JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

28 May 1998

Joined Cases T-78/96 and T-170/96

W

v

Commission of the European Communities

‛Officials — Action for annulment and compensation — Admissibility — Reassignment — Interest of the service — Duty to have regard for officials' welfare — Misuse of powers — Statement of reasons — Liability — Service-related fault’

Full text in French II-745

Application for:

annulment of a decision of 20 July 1995 to reassign the applicant, an express decision of 16 February 1996 rejecting her complaint against that decision, an implied decision rejecting her claim for damages of 19 October 1995 and, in so far as necessary, a decision of 26 June 1996 not to admit in its entirety the applicant's complaint against the latter decision.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a Grade C 4 official of the Commission, was posted with effect from 16 May 1991 to the Office for Official Publications of the European Communities (EUROP), in the secretariat of the directorate, ‘management of external staff and the budget’ team, to work as a trainee under the direct authority of Mrs C.

On 3 July 1995 the assistant to the director of the EUROP informed the applicant that he had decided to propose that she be reassigned to a post as trainee in the ‘sales’ department, owing to the poor relations between the applicant and Mrs C. By decision of 20 July 1995 the director general of the EUROP reassigned the applicant, in the interest of the service, with effect from 1 August 1995, to an OP/4 post in group A ‘publications’.

On 11 September 1995 the applicant submitted a request for communication of her periodic report for 1991/1993, which she had not yet received. It was communicated to her on 6 October 1995.

On 17 October 1995 the applicant submitted a complaint against the decision to reassign her and then, on 19 October 1995, a claim for damages by way of compensation for the material and nonmaterial harm which she had suffered.

On 14 December 1995 the inter-services group met to consider the complaint of 17 October 1995; that meeting was not attended by the applicant, who was then on leave.

On 16 February 1996 the Commission expressly rejected the applicant's complaint of 17 October 1995 concerning her new posting.

On 11 March 1996 the applicant submitted a fresh complaint, this time against the implied decision rejecting her claim for damages of 19 October 1995.

On 26 June 1996 the appointing authority upheld in part the applicant's complaint of 11 March 1996 and awarded her compensation of BFR 30000 for the harm associated with the delay in drawing up her periodic report for 1991/1993. The remainder of her complaint was rejected.

By application lodged on 22 May 1996, which was registered as Case T-78/96, the applicant brought an action against the decision of 20 July 1995 and the express decision of 16 February 1996.

By application lodged on 22 October 1996, which was registered as Case T-170/96, she brought an action against the implied decision rejecting her claim for damages of 19 October 1995 and the decision of 26 June 1996.

The cases were joined for the purpose of the oral procedure and the judgment.

Admissibility

An official is adversely affected by an act only where it is such as to have a direct effect on his position in law and thus goes beyond measures which, concerning only the internal organisation of the departments, do not adversely affect the position of the official concerned under the Staff Regulations (paragraph 46).

See: 32/68 Grasselli v Commission [1969] ECR 505, paras 4 to 7; T-47/90 Herremans v Commission [1991] ECR H-467, paras 21 and 22; T-50/92 Fioroni v Parliament [1993] ECR II-555, para. 29

In that regard, although a decision to redeploy an official does not affect that official's material interests or rank it may, having regard to the nature of the functions concerned and the circumstances, adversely affect the applicant's nonmaterial interests and future prospects, since some functions, whilst being equally classified with others, may lead more readily to promotion by reason of the nature of the responsibilities exercised. Such a decision necessarily affects the administrative situation of the official concerned, since it alters the place and conditions for the performance of his duties and also their nature. Consequently, there is no prima facie reason why it should not adversely affect the official to whom it is addressed (paragraph 47).

See: 3/72 Kley v Commission [1973] ECR 679, para. 4; 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 13; 60/80 Kindermann v Commission [1981] ECR 1329, para. 8; T-36/93 Ojha v Commission [1995] ECRSC II-497, para. 42; C-294/95 P Ojha v Commission [1996]ECR I-5863, para. 58;T-13/96 Forcat Icardo v Commission [1997]ECRSC II-485, para. 16

Since in the present case the contested decision altered the conditions and nature of the applicant's duties it affects her legal situation and, accordingly, is an act adversely affecting her within the meaning of Articles 90 and 91 of the Staff Regulations of Officials of the European Communities (Staff Regulations).

