Opinion of Mr Advocate General Tesauro delivered on 30 November 1988. - Jean Koutchoumoff v Commission of the European Communities. - Official - Protection under Article 24 of the Staff Regulations - Damages. - Case 224/87.



European Court reports 1989 Page 00099



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . In a request submitted on 4 June 1986 pursuant to Article 90(1 ) of the Staff Regulations the applicant stated that on 2 June 1986 he had been assaulted by one of his superiors, Mr Wilkinson, and asked the Commission to open disciplinary proceedings against that person . Following the tacit rejection of that request the applicant submitted a complaint on 27 November 1986 under Article 90(2 ) of the Staff Regulations . That complaint was also tacitly rejected by the Commission . The applicant therefore brought an action before the Court asking it in substance to :

( a ) annul the decision rejecting the complaint;

( b ) declare that the Commission had not exercised due diligence in its investigation of the requests he submitted;

( c ) order the Commission to pay compensation for material and non-material damage suffered .

I -- Admissibility

2 . In response to the application the Commission has brought a veritable "barrage" of objections of inadmissibility, to the point where examination of the procedural questions, some of which in my view reflect excessive formalism and a spirit of pettifoggery, eventually prevails over consideration of the substance of the case .

3 . A - First, the Commission argues that the action is inadmissible inasmuch as it is directed against an implied decision rejecting an administrative complaint - a decision which, as the Court has consistently held ( see Joined Cases 33 and 75/79 Kuhner v Commission (( 1980 )) ECR 1677 and Case 191/81 Plug v Commission (( 1982 )) ECR 4245 ) may not be challenged in so far as it merely confirms the prior act or failure to act to which the complainant takes exception .

4 . That objection cannot, I think, be upheld . First of all, it is evident both from the applicant' s conclusions and above all from the statement of the grounds on which the application is based that this action is in fact directed against the decision of the Commission not to grant the applicant the assistance he requested under Article 24 of the Staff Regulations . Therefore, to my mind, the applicant can be regarded as having intended to contest both the acts which constitute - as is evidenced by the application itself - the refusal to grant assistance : that is to say, the implied rejection of the request of 4 June 1986 and the rejection - also implied - of the subsequent complaint of 27 November 1986 .

5 . However, I would like to make one or two comments of a general nature regarding the Commission' s argument . There is no doubt that the rejection of an administrative complaint does in fact confirm the prior decision against which the complaint was made . However, I do not think it is correct to apply the procedural principle under which acts of a purely confirmatory nature cannot be challenged to the decision rejecting the complaint . As we know, the principle is intended to prevent circumvention of the bar to challenging an act which has become final by virtue of the expiry of the time-limit for appeal . A concrete example of such a case would be where the addressee of a decision which was already final tried, by submitting a new request, to obtain a decision with exactly the same content as the original decision, against which he would then appeal before the Court . However, it is clear that the submission of an administrative complaint in good time by the official is obviously not a device intended to evade the rule of public policy which governs the time-limits for appeals . On the contrary, the preliminary submission of an administrative complaint constitutes an obligation which the official must meet under the Staff Regulations in order to maintain his right subsequently to bring an action before the Court . Similarly, the decision rejecting the complaint cannot be considered as a means of deviously opening the way to an appeal which would not otherwise be available, but rather as an essential precondition for the admissibility of the action ( Article 91(2 ) of the Staff Regulations ).

6 . In the light of those considerations it is not, in my opinion, possible to agree with the argument that the decision rejecting the complaint cannot be challenged in so far as it merely confirms the contested act . That view, moreover, seems to be consistent with the Staff Regulations which, in Article 90(2 ), stipulates that "an appeal may be lodged" against the implied decision to reject the complaint .

