: 204/85 Streghili v Court of Auditors [1987] ECR 389; T-69/92 Seghers v Council [1993] ECR II-651

The relevant case-law has invariably characterized the absence of a staff report and/or delay in drawing it up as instances of maladministration, and never as acts adversely affecting an official (paragraph 66).

See: 24/79 ObertMrv Commission [1980] ECR 1743, para. 14; 207/81 Ditterich v Commission [1983] ECR 1359, paras 27 and 28; 173/82,157/83 and 186/84 Castille v Commission [1986] ECR 497, para. 34; T-73/89 Barbi v Commission [1990] ECR II-619, paras 35, 43 and 50; T-63/89 Latham v Commission [1991] ECR II-19, para. 39; T-27/90 Latham v Commission [1991] ECR II-35; T-68/91 Barbi v Commission [1992] ECR II-2127; T-13/92 Moat v Commission [1993] ECR II-287, paras 34 and 48; T-20/89 RV Moritz v Commission [1993] ECR II-1423, para. 37

In the light of that case-law, and having regard to the structure of Articles 90 and 91 of the Staff Regulations, the Court is unable to conclude that the failure to draw up a staff report constitutes, as such, an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations (paragraph 67).

First, the mere fact that a staff report is not drawn up within the prescribed period is not in itself sufficiently definitive or tangible to be regarded as an ‘act’ adversely affecting an official, even where it takes the form of a ‘failure’ to adopt a measure prescribed by the Staff Regulations; second, the mere absence of a staff report does not per se significantly alter an official's legal position, in that it does not in itself have binding legal effects definitively determining the institution's position (paragraph 68).

Furthermore, if the absence of a staff report were capable in itself of constituting an act adversely affecting an official, such a characterization would give rise to significant problems as regards the calculation of the period of three months prescribed by Article 90(2) of the Staff Regulations for lodging a complaint. Any procedure aimed at remedying the absence of a staff report would be time-barred if it were not commenced within three months from the date prescribed by the general implementing provisions for drawing up the staff report, with the effect that, following the expiry of that period, the Court would have no power to review the administration's failure to comply with its obligation under the Staff Regulations, notwithstanding that that obligation is not in any way extinguished on the expiry of the three-month period but becomes, on the contrary, all the more pressing with the passage of time (paragraph 70).

That would also mean that an official not receiving a staff report by the prescribed date would be obliged to lodge an immediate complaint in order to be sure of safeguarding his rights; in a context in which it is well known that the administrative bodies of all the Community institutions have difficulties in drawing up numerous staff reports within the prescribed period, that would not be compatible with the general scheme of the Staff Regulations, nor with the principles of equity and sound administration (paragraph 71).

Moreover, it is settled case-law that the administration is allowed a reasonable period in which to draw up a staff report after the date laid down by the general implementing provisions (paragraph 72).

See: Dilterich v Commission, cited above, para. 25; T-29/89 Moritz v Commission [1990] ECR II-787, para. 21

It follows from the foregoing that there does not exist in the present case any act adversely affecting an official against which an action may be brought (paragraph 73).

Operative part:

The application is dismissed as inadmissible.