ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

13 July 2010

Case F‑103/09

John Allen and Others

v

European Commission

(Civil service — Staff employed at the JET project — Actions for damages — Reasonable period — Out of time)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty in accordance with Article 106a thereof, in which Mr Allen and 113 other applicants primarily seek an order that the Commission compensate them for the material harm which they suffered as a result of the fact that they were not recruited under contracts as temporary servants during the time they worked at the Joint European Torus (JET) Joint Undertaking.

Held: The application is dismissed as inadmissible. The applicant and the 110 other applicants whose names have been retained on the list of applicants are directed to pay all the costs.

Summary

1.      Officials — Actions — Action for damages — Application for annulment of the pre-litigation decision rejecting the request for compensation — Application not independent of the claim for damages

(Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Time-limits — Request for compensation addressed to an institution — Duty to act within a reasonable time — Criteria for assessment

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

1.      An institution’s rejection of a request for compensation and the rejection of the complaint directed against the rejection of the request for compensation are an integral part of the administrative procedure prior to the bringing of an action for liability before the Tribunal, and, consequently, the claims for annulment directed against those decisions cannot be assessed independently of the claims for damages. The only effect of those measures by which the institution adopts a position during the pre-litigation stage is to enable the party who claims to have suffered loss to file an application for damages before the Tribunal.

(see para. 22)

See:

T‑389/02 Sandini v Court of Justice [2004] ECR‑SC I‑A‑295 and II‑1339, para. 56

2.      It is for officials or other servants to bring before the institution any request for compensation payable by the European Union for loss alleged to be attributable to the institution within a reasonable period, running from the point in time when they became aware of the situation they complain of.

There is an obligation to act within a reasonable period in all cases where, in the absence of any written rule, the principles of legal certainty or protection of legitimate expectations preclude European Union institutions and natural persons from being free to act without any time constraints, thereby engendering a risk, amongst other things, of undermining the stability of legal positions already acquired.

Although there is no time-limit prescribed by a written instrument for actions for damages based on a wrongful failure to adopt a decision, it has been consistently held that in the absence of any indication in the written instruments as to the time-limit for bringing an action in respect of a given category of proceedings, it is for the European Union courts to fill that gap in the system of remedies. To do so, the court must weigh the applicant’s entitlement to effective protection by the courts, which is one of the general principles of European Union law and implies that those subject to its jurisdiction must have a sufficient period of time available to them to assess the lawfulness of the act adversely affecting them or about which they have submitted a complaint and if necessary prepare their case, against the need for legal certainty which requires that, after a certain time, measures taken by European Union bodies become definitive.

The reconciliation of those various interests requires that, in the absence of any written rule, disputes should be brought before the court within a reasonable period. The reasonableness of a period is to be assessed in the light of the circumstances specific to each case and, in particular, what is at stake in the case for the person concerned, its complexity and the conduct of the parties. In this connection, it is also appropriate to have regard, as a comparative point of reference, to 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, although that limitation period does not apply in disputes between the European Union and its servants.

The obligation to act within a reasonable period and the application by analogy of the five-year limitation period provided for in Article 46 of the Statute of the Court are specifically intended to fill a gap in the law and to prevent it from being possible to bring an action for damages indefinitely, and thereby undermine the stability of legal positions already acquired. The length of such a limitation period is, moreover, such as to ensure a fair balance between the requirements of legal certainty and the entitlement of applicants to effective protection by the courts, under conditions comparable to those applied to any creditor of the European Union. The limitation period also enables proceedings on non-contractual liability in staff cases regarding a wrongful failure to adopt a decision to be harmonised with general proceedings on non-contractual liability, which are subject to a limitation period of five years under Article 46 of the Statute of the Court of Justice.

(see paras 33-38, 42, 48)

See:

T‑202/97 Koopman v Commission [1998] ECR‑SC I‑A‑163 and II‑511, paras 24 and 25; T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, paras 51-53; T‑281/01 Huygens v Commission [2004] ECR‑SC I‑A‑203 and II‑903, paras 46 and 47; T‑144/02 Eagle and Others v Commission [2004] ECR II‑3381, paras 57, 60, 65, 66 and 71; T‑114/08 P Marcuccio v Commission [2009] ECR‑SC I‑B‑1‑53 and II‑B‑1‑313, para. 25

order of 23 March 2010 in T‑16/09 P Marcuccio v Commission, paras 33 and 34

F‑125/05 Tsarnavas v Commission [2007] ECR‑SC I‑A‑1‑43 and II‑A‑1‑231, para. 71