7 . At this point it may be helpful to recall that in certain legal systems such as the Italian and French, which make or have made provision for a system of a compulsory preliminary administrative complaint, the fact that an action can be brought against decisions rejecting complaints - whether implied or express - has never been doubted . ( 1 )

8 . With regard to the judgments of 28 May 1980 and 9 December 1982, they do not, in my opinion, have the significance attributed to them by the Commission . In the Kuhner case there were in fact two decisions rejecting the complaint, the first implied and the second express, and two separate legal actions directed against the decisions to reject the complaint . In that case the Commission correctly invoked the confirmatory nature of the second decision in relation to the first, so that the second of the two actions was inadmissible . However, that case is different from the present case both because it concerned two decisions to reject a single complaint ( and not two decisions to reject a "request" and a "complaint" respectively ) and because there were two legal actions, separate but identical in substance, the second of which was inadmissible by virtue of the principle ne bis in idem .

As for the judgment in Plug v Commission, it should be observed that in that case the claim for annulment of the implied decision rejecting the complaint had the same content as other claims, in the same action, challenging the basic decisions against which the complaint had been submitted . In that case, therefore, for reasons of procedural economy it was possible to disregard the first application and give a ruling on the merits only of the other two, which in any event had the same subject-matter .

To summarize, in both the abovementioned cases the action ( or application ) against the decision rejecting the complaint duplicated another legal action ( or application ). That means that since the Court would hear the second action in any case, the fact that the first was inadmissible would not completely block the legal remedy, as it would, on the other hand, in this case .

9 . Finally, it should be recalled that in contrast to those precedents there are others in which neither the Commission nor the Court had any doubts concerning the admissibility of actions directed exclusively against a decision rejecting a complaint ( for an example which is particularly close to this case see Case 18/78 Mrs V . v Commission (( 1979 )) ECR 2093 ).

10 . B - Secondly, the Commission points out that in his administrative complaint the applicant did not rely explicitly on Article 24 of the Staff Regulations and did not claim any compensation . The subsequent action is therefore completely or partly inadmissible in so far as it introduces new issues, the breach of Article 24 and the application for damages, which were not raised in the pre-litigation procedure before litigation .

11 . Let me say straight away that those procedural arguments reflect an excessively formalistic interpretation of the principle of identity of subject-matter between administrative complaint and subsequent legal action . It is an interpretation which is not, to my mind, consistent with the spirit of the Staff Regulations as defined in the case-law of this Court .

In that context the following remarks are called for . The form and the content of the complaint are not prescribed . The Court has in fact emphasized ( Case 54/77 Herpels v Commission (( 1978 )) ECR 585 ), that "the stage of the procedure prior to litigation which is governed by Article 90 of the Staff Regulations is an exchange between the official unassisted by a lawyer and the administration"; it follows that "no form is prescribed for complaints which must, as the Court has often stated, be interpreted and understood by the administration with all the care that a large and well-equipped organization owes to those having dealings with it, including members of its staff" ( paragraphs 46 and 47 ).

12 . That is, moreover, in keeping with the purpose of the pre-litigation procedure, which is to make the institution aware of the basic object of the official' s complaints or requests so that any disputes are settled amicably within the administration, without the need for judicial review .

The principle of identity of subject-matter between complaint and action cannot therefore be interpreted in a manner which is so strict that it alters the nature of the procedure under Article 90(2 ) of the Staff Regulations, transforming an instrument which was intended simply as a "preliminary conciliatory stage" into a sort of anticipation of the subsequent legal action .

13 . It follows - as the Court has emphasized on a number of occasions ( see Case 173/84 Rasmussen v Commission (( 1986 )) ECR 197; Case 52/85 Rihoux v Commission (( 1986 )) ECR 1555; Case 142/85 Schwiering v Court of Auditors (( 1986 )) ECR 3199; Case 242/85 Geist v Commission (( 1987 )) ECR 2181 ) - that the content of the complaint is not binding strictly and absolutely for the contentious stage of the proceedings, if any, so that in the proceedings before the Court the person concerned may define and expand the complaints already submitted in the previous stage, presenting submissions and arguments which, while not appearing in the complaint itself, are closely related to it . In other words, the official does not have to specify in his complaint all the technical and legal implications of his application; it is incumbent instead upon the institution - which has the resources and the obligation to do so - to deduce and assess those implications "with all the care that a large and well-equipped organization owes to those having dealings with it ". From that it should be concluded that in the proceedings before the Court new applications and submissions are admissible provided that they are objectively related to the content of the complaint previously submitted to the administration .

