JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

13 July 1995

Case T-44/93

Monique Saby

v

Commission of the European Communities

‛Officials — Action for damages — Admissibility — Whether pre-litigation procedure correctly followed — Duty to provide assistance — Duty to have regard for the welfare of officials — Principle of the protection of legitimate expectations’

Full text in French II - 541

Application for:

a declaration of misconduct by the Commission and compensation for alleged material and nonmaterial damage.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant submitted a request to the appointing authority pursuant to Article 90(1) of the Staff Regulations, criticizing the nature of her tasks. She referred to health problems, which she blamed upon her working conditions, and drew the Commission's attention to her training efforts. Referring to the Commission's refusal to grant a secondment to her, she claimed that such a secondment would have been likely to resolve her difficulties. She added that she wished to obtain a proper job corresponding to her category and her intellectual and physical abilities as soon as possible. Finally, she stated that her personal mail had not reached her during her periods of absence due to sickness, and that she was making a complaint under the first paragraph of Article 24 of the Staff Regulations.

The appointing authority made no express decision in relation to that request. However, the applicant's request for authorization to participate in a vocational training scheme was rejected.

The applicant then lodged three complaints, repeating the comments made in her request (Complaint No 18648), challenging the refusal to authorize training (Complaint No 18649) and making further criticisms of her working conditions together with comments about administrative dysfunctions concerning her personal mail in particular (Complaint No 18650). In the latter complaint, she also requested that her personal mail should no longer be delivered to her office address.

Admissibility

Having established that this action is for compensation only, and does not seek the annulment of any administrative measure, the Court proposes to examine in turn the admissibility of the compensation claim relating to the request for vocational training, and then the admissibility of the more general claims, based on a series of instances of alleged misconduct by the Commission (paragraphs 22 and 23).

Vie admissibility of the compensation claim relating to the request for vocational training

Contrary to what the Commission maintains, the pre-litigation procedure has been complied with in this case. A claim for compensation made for the first time before the Court, whereas the complaint sought only the annulment of the decision by which the applicant claimed to have been adversely affected, is admissible since a request for annulment may imply a request for compensation for the damage suffered. That is so particularly when, as in this case, the official refers to damage in his complaint, even though he does not quantify it (paragraph 28).

See: 224/87 Koittclwumoffv Commission [1989] ECR 99; 126/87 Del Plato v Conunission [1989] ECR 643

The admissibility of the other compensation claims, based on a series of alleged instances of misconduct by the Commission

In principle, an official may submit to the Community judicature only such claims as have the same subject-matter as those contained in his administrative complaint. The application must be along die same lines as the complaint and may not, in principle, contain heads of claim other than those submitted during the pre-litigation procedure. Whilst an official may, nevertheless, submit to the Court claims which differ from those made during die pre-litigation procedure, his application to the Court may not alter either the subject-matter or die legal basis of die complaint (paragraph 30).

See: 346/87 Bossi v Conunission [1989] ECR 303

Secondly, in determining the admissibility of an action for compensation, a distinction must be made between two situations.

— Where, as in this case, an action does not contain any claim for the annulment of a particular measure but claims compensation for damage allegedly caused by a series of wrongful acts or omissions which, because they have no legal effect, cannot be described as acts adversely affecting an official, it is imperative that the administrative procedure commence with a request by the person concerned that the appointing authority compensate him for the damage, and be followed where appropriate by a complaint against the rejection of such request, failing which a subsequent action will be inadmissible.

See: T-29/91 Castelletti and Others v Conunission [1992] BCR II-77; T-64/91 Marcato v Commission [1992] ECR II-243; T-27/92 Camera-Lampitelliand Others v Commission [1993] ECR II-873; T-53/92 Viette de Stachelski v Commission [1993] ECR II-35

— Where, by contrast, there is a direct link between an action for annulment and an action for compensation, the action for compensation is admissible as ancillary to the action for annulment, without needing to be preceded either by a request that the appointing authority make good the damage alleged, or by a complaint challenging the foundation of an implied or express rejection of such request (paragraph 31).

See: T-27/90 Latham v Commission [1991] ECR II-35; Flette de Stachelski v Commission, cited above

In this case, the Court finds that the two Complaints Nos 18648 and 18650 do not allege damage any more than does the request, nor, a fortiori, do they mention, even by implication, any request for compensation for such damage. Since the claims in this action, other than those relating to the request for vocational training, are exclusively for compensation for damage allegedly caused by a series of wrongful acts or omissions which, because they have no legal effect, cannot be described as acts adversely affecting an official, they must be held inadmissible because they- were not preceded by a proper pre-litigation procedure, namely a sufficiently clear request by the applicant asking the appointing authority to make compensation for the damage alleged, followed where appropriate by a complaint against the rejection of that request. The mere fact that, in the circumstances indicated above, the applicant followed a pre-litigation procedure in two stages is not in itself capable of rendering the action admissible (paragraphs 36 and 37).

The Court would also point out that this action alters both the subject-matter and the legal basis as set out first in the request and then in Complaints Nos 18648 and 18650, which concerned the tasks to which the applicant was assigned, the treatment of her personal mail and her medical situation (paragraph 38).