See: 19/87 Hecą v Commission [1988] ECR 1681, paras 9 to 11

Substance

First plea, alleging an infringement of Articles 4 and 29 of the Staff Regulations

The rule of consistency between the initial administrative complaint and the application initiating legal proceedings requires, as a condition of admissibility, that any plea put forward before the Court must have been raised in the complaint in the context of the pre-litigation procedure so that the appointing authority can be in a position to know in sufficient detail the criticisms made by the official concerned against the contested decision. While the statement of the form of order applied for may contain heads of claim based on the same matters as the heads of claim raised in the complaint, however, the former may none the less be developed before the Court by the submission of pleas and arguments which need not necessarily appear in the complaint but which must be closely linked to it. Furthermore, since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer, the administration must not inteipret complaints restrictively but, on the contrary, must consider them with an open mind (paragraph 61).

See: T-496/93 Allo v Commission [1995] ECRSC II-405, paras 26 and 27

In the present case the applicant did not dispute in her complaint of 17 October 1995 the legal classification of reassignment and did not claim that there had been any breach of Articles 4 and 29 of the Staff Regulations (paragraph 63).

A plea which is not put forward, even by implication, during the pre-litigation procedure cannot be raised for the first time before the Court after the time-limits for submitting complaints and bringing proceedings laid down in Articles 90 and 91 of the Staff Regulations have expired (paragraph 64).

These time-limits are a matter of public policy and derogations may be made only exceptionally, by reason of the occurrence of a new substantial fact (paragraph 65).

See: 23/80 Grasselli v Commission [1980] ECR 3709, para. 26; T-242/94 Del Plato v Commission [1994] ECRSC II-961, para. 18

That solution, which has been established in case-law in relation to the admissibility of an action, must be extended to the question of the admissibility of a plea. The principles underlying the system of the admissibility of an action and, in particular, those relating to the rule of consistency between the administrative complaint and the appeal, namely the principles of legal certainty and observance of the rights of the defence, also justify the application of an analogous solution as regards the admissibility of a plea put forward for the first time before the Court in a dispute relating to the public service (paragraph 66).

For the pui-pose of examining whether the circumstances invoked by the applicant, namely the publication of vacancy notices relating to her former duties and her new duties, may be regarded as new substantial facts susceptible of being invoked after the expiry of the time-limit for submission of a complaint, the Court points out that the subsequent discovery by an applicant of an already existing plea or factor cannot, in principle, be treated as a new substantial fact capable of justifying the reopening of time-limits, without destroying the principle of legal certainty (paragraph 68).

See: T-506/93 Moat v Commission [1995] ECRSC II-147, para. 28

The facts which the applicant invokes are factors which already existed on the date on which she submitted her complaint. The plea is therefore inadmissible (paragraph 69).

In any event, even supposing that the facts invoked by the applicant were regarded as new substantial facts, the plea which she puts forward must be declared inadmissible because she failed to submit a further complaint under Article 90 of the Staff Regulations (paragraph 73).

In the absence of such a complementary prior complaint, one of the objectives of the pre-litigation procedure, namely to permit an amicable settlement of the differences which have arisen between officials or servants of the Communities and the administration, could not be achieved, since the administration was not in a position to know in sufficient detail the criticisms which the applicant made against the contested decision (paragraph 74).

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 9 to 12; T-87/91 Boessen v ESC [1993] ECR II-235, para. 28

Second plea, alleging a breach of Article 7 of the Staff Regulations

The institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided, however, that such assignment is made in the interests of the service and conforms with the principle of assignment to an equivalent post (paragraph 87).

See: C-294/95 P Ojha v Commission, cited above, para. 40; T-80/92 Turner v Commission [1993] ECR II-1465, para. 53; Forçat leardo v Commission, cited above, para. 26

In particular, where they cause tensions prejudicial to the proper functioning of the service, internal relational difficulties may justify the transfer of an official in the interests of the service. Such a measure may even be taken irrespective of the question of responsibility for the incidents in question. This rule applies a fortiori in relation to the external relations of a department (paragraph 88).

See: 124/78 List v Commission [1979] ECR 2499, para. 13; C-294/95 P Ojha v Commission, cited above, paras 41 and 42

Any problems which might be caused to his former department by the departure of an official and the benefit to his new department which might be obtained from his reassignment are considerations which are governed by the broad discretion which the institutions have to organise their departments. Consequently, the Court's review must be confined to ascertaining whether the appointing authority kept within limits which are not open to criticism and did not misuse its discretion (paragraph 92).

See: 176/82 Nebe v Commission [1983] ECR 2475, para. 18; T-20/89 Moritz v Commission [1990] ECR II-769, para. 39; T-13/95 Krypitsis v ESC [1996] ECRSC II-503, para. 56

As regards the allegation that the contested decision is contrary to Articles 26 and 43 of the Staff Regulations on the ground that the applicant's personal file did not contain her periodic report for 1991/1993, the Court observes that although periodic reports belong to the category of documents which by their very nature must be placed on the personal file, the aim which the legislature pursued in creating that file is, inter alia, to protect the official's right to be heard in respect of matters which may affect his career. It follows that where a situation of conflict is already known to all those directly involved and has no connection with any unfavourable assessment of the official's capabilities, the fact that the periodic report is not on the official's personal file cannot affect the legality of the contested decision (paragraph 99).