14 . Looking at the matter from the other side, it should be observed that a different solution, emphasizing the duty of the official to specify the content of the complaint, might have unfair repercussions on the protection of the official' s rights . First of all, the official would be obliged, as early as the complaint stage of the procedure, to set out all the claims and submissions which he intended to present before the Court; furthermore, the institution could easily confine itself to an implied rejection of the complaint ( and, of course, of any prior request ), thus completely avoiding any comment on the content of that complaint while still retaining the possibility of obstructing any subsequent legal action by relying on the inadmissibility of submissions not made during the pre-litigation procedure .

15 . In the light of those preliminary remarks, I shall examine individually the objections of inadmissiblity mentioned above . With regard to the objection based on the absence of any express reference in the complaint to Article 24 of the Staff Regulations, it is sufficient to observe that that absence is irrelevant inasmuch as during the pre-litigation procedure, by alleging an assault by his superior and requesting the Commission to institute disciplinary proceedings, the applicant implicitly requested the assistance of the Commission . Therefore that objection should be rejected .

16 . With regard to the objection to the effect that the claim for compensation is a new one, it emerges from the application, and more clearly from the reply, that that claim consists in fact of three distinct heads . I shall examine them separately .

17 . ( a ) First, the applicant, relying on the second paragraph of Article 24 of the Staff Regulations, asserts that the institution is jointly and severally liable for the damage caused to him by the perpetrator of the assault . The duty to provide compensation under that article is nothing more than an expression of the wider duty of assistance which the administration owes to its officials . As emphasized above, it is precisely that duty that the applicant calls on the Commission to fulfil in his complaint . Consequently, I think that by invoking before the Court the specific duty to provide compensation, the applicant has not actually introduced a new element in relation to the subject-matter of the pre-litigation procedure . Moreover, it should be recognized that the Commission was perfectly able to recognize that by virtue of the second subparagraph of the provision of the Staff Regulations cited above the request for assistance formulated in a general way in the complaint could have consequences in relation to compensation for the damage suffered .

18 . ( b ) Secondly, the applicant asserts that the Commission is liable for the damage he suffered as a result of the decision to reject his complaint - a decision which he considers void on the ground that it infringes Article 24 of the Staff Regulations . There is no doubt that the complaint did not contain any claim for compensation for damages of that kind . However, it is also undeniable that the claim for damages is ancillary to the application for the annulment of the act adversely affecting him, being based on the same causa pretendi ( infringement of Article 24 of the Staff Regulations ). That close link is, moreover, confirmed by the fact that the inadmissibility of the application for annulment would have as an inevitable consequence the inadmissibility of the claim for damages . I therefore think that in order for the claim for damages to be admissible, it is sufficient that "the complaint through official channels (( should have )) alleged the invalidity of the act which is later challenged judicially" ( see the opinion of Advocate General Capotorti in Case 167/80 Curtis v Commission and Parliament (( 1981 )) ECR 1499 at p . 1533 ).

19 . That is, moreover, consistent with my observations above regarding the nature and purpose of the system of remedies under the Staff Regulations . Once an official has claimed in his complaint that an act is unlawful, the administration cannot but be aware that that unlawfulness, if established, may result in liability for the harm caused by the act in question . The Court gave a ruling to that effect in its judgment in Case 9/75 Meyer-Burkhardt v Commission (( 1975 )) ECR 1171, where it stated that in the event of the rejection of the complaint relating to the lawfulness of an act adversely affecting him, the official concerned is at liberty to bring an action before the Court concerning the legality of the act itself, and the financial consequences which may arise therefrom . The judgment in Case 54/77 Herpels v Commission (( 1987 )) ECR 585 is even more explicit : dealing with the admissibility of a claim for damages which was not made in the administrative complaint, the Court observed that :

"It appears from the application that this claim was made solely to cover the eventuality of the contested refusal' s being annulled, so that there was no need already to mention it expressly in the complaints which the applicant submitted to the defendant .

Moreover, it is important that the Court should be able to give a ruling on such claims .

It is right therefore to admit the claim for damages ."

