JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 October 1995

Joined Cases T-39/93 and T-553/93

Michael Baltsavias

v

Commission of the European Communities

‛Officials — Personal file — Duty to provide assistance — Nonmaterial damage’

Full text in French II-695

Application for:

annulment of the decisions of the Commission of 1 June 1992 and 3 March 1993, concerning the keeping of the applicant's personal file and certain measures of assistance relating to him and for an order that the Commission should pay damages for the harm which the applicant considers he has suffered as a result of the existence of a parallel file.

Decision:

Annulment of the decisions of the Commission of 1 June 1992 and 3 March 1993 in so far as they reject the applicant's request for certain documents concerning his administrative status and reports relating to his ability, efficiency and conduct to be included in his personal file. Order that the Commission pay the applicant the sum of BFR 100000 as compensation for the nonmaterial damage he has suffered. Remainder of the application dismissed.

Abstract of the Judgment

On 7 November 1991 the applicant discovered that for nearly ten years there had existed within the Commission's translation department a parallel file containing documents concerning his administrative status, in addition to his official personal file.

On 8 November 1991 the applicant consulted that parallel file which contained, inter alia, a note of 1 June 1988 accusing him of hacking into a computer, and a note of 1 July 1988 containing various negative assessments of his reliability as a computer specialist, his ability to follow instructions given by his superiors and his capacity for taking on the responsibilities inherent in his duties.

By letter of 15 November 1991, the applicant asked the Commission to send him photocopies of a number of documents included in the parallel file. He also asked for all documents concerning his administrative status to be added to his personal file. Subsequently, copies of documents in the parallel file were sent to the applicant.

Between 13 December 1991 and 15 January 1992, the Directorate-General for Personnel and Administration of the Commission destroyed 17 sacks of documents concerning staff in the translation department, including, so the Commission claims, the applicant's parallel file.

On 7 February 1992 the applicant submitted a request concerning the parallel file under Article 90(1) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

On 20 February 1992 tlie Director-General of the Translation Department sent the applicant a letter totally exonerating him.

By letter of 1 June 1992, the Commission informed the applicant that it considered that his request of 7 February 1992 had received a favourable answer and that it was going to file it under ‘No further action’ since the parallel file had been destroyed.

On 31 August 1992 the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the reply to his request of 7 February 1992. In that complaint, the applicant made several requests concerning the parallel file.

The Commission took a decision on that complaint on 3 March 1993. In its letter, the Commission rejected most of the requests made by the applicant in his complaint of 31 August 1992.

Substance

Claims for annulment

In essence, the applicant puts forward three pleas in law in support of his claims, the first alleging breach of Article 26 of the Staff Regulations, the second, breach of Article 24 of the Staff Regulations and the third, raised in the reply, alleging contravention of the Commission's decision of 7 July 1986 concerning classified documents and the security measures applicable to those documents.

The first plea in law: breach of Article 26 of the Staff Regulations

It is settled case-law that the purpose of Article 26 of the Staff Regulations is to guarantee an official's right to a fair hearing, by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his ability, efficiency or conduct which are not included in his personal file (paragraph 37).

See: 233/85 Bonino v Commission [1987] ECR 739, para. 11 ; T-l09/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 68

It follows that a personal file is by nature unique, which precludes the existence in any form whatsoever of any other set of documents of the sort referred to (paragraph 38).

The requirement laid down by Article 26 of the Staff Regulations that an official's personal file should include all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct is clear and unconditional (paragraph 39).

Some of the documents in the applicant's parallel file contained assessments of his conduct, the way in which he carried out his duties, his relations with his superiors and also his appreciation of his responsibilities in performing his duties (paragraph 40).

All those evaluations fall within the scope of Article 26 of the Staff Regulations. Consequently, the Commission ought to have included those documents in the applicant's personal file and given him the opportunity to make comments about them (paragraph 41).

In this case, the Commission was a fortiori bound to comply with that requirement since the applicant had asked for the documents at issue to be added to his personal file and some of them contained allegations likely to affect his personal and professional reputation (paragraph 42).

It is contrary to the requirements of transparency and legal certainty in relations between officials and the Community administration for the latter to cause documents mentioned in Article 26 of the Staff Regulations to disappear. If that were not so, the administration would be free to keep parallel files and to escape any legal consequences arising therefrom simply by destroying them (paragraph 43).

The existence of a parallel file containing documents of the kind described above constitutes a breach of Article 26 of the Staff Regulations and the Commission was not entitled to destroy those documents (paragraph 44).

As regards the Commission's argument that the applicant no longer has an interest in bringing proceedings, since the parallel file relating to him has been destroyed and he has been exonerated, it should be noted that the breach found to have existed cannot be effaced by either the mere destruction of such a file or the letter sent to the applicant (paragraph 45).

The applicant is not entitled to have the minutes testifying to the destruction of 17 sacks of documents added to his personal file. The minutes at issue do not refer to the applicant, his parallel file or its destruction. Accordingly, they do not fall within the ambit of Article 26 of the Staff Regulations (paragraphs 46 and 47).

The applicant is entitled to request that the Commission add to his personal file copies of documents within the scope of Article 26 which were in the parallel file and of which the applicant has kept copies (paragraph 50).

The second plea in law: breach of Article 24 of the Staff Regulations

According to settled case-law, although that provision is intended primarily to protect Community officials against attacks and maltreatment by third parties, the duty to provide assistance laid down in Article 24 also exists where the perpetrator of the acts referred to by that provision is another Community official (paragraph 58).

