JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

13 March 2013

Case F‑91/10

AK

v

European Commission

(Civil service — Officials — First paragraph of Article 43 of the Staff Regulations — Delay in drawing up career development reports — Non-material damage — Loss of opportunity for promotion)

Application: Brought by AK under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, seeking, first, annulment of the decision of the Commission of the European Communities of 24 November 2009 rejecting her application both for compensation for the loss she suffered by reason of the failure to draw up career development reports (‘CDRs’) for periods 2001/2002, 2004, 2005 and 2008 and for the launch of an administrative inquiry into claims of psychological harassment, and secondly, an order that the Commission pay damages.

Held: The Commission is ordered to pay AK the sum of EUR 15 000 in compensation for the non-material damage she suffered. The Commission is ordered to pay AK the sum of EUR 4 000 in compensation for the loss of opportunity to be promoted to a grade higher than grade A 5 or equivalent before 1 March 2008. The action is dismissed as to the remainder. The Commission is to bear its own costs and is ordered to pay the costs incurred by AK.

Summary

1. Actions brought by officials — Interest in bringing proceedings — Actions for damages — Delay in drawing up career development reports — Official retired on grounds of total permanent invalidity — Continuing interest in bringing proceedings

(Staff Regulations, Arts 53, 78, 90, 91)

2. Officials — Reports procedure — Career development reports — Drawing up — Delay — Breach of administrative duty giving rise to non-material damage — Conditions — Official retired on grounds of total permanent invalidity — Extent of damage

(Staff Regulations, Art. 43)

3. Officials — Non-contractual liability of the institutions — Failure to comply with judgment annulling previous act within a reasonable time — Breach of administrative duty

(Art. 266 TFEU)

4. Actions brought by officials — Unlimited jurisdiction — Compensation for material damage relating to a lost opportunity — Assessment — Criteria

(Staff Regulations, Art. 91(1))

1. An official retired automatically on the ground of invalidity, whether the possibility of his reinstatement is purely hypothetical or indeed real, retains in principle an interest in receiving compensation for damage actually suffered as a result of delay in drawing up CDRs. This does not, however, exempt that official from complying with the rules under which the European Union incurs non-contractual liability, and inter alia the requirement that in order to obtain compensation the official must establish that he has suffered actual and certain damage.

(see paras 33, 35)

See:

27 January 1982, 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Council and Commission, para. 9; 22 December 2008, C‑198/07 P Gordon v Commission

12 December 1996, T‑99/95 Stott v Commission, para. 72

12 May 2011, F‑50/09 Missir Mamachi di Lusignano v Commission, para. 117, on appeal before the General Court, T‑401/ P; 13 September 2011, F‑101/09 AA v Commission, para. 78

2. The administration must ensure that CDRs are drawn up periodically on the dates laid down by the Staff Regulations, or by rules adopted thereunder, and that CDRs are drawn up in a proper form, both for reasons of sound administration and in order to safeguard the interests of officials. Therefore, in the absence of special circumstances, the administration commits a breach of administrative duty giving rise to liability on its part where it delays in drawing up a CDR.

A delay in the drawing up of a staff report may in itself be prejudicial to the official for the simple reason that his career progress may be affected by the absence of such a report at a time when decisions concerning him must be taken. From that perspective, it is possible to take the view that an official retired automatically on the ground of invalidity may seek compensation for real and certain non-material damage resulting from the state of uncertainty and concern regarding his professional future which the absence of a CDR may have caused him when he was in active employment. That applies a fortiori since a CDR constitutes formal evidence in writing of the quality of the work which that official has carried out during the period under consideration.

However, an official retired automatically on the ground of invalidity, whose prospects for reinstatement are hypothetical, cannot claim, in respect of the period following his automatic retirement, that he has suffered real and certain non-material damage resulting from the state of uncertainty and concern regarding his professional future, since that professional future is in fact hypothetical.

(see paras 49, 60, 63)

See:

28 May 1997, T‑59/96 Burban v Parliament, para. 68; 23 October 2003, T‑279/01 Lebedef v Commission, paras 55 and 56; 30 September 2004, T‑246/02 Ferrer de Moncada v Commission, para. 68

3. The institution whose act has been annulled is required to take the necessary measures to comply with the judgment annulling that act. In this regard, since compliance with such a judgment requires the adoption of a number of administrative measures, the institution has a reasonable time to comply with that judgment. Consequently, an institution infringes Article 266 TFEU and commits a breach giving rise to liability on the part of the European Union where, in the absence of particular difficulties in the interpretation of the judgment annulling an act, or of practical difficulties, it fails to adopt specific measures to comply with that judgment within a reasonable period.

(see para. 50)

See:

10 July 1997, T‑81/96 Apostolidis and Others v Commission, para. 37

17 April 2007, F‑44/06 and F‑94/06 C and F v Commission, paras 60 and 63 to 67

4. Provided it is sufficiently substantiated, a loss of opportunity, such as inter alia that of being promoted earlier, constitutes material damage for which compensation may be claimed. An official retired automatically on the ground of invalidity retains the right to claim compensation for loss of the opportunity to be promoted, even if his prospects for a return to service are hypothetical, because that loss of opportunity may have caused him damage during the time he was in active employment and is likely to have an impact on the amount of the invalidity allowance paid to him, and on the amount of the retirement pension that will subsequently be awarded to him.

In order to determine the amount of compensation to be paid in respect of loss of opportunity, it is necessary, having identified the nature of the opportunity of which the official has been deprived, to determine the date from which he would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the official of that loss of opportunity. In addition, where possible the opportunity of which an official has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this way it is accepted that the damage suffered may be assessed ex æquo et bono.

(see paras 69, 91-92)

See:

13 September 2011, F‑101/09 AA v Commission, paras 81, 83, 93 and 94

10 November 2010, T‑260/09 P OHIM v Simões Dos Santos, para. 104