20 . It is true that in its judgment of 4 July 1985 in Case 174/83 Amman v Council (( 1985 )) ECR 2133, the Court held otherwise, declaring inadmissible a claim for compensation ( for damages arising from the loss of purchasing power of arrears of salary ) which did not appear in the complaint . It is odd that that conclusion should be justified by reference to a paragraph of the decision in Meyer-Burckhardt v Commission, which - as we have seen - reached the opposite conclusion on this point and held the action, both for damages and annulment, to be inadmissible only because it was not introduced within the time-limit of three months after the rejection of the complaint . However, leaving aside that peculiarity, the fact remains that the approach adopted in Amman v Commission seems to be inspired by a very rigid interpretation of the rule that there should be identity of subject-matter between the pre-litigation procedure and the action before the Court . That interpretation runs the risk of increasing the burden upon the official without, however, lessening the considerable freedom, with respect to form and content, enjoyed by the administration in its replies to administrative complaints . It seems to me, therefore, preferable to consider the judgment in Amman v Commission as an isolated case and not as a sign that the Court has turned away from the approach adopted in the cases Meyer-Burckhardt v Commission and Herpels v Commission .

Consequently, I think the applicant' s claim for damages, based upon the unlawfulness of the Commission' s decision to reject his complaint, is admissible .

21 . It should be observed, moreover, that the Commission argues that this particular claim for damages is also inadmissible by virtue of the fact that it is ancillary to the claim for annulment, which is itself, says the Commission, inadmissible . That argument is clearly unfounded inasmuch as the claim for annulment, as we have seen, is admissible . Moreover, it seems to me that by emphasizing the ancillary nature of one claim in relation to the other, the Commission weakens its argument regarding the need to include the claim for damages as early as the complaint stage of the procedure .

22 . ( c ) Thirdly, the applicant claims compensation for the damage resulting from the lack of diligence displayed by the administration in its investigation of the request submitted to it . This claim for compensation, which is distinct from the two previous claims, is based on the liability of the administration arising not from an unlawful act but rather from wrongful conduct constituted, in general terms, by the delay in taking certain measures .

23 . An action of that kind is, as the Court has held, an independent legal remedy ( see Case 79/71 Heinemann v Commission (( 1972 )) ECR 579, in particular the opinion of Advocate General Roemer ), and is "subject to certain conditions adapted to its purpose ". It "is not subject to the time-limits laid down in Article 91 of the Staff Regulations" ( in the judgment in Joined Cases 19, 20, 25 and 30/69 Richez-Parise v Commission (( 1970 )) ECR 325, for example, the Court upheld the admissibility of a claim for damages - occasioned by a wrongful act or omission of the administration - which was submitted at the reply stage ); moreover, since this is a matter in which the Court has unlimited jurisdiction, "even in the absence of proper conclusions, it has the power ... if necessary, of its own motion to order (( the administration )) to pay compensation for damage occasioned by the (( administration' s )) wrongful act or omission" ( see judgments in Case 23/69 Fiehn v Commission (( 1970 )) ECR 547 and Joined Cases 176 and 177/86 Houyoux v Commission (( 1987 )) ECR 4333 ).

On the basis of those factors alone I believe it is possible to conclude that the applicant was not bound to submit that specific claim for compensation during the pre-litigation procedure, especially since, on reflection, at the time the complaint was submitted the wrongful act or omission, that is to say the failure to investigate the complaint with due diligence, could not yet have been committed .

24 . The Commission also submits, again in relation to the claim for damages, that by changing the claim for compensation at the reply stage, increasing the amount claimed from ECU 2 500 to ECU 6 050, the applicant introduced a new and therefore inadmissible claim . However, it should be observed that in the reply the applicant did not, in order to substantiate the damage complained of, put forward different submissions from those stated, even if in vague terms, in the application, that is to say the joint and several liability of the Commission under Article 24 of the Staff Regulations, the breach of a duty to provide assistance and lack of diligence in investigating the matter . He simply stated those arguments in more detail, reaching a different - that is to say higher - assessment of the damage . It is not a question of a new application ( mutatio libelli ), nor of a substantial modification of the original application, but of a simple amendment to the original application which does not modify its subject-matter and whose only consequence is therefore to open a new field of enquiry, thus making the other side' s defence more difficult . In fact the Commission did not even have to change its line of defence, since in its rejoinder it confined itself to repeating the arguments already put forward concerning the lack of foundation of the applicant' s claims .