See: 6/79 and 97/79 Grassi v Council [1980] ECR 2141, paras 17 to 20; C-294/95 P Ojha v Commission, cited above, paras 57 to 59, 67 and 68

As regards the complaint alleging that the appointing authority failed to arrange a prior interview with the applicant, the Court observes that the administration is not required to consult the officials concerned beforehand concerning measures for the reorganisation of the departments which may affect their position (paragraph 100).

See: Hecą v Commission, cited above, para. 20; T-36/93 Ojha v Commission, cited above, para. 81

As regards the applicant's argument that she was never aware of the complaints which Mrs C. might have made against her, it is sufficient to state that the contested decision aimed to put an end to what in objective terms was considered a situation of conflict of which the applicant was fully aware and that it was not intended to punish the applicant in respect of any conduct (paragraph 101).

As regards the applicant's argument that the duties associated with her new post are inferior to those which she performed in her previous post, the Court points out that although the Staff Regulations are intended to ensure that an official is given the grade obtained and a post which corresponds to that grade they do not confer any right to a specific post but leave to the appointing authority the power to assign officials, in the interests of the service, to the various posts which correspond to their grade (paragraph 102).

The rule that the post is to correspond with the grade, laid down, in particular, in Article 7 of the Staff Regulations, entails, where an official's duties are changed, not a comparison between his existing duties and his former duties but one between his existing duties and his grade (paragraph 103).

Furthermore, for a measure for the reorganisation of the departments to affect an official's rights under the Staff Regulations adversely and thereby form the subject-matter of an appeal, it is not sufficient that it should bring about a change and even any diminution of the official's responsibilities, but it is necessary that, taken together, his new responsibilities should clearly fall short of those corresponding to his grade and post, taking account of their character, their importance and their scope (paragraph 104).

See: Hecq v Commission, cited above, para. 7; T-46/89 Pitrone v Commission [1990] ECR II-577, paras 33 to 35; T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, paras 48, 49 and 51

Last, while it cannot be denied that the administration has every interest in assigning its officials to posts which accord with their particular aptitudes and their personal preferences, an official cannot for all that be recognised as having a right to perform or to retain specific duties, or to refuse any other duties pertaining to his basic post (paragraph 105).

See: 218/80 Kruse v Commission [1981] ECR 2417, para. 7; 36/81, 37/81 and 218/81 Sewn v Commission [1983] ECR 1789, paras 41 to 44

Third plea, alleging a breach of the duty to have regard for the interests of officials

The administration's duty to have regard for the interests of its servants reflects a balance between the reciprocal rights and obligations created by the Staff Regulations for relations between the public authority and public service employees, but the requirements of this duty cannot prevent the appointing authority from adopting the measures it believes necessary in the interests of the service, since each post must be filled primarily in the interests of the service. Having regard to the extent of the discretion enjoyed by the institutions in evaluating the interests of the service, the review undertaken by the Court must be confined to the question whether the appointing authority remained within acceptable bounds and did not use its discretion in a manifestly wrong way (paragraph 116).

See: Turner v Commission, cited above, para. 77

In that regard, an official may not object, by reference to his personal interest, to measures adopted by the appointing authority in respect of the organisation or rationalisation of departments and recognised as being in the interests of the service (paragraph 116).

See: Nebe v Commission, cited above, para. 19

Fourth plea, alleging misuse of powers

In the field of the law of the public service, there is misuse of powers only if there is objective, relevant and consistent evidence that the contested decision pursued a purpose other than that which the appointing authority was empowered to pursue under the applicable provisions of the Staff Regulations (paragraph 129).

See: Turner v Commission, cited above, para. 70; T-192/94 Maurissen v Court of Auditors [1996] ECRSC II-1229, para. 75

Far from being a veiled sanction against the applicant, the contested decision is a measure for the reorganisation of the departments adopted with the aim of putting an end to a situation of conflict and, as such, is in the interests of the service. Nor is it based on any attribution of liability to the applicant. The contested decision cannot therefore be considered void for misuse of powers (paragraphs 131 and 132).

Fifth plea, alleging failure to state reasons

After examining the applicant's complaints, the Court rejects the plea alleging failure to state reasons (paragraphs 141 to 144).

