ORDER OF THE GENERAL COURT (Appeal Chamber)

10 November 2009

Case T-180/08 P

Giuseppe Tiralongo

v

Commission of the European Communities

(Appeal – Civil service – Temporary staff – Non-extension of a fixed-term contract – Action for damages – Cause of the damage – Obligation to state reasons on the part of the Civil Service Tribunal)

Appeal: against the order of the Civil Service Tribunal of the European Union (First Chamber) of 6 March 2008 in Case F-55/07 Tiralongo v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, seeking the annulment of that order.

Held: The appeal is dismissed. Mr Giuseppe Tiralongo is ordered to bear his own costs and to pay those incurred by the Commission of the European Communities.

Summary

1. Officials – Actions – Actions for damages – Pre-litigation procedure – Different depending on whether there is an act having adverse effect

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Pleas in law

(Staff Regulations, Arts 90 and 91)

3. Community law – Principles – Protection of legitimate expectations and non-discrimination – Infringement

1. The pre-litigation procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case it is for the person concerned to submit to the appointing authority, within the prescribed time-limit, a complaint directed against the act in question. In the second case, however, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request.

Thus the reply to the question whether the damage relied on originates in an act having adverse effects or in conduct on the part of the administration which contains nothing in the nature of a decision is essential for ascertaining whether the pre-litigation procedure and the time-limits laid down in Articles 90 and 91 of the Staff Regulations have been observed and thus whether the action is admissible. Since those rules are mandatory, that characterisation falls within the jurisdiction of the Union court alone, which need not be bound by the parties’ characterisation.

It cannot be accepted that, by drawing up an application in such a way as to avoid stating that the damage is the result of the unlawfulness of certain measures, an individual may circumvent the application of the rules on time-limits laid down by the Staff Regulations.

(see paras 24-25)

See: 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, paras 10 and 11; 106/80 Fournier v Commission [1981] ECR 2759, paras 15 to 18; 401/85 Schina v Commission [1987] ECR 3911, para. 9; T‑64/91 Marcato v Commission [1992] ECR II‑243, paras 32 and 33; T‑84/91 Meskens v Parliament [1992] ECR II‑2335, para. 33; T‑79/92 Ditterich v Commission [1994] ECR-SC I‑A‑289 and II‑907, para. 40; T‑15/96 Liao v Council [1997] ECR-SC I‑A‑329 and II‑897, para. 27; T‑181/97 Meyer and Others v Court of Justice [1998] ECR-SC I‑A‑151 and II‑481, para. 22; T‑253/97 Giegerich v Commission [1999] ECR-SC I‑A‑233 and II‑1177, para. 18; T‑241/03 Marcuccio v Commission [2006] ECR-SC I‑A‑2‑111 and II‑A‑2‑517, para. 52; T-66/05 Sack v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, para. 35

2. A distinction must be drawn between, on the one hand, actions on the part of the administration, whether in the form of acts having adverse effects or conduct containing nothing in the nature of a decision, which have caused the damage and are allegedly vitiated by illegalities, and, on the other hand, the illegalities themselves. Any infringements of the applicable provisions or of various general principles therefore constitute grounds for illegality which may vitiate the administration’s acts or conduct, but do not, in themselves, constitute acts.

Since it is not disputed that a letter fixing the date for the termination of a staff member’s contract is an act adversely affecting him, it may not be considered that, in replying to letters from the staff member essentially asking it to reconsider that decision, the administration gave rise to conduct containing nothing in the nature of a decision, of which each of its confirmatory letters is only one component. That interpretation would enable the person concerned to circumvent the time-limits for challenging acts having adverse effects, whether through an application for annulment or a claim for damages, provided for in Articles 90 and 91 of the Staff Regulations, by repeatedly asking the administration to reconsider a decision adversely affecting him. The reference in the case-law to ‘conduct’ does not necessarily mean a succession of actions on the part of a Community institution, but is designed solely to distinguish cases in which the institution has adopted an act having adverse effects from those in which its conduct contains nothing in the nature of a decision.

(see paras 27, 38)

3. The fact that, in order to declare that there has been a breach of the principle of the protection of legitimate expectations or of the principle of non‑discrimination, it must be found that there have been a number of acts or instances of conduct on the part of the administration does not mean that any breach of those principles may be regarded as the conduct of the administration. A breach of a legal principle, whatever its nature, is not in itself either an act or conduct of the administration containing nothing in the nature of a decision, but a ground of illegality of an act or conduct.

(see para. 36)