I believe, therefore, that it is consistent with the requirements of justice and with proper procedural principles to uphold the admissibility of the claim for compensation as modified in the reply .

25 . C - We now come to the final objection of inadmissibility raised by the Commission .

The Commission argues that the action is inadmissible in so far as its purpose is to obtain a declaration by the Court that the Commission is obliged to open disciplinary proceedings .

26 . However, as pointed out above, the specific request for disciplinary measures against Mr Wilkinson made by the applicant in his request and in his complaint must be regarded as being part of a much wider request seeking to obtain the effective assistance of the Commission . The subsequent legal action must therefore be understood as intended to establish the unlawfulness, in so far as it infringes Article 24 of the Staff Regulations, of the decisions rejecting the request and the complaint . The objection seems to me therefore to be unfounded .

27 . I should add that in any event the initiation of disciplinary proceedings should not be - as the Commission claims - absolutely discretionary . I consider that the Court could, for example, rule that failure to open disciplinary proceedings against an official is unlawful if it is established that that decision is an indication that the administration is biased in favour of the official .

II - Substance

28 . With regard to the substance of the case the applicant argues :

( a ) that the decision to reject the complaint is contrary to Article 24 of the Staff Regulations;

( b ) that, in any event, the Commission' s lack of diligence in investigating his complaint constitutes unlawful conduct .

As a consequence of the submissions under ( a ) and ( b ), he also requests that the Commission be ordered to pay compensation for the material and non-material damage caused to him .

29 . With regard to the arguments set out under ( a ) it does not seem to me that in the circumstances the applicant can legitimately invoke breach of a duty of assistance on the part of the institution . The Commission rightly took into consideration :

( a ) the fact that the applicant himself admitted in his request that he prompted the incident by his refusal - in breach of the rules governing his employment - to sign the acknowledgement of receipt of his staff reports for the periods 1981 to 1983 and 1983 to 1985, something which, indeed, he had previously systematically avoided;

( b ) the fact that although he had requested the administration to intervene on his behalf, he had subsequently refused to cooperate fully by not supplying either in the request or during the investigation of the complaint any information which could prove the veracity of his own version of events and in particular his assertions regarding the violent behaviour of his superior .

30 . It is true that the applicant has sought to justify the fact that he did not name witnesses during the administrative stage by the fear of possible pressure by the Commission on those witnesses . The possibility cannot be ruled out that that fear may be real . Nevertheless it has to be pointed out that such pressure, if it existed - and moreover any other defect in the administrative investigation - would find its natural remedy among the means of recourse provided by the Staff Regulations, and could not in any event release the official from the burden of proving the validity of his assertions . Moreover, it should be stated that in the present case the risk of pressure from the Commission might at most justify the applicant' s reticence during the administrative stage, but not the fact that even during the subsequent litigation he did not put forward the slightest evidence to support his arguments and in particular his request for assistance addressed to the administration . It seems to me, therefore, that it is possible to conclude that in rejecting the applicant' s complaint the Commission did not infringe Article 24 of the Staff Regulations .

31 . Nor, in my view, can it be considered that the decision rejecting the complaint constituted a breach of the administration' s duty to look after the well-being of its officials, by which is meant, as the Court has consistently held ( see the judgment in Case 321/85 Schwiering v Court of Auditors (( 1986 )) ECR 3199 ), an obligation to take into account not only the interests of the service but also those of the official concerned . As appears from the letter sent on 15 May 1987 by Mr Hay, Director-General of the Directorate-General for Personnel and Administration, the Commission considered that the entire episode could be put into proper perspective if it rejected the applicant' s request but also decided not to accede to the request for the opening of disciplinary proceedings against him . Taking into consideration the fact that the applicant himself admitted that he had refused to sign the acknowledgement of receipt of his staff report - a fact which constitutes a breach of a duty imposed by the Staff Regulations - I think we may conclude that the Commission did, on the whole, take into account the applicant' s interests in deciding not to take any steps - favourable or otherwise - in respect of him .

