JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

1 February 2007

Case F-125/05

Vassilios Tsarnavas

v

Commission of the European Communities

(Officials – Promotion – Consideration of comparative merits of officials in different services – Application for damages – Admissibility – Reasonable period – Lawyers’ fees – Pre-litigation procedure – Non-material harm)

Application: brought under Articles 236 EC and 152 EA, in which Mr Tsarnavas seeks, first, annulment of the Commission decision of 1 April 2005, dismissing his application for damages of EUR 72 000 in respect of the material and non-material harm suffered as a result of irregularities or breaches of administrative duty committed by that institution in the 1998 and 1999 promotion exercises, and, secondly, an order for the Commission to pay the abovementioned compensation.

Held: The Commission is ordered to pay the applicant EUR 3 000 by way of compensation for the non-material harm. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay one third of the costs incurred by Mr Tsarnavas. Mr Tsarnavas is ordered to bear two thirds of his own costs.

Summary

1.      Officials – Actions – Time-limits – Claim for compensation addressed to an institution – Duty to act within a reasonable time

(Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90)

2.      Officials – Non-contractual liability of the institutions – Breach of administrative duty

1.      The onus is on officials or other staff to submit a claim for compensation from the Community for loss alleged to be attributable to the Community within a reasonable period from the time when they became aware of the situation of which they complain. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties. Account must also be taken of the point of reference provided by the limitation period of five years laid down for actions in non-contractual liability by Article 46 of the Statute of the Court of Justice.

In a case where an official complains of alleged irregularities or repeated breaches of administrative duty committed by his institution in different promotion exercises, the reasonableness of the period which the official concerned allowed to elapse before submitting a claim for compensation for material harm resulting from the fees and costs charged by his lawyer in respect of the various pre-litigation procedures commenced must be assessed in the light of each of those procedures.

That reasonableness must be assessed differently, however, with regard to material harm resulting from the state of uncertainty and anxiety in which he claims to have been left for a long period as to whether he would be promoted in the promotion exercises in question, and from the loss of trust in his institution allegedly caused by a series of measures and actions which it took. Those must be the subject of an overall assessment and their lawfulness and effects can only be ascertained in aggregate.

(see paras 69-73, 81)

See:

T-161/00 Tsarnavas v Commission [2001] ECR-SC I‑A‑155 and II‑721, para. 37; T-144/02 Eagle and Others v Commission [2004] ECR II‑3381, paras 65 and 66

2.      A breach of sound administration against an official in different promotion procedures, which has resulted in his submitting various complaints that have proved to be at least partly justified, since they led in one case to an agreement between the parties, in another to the withdrawal of the disputed measure, and in a third to a judgment of the Community judicature annulling the measure in question, constitutes a breach of administrative duty which has the effect of delaying the progress of the promotion exercises concerned for the official in question, as well as causing him uncertainty and anxiety as to his professional future, warranting the award of compensation for non-material harm.

The fact that the applicant subsequently retired on the ground of invalidity does not eliminate that harm, which was suffered as a result of the administration’s conduct in connection with the official’s possible promotion in earlier exercises.

(see paras 99-100)