The Court therefore dismisses the compensation claims based on a series of instances of allegedly wrongful conduct by the Commission as inadmissible, save for the claims concerning the rejection of the request for vocational training (paragraph 41).

Substance

A — As a preliminary point, the Court considers that it is required to rule on the applicant's pleas in law in support of her compensation claims only in so far as they relate to the rejection of the request for vocational training (paragraph 42).

The plea alleging infringement of the duty to have regard for the welfare of officials and the duty to provide assistance

The Court rejects both parts of this plea. In so far as the applicant, in alleging a breach of the duty of assistance, has sought to rely on infringement of the third and fourth paragraphs of Article 24 of the Staff Regulations, the Court points out that die obligation of the administration under that provision to facilitate further training for officials must be compatible with the proper functioning of die service and in accordance with the interests of the service and the official. The Court can find no manifest error in the appointing authority's assessment that the request in question was incompatible with the proper functioning of the service (paragraph 46).

In so far as the applicant maintains, in the second part of her plea, that the Commission disregarded its duty to have regard for the welfare of officials by refusing to consider her request for training, the Court points out that the duty to have regard for the welfare of officials reflects the balance of the reciprocal rights and obligations which the Staff Regulations have created in the relationship between public authorities and public servants. The duty implies in particular that the appointing authority should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also the interests of the official, subject however, so far as the protection of the rights and interests of officials is concerned, to compliance with the rules in force. Moreover, the duty to have regard to the welfare of officials cannot have the effect of preventing the appointing authority from adopting such measures for assigning officials to their tasks as it considers to be necessary in the interests of the service, since the filling of each post must be based on the interests of the service. Bearing in mind the extent of the discretion which the institutions have in assessing the interests of the service, review by the Community judicature must be limited to the question whether the appointing authority remained within reasonable limits and did not manifestly abuse its discretion (paragraph 47).

See: T-133/89 Búrban v Parliament [1990] ECR II-245; T-14/91 Weyrich v Commission [1991] ECR II-235; T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249; T-80/92 Turner v Commission [1993] ECR II-1465

The Court considers that that case-law may also be applied to decisions taken in the matter of further vocational training, since the administrative authority has a wide discretion with regard to the requirements for the proper functioning of the service. The Court finds that the applicant has merely made assertions, unsupported by any evidence which could establish that the administrative authority vitiated its discretion by manifest error and thereby acted in breach of its duty to have regard to the welfare of officials (paragraph 48).

The plea alleging infringement of the principle of the protection of legitimate expectations

The Court rejects this plea on the ground that, although the right to rely on the principle extends to any individual who is in a situation in which it appears that the Community administration has led him to entertain reasonable expectations, there is nothing in the documents before the Court to show that the Commission gave any undertaking or promise which could have led the applicant to entertain reasonable expectations that a course of vocational training would be authorized (paragraph 52).

See: 289/81 Mavridis v Parliament [1983] ECR 1731; T-45/91 Mc Avoy v Parliament [1993] ECR II-83

B — In die interests of the proper administration of justice, the Court considers it appropriate to give the fullest possible legal consideration to the applicant's case and to dismiss on die merits the complaints relied on in support of those claims in the application which relate to a series of instances of allegedly wrongful conduct, other than the rejection of die request for vocational training, even though those claims have already been declared inadmissible (paragraph 53).

In the first place, the duty to provide assistance is concerned with the defence of officials against acts of third parties and not against acts of die institutions themselves, die review of which falls under outer provisions of die Staff Regulations (paragraph 54).

See: T-24/91 Gómez González and Others v Council [1992] ECR II-1881; T-25/91 Arto Hijos v Council [1992] ECR II-1907; Mc Avoy v Parliament, cited above

Secondly, the odier complaints concerning die applicant's working conditions, her alleged ‘overqualification’ and die alleged dysfunctions are not supported by any evidence and are expressly disputed by the Commission (paragraph 55).

Thirdly, as regards the pleas alleging infringement, on the one hand, of the duty to have regard to the welfare of officials and the duty to provide assistance, and, on the other, of the principle of the protection of legitimate expectations, the Court considers that, for the same reasons as those set out above, the applicant's complaints must be rejected in any event (paragraph 56).

Fourthly and finally, the assertions relating to the nonmaterial damage which the applicant claims to have suffered are not supported by any evidence and, moreover, as the Commission has rightly pointed out, the only material damage specified by the applicant is not capable of being the subject of compensation (paragraph 57).

The Commission is also right to point out that the lawyers' consultation fees and other costs allegedly incurred at the time of the pre-litigation procedure are the result of a deliberate choice by the person concerned and cannot in any event be imputed to the Commission, even if costs ofthat nature were incurred in the course of the pre-litigation procedure (paragraph 60).

See: 54/77 Herpels v Commission [1978] ECR 585; T-180/94 M v Commission [1994] ECRSC II-663, para. 26

Since no unlawful conduct can be imputed to the Commission by reason of the acts or omissions alleged by the applicant, the Com! considers that she has no case for maintaining that she suffered any damage as a result of the Commission's conduct and dismisses the application in its entirety (paragraphs 63 and 64).

Operative part:

The application is dismissed.