32 . With regard to the applicant' s second argument, relating to the breach of the Commission' s duty to exercise due diligence, I should emphasize generally that in the face of incidents which disturb the order of the service, the institution is required to carry out a rapid, thorough and impartial investigation and take appropriate steps ( see the judgment of 14 June 1979 in Case 18/78 Mrs V . v Commission (( 1979 )) ECR 2093 ). Where incidents of that kind take place the administration should not, therefore, confine itself to mere preliminary investigations, obtaining the conflicting statements of the parties concerned, but should carry out an objective investigation so as to be in a position to base its own assessments and decisions on more reliable evidence .

33 . It must be said that in this case the Commission did not endeavour to carry out any investigation of that kind; moreover, it would have been at least desirable for the Commission to have invited the officials concerned to a meeting sooner, instead of doing so only after the complaint had been submitted, and to have expressly informed the applicant of its own assessment of the facts .

34 . That having been said, however, it should also be held that the institution has a certain discretion in deciding what inquiries should be made in a given case; the institution alone is in a position to assess what action it should take, having regard to the surrounding circumstances .

As was pointed out above, in this particular case the Commission decided, on the basis of the information provided by the parties concerned, that it was appropriate ( and, in the final analysis, also in the applicant' s own interest ) to play down the importance of the incident . The Commission was no doubt confirmed in that view by the fact that, as we have seen, throughout the pre-litigation procedure and even before the Court, no information came to light of such a nature as to endow the episode with an importance likely to impair the normal functioning of the service .

35 . From that point of view there is in my opinion one significant difference in relation to the case Mrs V . v Commission cited above, where it is was entirely clear that a violent altercation had taken place between the officials, who had also had a personal relationship, and where, consequently, the fact that the Commission did not carry out a prompt investigation constituted, as the Court held, a wrongful failure to act . It is obvious that the present case concerns an incident which even at first sight was of a different order of seriousness, including from the point of view of the responsibility, if any, of the officials involved .

36 . On the other hand, it does not seem to me that the facts of the present case, as set out by the parties, were such as to leave the Commission no choice regarding the carrying out of inquiries, particularly since the Commission considered that in such a situation it was in any event preferable to avoid taking any steps whatever in respect of the parties concerned .

Consequently, even if the Commission could have - and in different circumstances certainly should have - pursued its inquiries more thoroughly it is my opinion that in the present action the Commission remained within the limits of its discretion to assess the facts and circumstantial evidence available to it, and that in the final analysis it cannot be held to have committed a real breach of its duty to exercise due diligence .

37 . It is therefore clear that since the conduct of the Commission was in no way unlawful the application for damages must be dismissed .

III - Costs

38 . The Commission has asked for the applicant to be ordered to pay all the costs by virtue of the vexatious nature of the action . I think that application should be dismissed, not simply because in my opinion the Commission failed on the numerous objections of inadmissibility which it raised, but also because in such a sensitive case there is an objective interest in the Court examining whether the institution exercised due diligence in investigating the request submitted by the applicant .

On the basis of the above arguments I propose that the Court :

( a ) declare the action admissible;

( b ) dismiss the action on its merits;

( c ) order the parties to pay their own costs .

(*) Original language : Italian .

( 1 ) See R . Chapus, Droit du contentieux administratif, Paris, 1982, p . 202; S . Cassarino, Il processo amministrativo, Milan, 1984, p . 1160; and E . Cannada Bartoli, Encicl . dir ., p . 856 . For case-law see Conseil d' Etat Sect . 30 March 1973, Gen, p . 269; AJDA 1973, p . 268, concl . G . Guillaume; and Consiglio di Stato, VI, 3 March 1970, No 185 . It is clearly established, although on different grounds, that a decision to reject a complaint - implied or express - can be the subject of an appeal : reference is made to the substitutive nature of the rejection in relation to the original decision and to its newness inasmuch as it is adopted by a different body from that which adopted the original decision and is in theory taken following a specific enquiry and a reassessment of the law and the facts .