See: 18/78 Mrs V. v Commission [1979] ECR 2093, para. 15; T-5/92 Tallarico v Parliament [1993] BCR II-477, para. 30

With regard to the measures to be adopted in a situation covered by Article 24 of the Staff Regulations, it is settled case-law that whilst the administration enjoys a discretion, subject to review by the Community judicature, regarding the choice of ways and means for implementing Article 24 of the Staff Regulations, it is required by that article to take all necessary steps to restore the good name of the official whose professional integrity has been questioned (paragraph 59).

See: C-137/88 Schneemann and Others v Commission [1990] ECR I-369, para. 9; 128/75 Mr N. v Commission [1976] ECR 1567, para. 10

The question is therefore whether the steps taken by the Commission were appropriate with a view to restoring the applicant's personal and professional good name or whether the Commission ought not to have taken other steps, such as those requested by the applicant (paragraph 60).

No administrative action was taken following the note of 1 June 1988. On 20 February 1992 the Director-General of the Translation Department declared that the accusations at issue were unfounded and exonerated the applicant. Those two statements were measures both adequate to restore the applicant's good name and proportionate to the content and number of readers of the notes in dispute, which had never been publicly circulated either inside or outside the institution (paragraph 61).

The applications for a number of administrative measures to be taken under Article 24 of the Staff Regulations are not well founded (paragraph 62).

The third plea in law: contravention of the Commission's decision of 7 July 1986 concerning classified documents and the security measures applicable thereto

In accordance with the first paragraph of Article 19 of the Protocol on the Statute of the Court of Justice of the EC, applicable to the Court of First Instance by virtue of the first paragraph of Article 46 of the EC Statute, and with Article 44(1) of the Rules of Procedure of the Court of First Instance, an application must contain a summary of the pleas in law on which it is based. Similarly, Article 48(2) of the Rules of Procedure of the Court of First Instance provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. In the case in point, it was only at the reply stage that the applicant put forward this plea, which was not stated in the application and bears no relation to the two previous pleas. Accordingly, it must be dismissed as out of time (paragraph 72).

See: C-330/88 Grifoni v EAEC [1991) ECR I-1045. para. 18; T-16/91 Rendo and Others v Commission [1992] ECR II-2417, paras 130 and 131

Moreover, that plea was not covered by the pre-litigation procedure. According to settled case-law, in staff actions an official may not submit to the Community judicature claims the subject-matter of which differs from those contained in the complaint (paragraph 73).

See: 242/85 Geist v Commission [1987] ECR 2181, para. 9; 23/87 and 24/87 Attinger and Virgili v Parliament [1988] ECR 4395, para. 15; T-l/90 Casariegos Commission [1991] ECR II-143, para. 47

Claims for compensation

It is settled case-law that the Community can only be held liable to pay damages if a number of conditions are satisfied as regards the illegality of the conduct of the institutions complained of, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (paragraph 80).

See: T-82/91 Latham v Commission [1994] ECRSC II-61, para. 72; T-3/92 Latham v Commission [1994] ECRSC II-83, para. 63

So far as concerns the claims for compensation for material damage, in his pleadings the applicant has merely stated that he was transferred several times without explaining how those new postings had financially disadvantageous consequences. The applicant has not, therefore, adduced evidence to support the conclusion that there was any material damage (paragraph 82).

As regards the claims for compensation for nonmaterial damage, it is settled case-law that an official whose personal file is irregular and incomplete thereby suffers nonmaterial damage as a result of being put in an uncertain and anxious state of mind with regard to his professional future (paragraph 83).

See: 61/76 Geist v Commission [1977] ECR 1419, para. 49; 140/87 Bevan v Commission [1989] ECR 701; T-73/89 Barbi v Commission [1990] ECR II-619. para. 41; T-20/89 RV Moritz v Commission [1993] ECR II-1423. para 46

The existence in a parallel file of documents containing negative statements about the applicant's honesty, ability, responsibility and behaviour towards his superiors, when he has had no opportunity to defend himself, is capable of causing him considerable further anxiety. The applicant may reasonably think — even if he has no proof — that administrative decisions concerning him, in particular the various reassignments against his will and his staff reports, may have been influenced to his detriment by the documents in question, which he did not know existed. In the same way, he may well think that other officials who may have had access to those documents have received a negative image of him. Those suspicions are liable to create in the applicant feelings of insecurity and injustice which may continue in the future and which will not be dispelled by declarations of his innocence. The facts set out above constitute nonmaterial damage suffered by the applicant (paragraphs 84 and 85).

Although the annulment of an administrative act challenged by an official constitutes appropriate and, in principle, sufficient reparation for any nonmaterial harm he may have suffered on account of the act annulled, in the present case the nonmaterial damage established above cannot be obliterated by the partial annulment of the contested decisions of the Commission. Accordingly, the Court considers an award of BFR 100000 to be appropriate compensation, having regard to both the seriousness of the facts and the length of time the breach lasted (paragraph 86).

See: T-37/89 Hanning v Parliament [1990] ECR II-463, para. 83

Operative part:

1. The decisions of the Commission of 1 June 1992 and 3 March 1993 are annulled in so far as they reject the applicant's request for certain documents concerning his administrative status and reports relating to his ability, efficiency and conduct to be included in his personal file.

2. The Commission is ordered to pay the applicant the sum of BFR 100000 by way of compensation for the nonmaterial damage he has suffered.