JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

21 February 2008

Case F-4/07

Eleni-Eleftheria Skoulidi

v

Commission of the European Communities

(Civil service – Officials – Exchanges of officials between the Commission and the Member States – Making available an EU official to the Greek administration – Refusal – Action for damages – Non-pecuniary loss – Pre-litigation procedure – Admissibility – Substantive conditions giving rise to the non-contractual liability of the Community)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Skoulidi seeks compensation for the non-pecuniary damage which she suffered as a result of the decision of the Director-General of the Commission’s Personnel and Administration Directorate-General, acting as the appointing authority, of 28 March 2006, refusing to allow her secondment to the Greek Ministry of National Education and Religious Affairs under the Scheme of Exchanges of officials between the Commission and the Member States.

Held: The action is dismissed. Each party is to pay its own costs.

Summary

1.      Officials – Actions – Actions for damages – Independent of actions for annulment

(Staff Regulations, Arts 90 and 91)

2.      Officials – Actions – Actions for damages – Pre-litigation procedure

(Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Actions for damages – Period allowed for commencing proceedings

(Staff Regulations, Arts 90 and 91)

4.      Officials – Equal treatment – Limits

5.      Procedure – Application initiating proceedings – Action for compensation for damage caused by a Community institution – Application for compensation for non-pecuniary damage

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

1.       An action for annulment and an action for damages are independent remedies and the person concerned is at liberty to choose either one or the other, or both together. Consequently, where a decision has been taken which adversely affects an official, he is entitled, without seeking annulment of the decision in question, to bring an action based on the alleged unlawfulness of the decision with the sole purpose of obtaining compensation for the damage which he claims that the decision caused him.

(see paras 49, 50)

See:

9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, paras 10 and 11

T-27/90 Latham v Commission [1991] ECR II‑35, para. 36; T-59/96 Burban v Parliament [1997] ECR-SC I‑A‑109 and II‑331, para. 25; T-136/03 Schochaert v Council [2004] ECR-SC I‑A‑215 and II‑957, para. 24; T-249/04 Combescot v Commission [2007] ECR-SC I‑A‑0000, currently the subject of an appeal before the Court, Case C‑525/07 P, para. 30

F-85/06 Bellantone v Court of Auditors [2007] ECR-SC I-A-0000, para. 80

2.      The pre-litigation procedure differs according to whether the damage for which reparation is sought results from a decision having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision; in the first case it is for the person concerned to submit to the appointing authority, within the prescribed time-limit, a complaint directed against the decision in question, and to make claims for compensation either in that complaint or, for the first time, in the application, while in the second case, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request.

An official adversely affected by a decision must use the complaints procedure provided for in Article 90(2) of the Staff Regulations not just where he intends to seek annulment of the decision adversely affecting him, but also where, in an action solely for damages, he seeks only compensation for the damage which that decision allegedly caused him .

(see paras 56, 66)

See:

T-14/91 Weyrich v Commission [1991] ECR II‑235, paras 32 and 34; T-36/93 Ojha v Commission [1995] ECR-SC I‑A‑161 and II‑497, para. 117; T-500/93 Y v Court of Justice [1996] ECR-SC I‑A‑335 and II‑977, para. 64; T-15/96 Liao v Council [1997] ECR-SC I‑A‑329 and II‑897, para. 57; T-11/01 Mascetti v Commission [2003] ECR-SC I‑A‑117 and II‑579, para. 33

F-27/05 Le Maire v Commission [2006] ECR-SC I‑A‑1‑47 and II‑A‑1‑159, para. 36; F-23/05 Giraudy v Commission [2007] ECR‑SC I-A-0000, para. 69; F-87/06 Manté v Council [2007] ECR‑SC I-A-0000, para. 19

3.      An official wishing to bring an action for damages, in relation to both material damage and non-pecuniary damage, based on the alleged unlawfulness of an act adversely affecting him must begin the pre-litigation procedure within three months of being notified of that act or of the date on which it came to his knowledge.

(see para. 70)

4.      The principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party, since such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’. Consequently, an official may not rely on an unlawful decision to allege an infringement of the principle of equal treatment. That applies not just for actions for annulment, but also for actions for damages.

(see para. 81)

See:

T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, para. 77

5.      An application seeking compensation for damage allegedly caused by a Community institution, partly by an unlawful decision and partly by the institution’s unlawful conduct, must state what part of the amount of compensation sought by the applicant relates to the institution’s unlawful conduct and what part corresponds to the unlawfulness of the act adversely affecting him. Thus, it is for the applicant to specify the nature of the alleged non-pecuniary damage and to quantify it, even approximately, separating the damage based on the Community institution’s decision and the damage based on its unlawful conduct, so that the Tribunal is able to assess the extent and nature of that damage.

(see para. 82)

See:

F-95/05 N v Commission [2007] ECR-SC I-A-0000, para. 91