Case T‑138/14

Randa Chart

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European External Action Service (EEAS)

‛Non-contractual liability — Local agent employed by the European Union delegation in Egypt — Termination of contract — Failure of the delegation to provide to the Egyptian social security institution the termination of service certificate in respect of the agent and subsequently to remedy the irregularity in her situation in that regard — Limitation period — Continuous damage — Partial inadmissibility — Principle of sound administration — Reasonable time — Article 41 of the Charter of Fundamental Rights — Sufficiently serious breach of a legal rule conferring rights on individuals — Certain loss — Causal link’

Summary — Judgment of the General Court (Sixth Chamber), 16 December 2015

Non-contractual liability — Conditions — Causal link — Damage resulting from failure of an institution to act — Material damage caused to a former local agent by the failure of an EU delegation to carry out the administrative formalities required following the cessation of the duties of the person concerned — Determinant cause of the damage not residing in the conduct of the EU delegation — No direct causal link

See the text of the decision. (see paras 49, 50)

As regards non-contractual liability of the EU, the condition relating to the unlawfulness of the alleged conduct of the EU institution or body concerned requires that there be established a sufficiently serious breach of a rule of law intended to confer rights on individuals. In that regard, failure to comply with the national rules of a third country does not, in and of itself, constitute an infringement of EU law of such a kind as to give rise to the non-contractual liability of the European Union. On the other hand, where a failure to comply with the national rules of a third country constitutes, at the same time, an infringement of a rule of EU law, and in particular an infringement of a general principle of EU law, the Union may incur non-contractual liability. Thus, where an EU delegation fails to comply with the law of a third country concerning the issuing of termination of service certificates for its staff, there is an infringement of the principle of sound administration within the meaning of Article 41 of the Charter of Fundamental Rights of the European Union, and, in particular, of the principle that decisions must be adopted within a reasonable time. The principle of sound administration, where it constitutes the expression of a specific right such as the right to have one’s affairs handled impartially, fairly and within a reasonable time, as provided for in Article 41 of the Charter of Fundamental Rights, must be regarded as a rule of EU law whose purpose is to confer rights on individuals. Furthermore, the institutions, bodies, offices and agencies of the European Union enjoy no margin of discretion in so far as concerns the observance, in any given case, of the principle of sound administration. Consequently, the finding of a simple infringement of that principle by an EU delegation is sufficient in itself to establish the existence of a sufficiently serious breach. (see paras 51, 108, 109, 113-115)

The Union will incur non-contractual liability only if the applicant has actually suffered real and certain loss. The requirement as to the existence of specific damage is satisfied if the damage is imminent and foreseeable with sufficient certainty, even if it cannot yet be precisely assessed. As regards damage of a continuous character, damage which is repeated over successive periods of time and which increases with the passage of time must be regarded as giving rise to a claim for compensation. That definition does not cover the material loss consisting in the administrative expenses and legal fees which a former local agent incurs in a Member State in connection with the renewal of his residence and work permits and the acquisition of the nationality of that State, by reason of the failure of an EU delegation to regularise his situation, after his resignation, in a third country, that failure having allegedly prevented the person concerned from returning to that country. Those expenses, albeit repeated on a number of occasions over several years, are instantaneous in nature in that they are incurred on the date on which each of the relevant administrative steps is taken and do not increase with the passage of time. Equally, damage consisting in travel expenses allegedly incurred by the person concerned in travelling to the third country where that EU delegation is established cannot be regarded as ongoing. By their very nature, such expenses arise as a matter of fact on the occasion of each journey and they do not increase with the passage of time. (see paras 52, 81, 82, 86)

As regards non-contractual liability of the EU, the condition that there be a causal link between the alleged conduct and the damage pleaded requires that the said damage be a sufficiently direct consequence of the conduct complained of, and that that conduct be the determinant cause of the damage, whereas there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation. In that regard, in cases where the conduct allegedly giving rise to the damage pleaded consists in refraining from taking action, it is particularly necessary to be certain that that damage was actually caused by the inaction complained of and could not have been caused by conduct separate from that alleged against the defendant institution. Thus, in the case of an action by a former local agent in respect of material damage suffered on account of the alleged failure of an EU delegation to regularise his position, after his resignation, with the local authorities, whilst that failure has had the effect of making that person unable to return to live and work in the State in which the EU delegation is established, a decision of that person to purchase an apartment in his Member State of residence and to enter into a mortgage loan for that purpose is, decisively, made of his own free will and is not the result of the conduct complained of. At very most, there may be an indirect causal link between that conduct and those decisions to purchase and to take out a loan. (see paras 53, 132, 133)