JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

16 July 1998

Case T-219/96

Y

v

European Parliament

‛Officials — Article 88 of the Staff Regulations — Suspension — Withholding of remuneration — Right to pension — Damages’

Full text in French II-1235

Application for:

first, reimbursement of the amount of the applicant's remuneration withheld from 1 November 1993 to 19 January 1996 and, second, an order against the European Parliament for an interim payment of BFR 3000000 in reparation of the damage resulting from breach of his pension rights.

Decision:

The Parliament shall reimburse to the applicant the amount withheld from his remuneration from 1 November 1993 to 19 January 1996. For the rest, application dismissed.

Abstract of the Judgment

The applicant has been an official of the European Parliament since 1987.

On 27 July 1993 the applicant was placed in custody pending trial following a charge of rape and indecent assault on a minor.

On 6 October 1993 the appointing authority decided, pursuant to Article 88 of the Regulations and Rules applicable to officials and other servants of the European Communities (the ‘Staff Regulations’), first, to suspend the applicant with immediate effect and, secondly, to withhold half of his basic salary as from 1 November 1993.

On 6 June 1994, the Court of First Instance, Brussels, sentenced the applicant to five years' deprivai of the exercise of certain civil and/or civic rights and two years' imprisonment (suspended as to that part of the sentence exceeding the time spent in custody pending trial). On 7 October 1994, the Court of Appeal, Brussels, dismissed the applicant's appeal as being out of time and therefore inadmissible.

The Disciplinary Board of the Parliament, by an opinion of 28 July 1995, proposed that the applicant be removed from his post without -his rights to a retirement pension being terminated. By decision of the appointing authority of 19 January 1996, the applicant was removed from his post and his rights to a retirement pension maintained.

On 5 March 1996, the applicant submitted a request under Article 90(1) of the Staff Regulations for reimbursement of the amounts wrongly withheld from his remuneration between 1 November 1993 and 19 January 1996 and, on 7 August 1996, he submitted a complaint under Article 90(2) of the Staff Regulations against the implied decision rejecting that request. By letter of 5 November 1996, the Secretary-General of the Parliament rejected that complaint.

Between 3 August 1994 and 22 April 1996, the applicant sent letters to the Parliament with a view to transferring his pension rights acquired in Germany into the Community system. By letter of 6 March 1997, the Parliament informed the German pensions office that the applicant had opted for payment of the amount of the sums withheld from his basic salary, a choice which entailed the loss of all the pension rights he had under the Community scheme.

Furthermore, on 4 June 1996, the applicant sent the Parliament a registered letter of protest, which he described as a complaint during the written procedure before the Court, in which he requested rectification of the detailed statement of his pension rights on the ground, inter alia, that the Communities' contribution to financing the pension scheme was not included in the statement sent to him on 1 April 1996.

The request for reimbursement of amounts withheld under Article 88 of the Staff Regulations from the applicant's remuneration

Plea alleging infringement of Article 88 of the Staff Regulations

The purpose of the third paragraph of Article 88 of the Staff Regulations is to prevent an official subject to disciplinary proceedings from being deprived of his remuneration for more than four months without his case being decided (paragraph 31).

See: T-549/93 D v Commission [1995] ECRSC II-43, para. 33

The period of four months laid down by the third paragraph of Article 88 of the Staff Regulations relates to the disciplinary decision as such, the decision to suspend the official and the simultaneous decision to withhold remuneration. As regards the decision to withhold remuneration, the third and fourth paragraphs of Article 88 expressly set out two pecuniary consequences if that period of four months is exceeded, namely payment of full remuneration and reimbursement of the amount of remuneration withheld over four months. It is clear from those paragraphs that those two consequences, which are distinct and cumulative, are the automatic result of the period of four months being exceeded and that, unlike the time-limits for adopting a disciplinary decision provided for in Article 7 of Annex IX to the Staff Regulations, which do not have to be observed, the period of four months provided for under Article 88 must be considered to be mandatory in the sense that the suspended official must automatically again receive his full remuneration (third paragraph) and is entitled to reimbursement of the amount of remuneration withheld (fourth paragraph) where no decision has been taken on his case within four months from the date when the decision to suspend him came into force. The mandatory nature of the four month time-limit is intended to ensure the security of the relevant official, who may not be deprived of part of his remuneration for too long (paragraphs 32 and 33).

See: D v Commission, cited above, para. 25

The period of four months also applies where the official concerned is the subject of criminal proceedings.

Article 88 of the Staff Regulations must be interpreted, in the light of its wording, context and ratio legis, as meaning that it requires the institution to take a final decision within four months of the final decision of the criminal court and that, if no decision is taken within that period, the official is entitled to receive again his full remuneration (third paragraph) and to reimbursement of the amount of remuneration withheld (fourth paragraph).

As the plea of infringement of Article 88 of the Staff Regulations is well founded in part, the Parliament must be ordered to reimburse the amount of the applicant's remuneration which was withheld.

Reparation

The applicant claims reparation of BFR 3000000 in respect of the damage incurred as a result of the fact that the Parliament failed, notwithstanding his application under Article 11(2) of Annex VIII to the Staff Regulations, to arrange for the transfer of his pension rights acquired in Germany to the Community's pension scheme. In his reply, the applicant further claims that the Parliament wrongly refuses to pay him the severance grant provided for in Article 12(c) of Annex VIII to the Staff Regulations.

Admissibility

The claim for compensation in respect of pension rights is dismissed as inadmissible because the application does not contain any particulars as to the existence or quantification of damage, or as to the causal link between the failure to transfer the German pension rights to the Community's pension scheme and the damage alleged (paragraph 52).

See: T-36/93 Ojlta v Commission [1995] ECRSC II-497, para. 130

The claim for compensation is also inadmissible as regards the severance grant provided for in Article 12(c) of Annex VIII to the Staff Regulations since no complaint was raised in that connection, even in summary form, in the application.

The action is also inadmissible for want of a proper pre-litigation procedure. First, under the system of remedies established by Articles 90 and 91 of the Staff Regulations and Article 179 of the Treaty, an action seeking compensation for damage caused not by an act adversely affecting an official the annulment of which is sought, but by various alleged wrongful acts and omissions on the part of the administration, must be preceded by a two-stage administrative procedure, failing which it will be inadmissible. That procedure must commence with the submission of a request within the meaning of Article 90(1) of the Staff Regulations calling upon the appointing authority to make good the alleged damage and continue with the submission of a complaint under Article 90(2) of the Staff Regulations against the decision rejecting that request. In this case, there was no two-stage pre-litigation procedure. Moreover, the action does not comply with the mie requiring consistency between the preliminary administrative complaint and the action before the Court. By virtue of that rule, the claims submitted to the Court must have the same subject-matter as those set out in the preliminary administrative complaint and must only contain grounds of challenge having the same basis as those raised in the complaint, failing which they will be inadmissible (paragraphs 56 to 58).

See: T-500/93 F v Court of Justice [1996] ECRSC II-977, paras 64 to 68

Operative part:

The Parliament shall reimburse the applicant the amounts withheld from his remuneration from 1 November 1993 to 19 January 1996. That sum shall be increased by default interest of 8% from 5 March 1996.

For the rest, the application is dismissed.