Action for compensation (Case T-170/96)

1. Claims for compensation for the harm resulting from the decision of 20 July 1995

Ttie five service-related faults invoked in the context of T-78/96 as a ground for annulment

Admissibility

Under the system of remedies established by Articles 90 and 91 of the Staff Regulations an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which compensation 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 that is not in the nature of a decision. In the first case it is for the official concerned to submit to the appointing authority, within the prescribed period, a complaint against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, foicompensation and continue, where appropriate, with a complaint against the decision rejecting that request (paragraph 156).

See: T-36/93 Ojha v Commission, cited above, para. 117; T-500/93 Y\Court of Justice [1996] ECRSC II-977, para. 64

Where there is a direct link between an action for annulment and an action for damages, however, the action for damages is admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and a complaint challenging the correctness of the implied or express decision rejecting the request (paragraph 157).

See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] BCR II-841, para. 46; Y v Court of Justice, cited above, para. 66

Last, an official who has failed within the periods prescribed in Articles 90 and 91 of the Staff Regulations to bring an action for annulment against an act adversely affecting him cannot repair that omission and procure for himself further time for bringing proceedings by means of a claim for compensation (paragraph 158).

See: T-20/92 Moat v Commission [1993] ECR II-799, para. 46

It follows that where there is a direct link between an action for annulment and an action for compensation the separate action for compensation is admissible even though it could also have been brought by way of an ancillary claim to the action for annulment, and it makes no difference that the action was not preceded by a request to the appointing authority for compensation for the harm allegedly suffered and a complaint challenging the correctness of the implied or express decision rejecting the request (paragraph 159).

Provided that the official brings an action for annulment of the act alleged to have adverse effect within the periods prescribed in Articles 90 and 91 of the Staff Regulations, there is no risk, at least as regards the grounds of annulment relied on in that action, that he will procure himself further time for bringing proceedings by means of a claim for compensation (paragraph 160).

Substance

Where an official brings an action for, first, the annulment of an act of the administration and, second, compensation for the damage which he considers he has suffered as a result of that act, the claims are closely linked to each other, so that where the claims for annulment are inadmissible the claims for compensation are likewise inadmissible (paragraph 166).

See: T-72/92 Benzler v Commission [1993] ECR II-347, paras 21 and 22

Mutatis mutandis, that case-law is applicable to the admissibility of the pleas. The plea alleging an infringement of Articles 4 and 29 of the Staff Regulations have been declared inadmissible in the context of Case T-78/96 and must therefore be declared inadmissible in the context of Case T-170/96. The remaining pleas, alleging the existence of four service-related faults corresponding to the remaining infringements alleged in die context of the action for annulment, which were rejected as to their substance in the context of the action for annulment must also be rejected in the context of the action for compensation (paragraphs 167 and 168).

The three new alleged service-related faults

Admissibility

The Court rejects the objection of inadmissibility raised by the Commission against the three new faults invoked by the applicant (paragraphs 178 to 183).

Substance

— The adoption of the decision of 20 July 1995 on the basis of an incomplete file

This plea is rejected since in the Court's view the absence of the periodic report for the reference period had no impact on the decision of 20 July 1995 (paragraphs 187 and 188).

— Failure to observe the principle of good management and sound administration

This plea is rejected. The Court considers that the Commission did not infringe the principle of good management and sound administration by only informing the applicant of the decision concerning her new duties 10 days before she took up her new duties, particularly since, as the reason for adopting the decision was the need to put an end to a situation of conflict, it would have been pointless to allow that situation to deteriorate by creating fresh opportunities for dispute between the two persons concerned (paragraphs 189 to 192).

— The failure of the inter-services group to consider the complaint

This plea is rejected. The Court considers that even if the failure to hold an inter-services meeting may have infringed the rights of the defence, it cannot in this case be regarded as an illegality of such a kind as to render the Commission liable, since the existence of seven of the service-related faults alleged by the applicant has not been upheld (paragraph 211).

2. Claims for compensation for the harm resulting from the delay in drawing up the periodic report for 1991/1993

Admissibility

The Commission's objection of inadmissibility is rejected (paragraph 226).

Substance

The absence of the periodic report from an official's personal file is capable of giving rise to nonmaterial damage if his career could have been affected thereby or if that fact resulted in his being put in an uncertain or anxious frame of mind with regard to his future (paragraph 233).

See: T-27/90 Latham v Commission [1991] ECR II-35, para. 49; T-192/94 Moat v Commission [1993] ECR II-287, para. 48; Allo v Commission, cited above, para. 89

The Court considers that there is no need to increase, for reasons of equity, the amount of BFR 30000 which the Commission awarded the applicant during the administrative procedure by way of compensation for the nonmaterial damage suffered (paragraphs 234 to 240).

Operative part:

The applications are dismissed.