JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
7 February 2007 (*)
(Officials – Action for annulment – Career development report – Total and permanent invalidity – No longer any legal interest in bringing proceedings – No need to adjudicate – Actions for damages – Inadmissibility)
In Case T‑175/04,
Donal Gordon, residing in Brussels (Belgium), represented initially by M. Byrne, solicitor, and subsequently by J. Sambon and P.-P. Van Gehuchten and P. Reyniers, lawyers,
applicant,
v
Commission of the European Communities, represented by J. Currall and H. Krämer, acting as Agents,
defendant,
ACTION, first, for annulment of the decision of 11 December 2003 rejecting the complaint concerning the decision of 28 April 2003 confirming the applicant’s career development report for the period from 1 July 2001 to 31 December 2002, and, secondly, for compensation for the damage suffered by the applicant,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 31 May 2006,
gives the following
Judgment
Legal framework
1 Under Article 43 of the Staff Regulations of the European Communities in the version applicable to the present case (‘the Staff Regulations’), the ability, efficiency, and conduct in the service of each official, with the exception of those in grades A 1 or A 2, is to be the subject of a periodical report made at least once every two years as provided for by each institution in accordance with Article 110 of the Staff Regulations.
2 On 26 April 2002 the Commission adopted a decision on general provisions for implementing Article 43 of the Staff Regulations (‘GIP 43’). This introduced a new system of reporting.
3 Under the transitional rule set out in Article 4(1) of GIP 43, for the first reporting period under the new system the career development report provided for by Article 6 of GIP 43 (‘the CDR’) covers the period from 1 July 2001 to 31 December 2002.
4 The appraisal and promotion exercises are connected in so far as, in accordance with Article 5(3) of the General Provisions for implementing Article 45 of the Staff Regulations adopted by the Commission on 26 April 2002, an official is, in principle, promoted when the total of his merit points generated by the CDR marking and the priority points awarded in the promotion procedure accumulated in the course of one or more exercises exceeds the ‘promotion threshold’.
5 In that context, Article 6(1) of the General Provisions for implementing Article 45 of the Staff Regulations provides that, for Directorates-General whose average merit points for a given grade exceed by more than one point the average concerned for the Commission, the quota of priority points is to be reduced by an amount corresponding to the excess, unless the Directorates-General give valid reasons for the excess.
6 The Commission communication published in Informations Administratives 99-2002 of 3 December 2002 under the title ‘(Transitional) Staff Appraisal Exercise 2001-02’ (‘Transitional Guide’) invites the Directorates-General to appraise their staff in line with a target average of 14 out of 20 and observes that Directorates-General that achieve an average above 15 for a particular grade will be penalised by a reduction in the quota of priority points unless the Directorate-General in question gives valid reasons for exceeding the average.
Background to the dispute
7 At the time when the action was lodged, the applicant was an official in grade LA 5 employed in the Directorate-General for Translation.
8 On the evening of 11 March 2003 he received his CDR for the period from 1 July 2001 to 31 December 2002. On the morning of 12 March 2003 he informed the countersigning officer of his wish to hold a dialogue with him pursuant to Article 7(5) of GIP 43. He then took two and a half days’ leave in the afternoon. On the same day the countersigning officer confirmed the applicant’s CDR after noting on it that ‘it was not possible to arrange [the dialogue requested by the applicant] as the person concerned left on leave in the afternoon of 12 [March] 2003’.
9 On 25 March 2003 the applicant held a dialogue with the countersigning officer. On the same day, at the applicant’s request, the matter was referred to the Joint Evaluation Committee (‘the JEC’). On 11 April 2003 the JEC delivered its opinion. That opinion states ‘[the JEC] finds that the formal dialogue has not taken place [and] consequently … recommends that the appeal assessor ask the countersigning officer to hold the dialogue’. Another meeting was held between the applicant and the countersigning officer on 14 April 2003.
10 On 25 April 2003 a meeting took place between the applicant and the appeal assessor. The appeal assessor gave his decision on 28 April 2003. He confirmed the applicant’s CDR, stating that ‘it was noted that [the applicant] had requested that a formal dialogue be held on 12 March [2003], but it did not take place because of the leave requested by the person concerned … and taking account of the original deadline for finalisation of the exercise (15 March 2003)’ and that ‘two meetings subsequently took place with the countersigning officer on 25 March 2003 and 14 April 2003’. In a note of the same date, the appeal assessor transmitted his decision to the chairman of the JEC. In that note, he stated the reasons why the formal dialogue requested by the applicant could not be organised and added that ‘the comments of the countersigning officer were made … taking account of those points, the reasons stated by the person concerned and after hearing [the applicant’s] immediate superior’. He also mentioned that ‘two formal meetings had been organised on 25 March 2003 and 14 April 2003 with the countersigning officer’.
11 On 25 July 2003 the applicant lodged a complaint pursuant to Article 90 of the Staff Regulations against the decision of 28 April 2003 confirming his CDR. By decision of 11 December 2003, which was notified to the applicant on 2 February 2004, the appointing authority rejected the applicant’s complaint (‘the contested decision’).
12 Following the findings of the invalidity committee of 1 February 2005, stating that the applicant ‘was suffering from total permanent disability and could no longer perform the duties corresponding to a post in his grade’, by decision of 15 February 2005 the appointing authority decided that the applicant ‘was to be retired with an invalidity allowance in accordance with the provisions of the [third] paragraph … of Article 78 of the Staff Regulations’. The decision took effect on 28 February 2005.
Procedure and forms of order sought
13 The applicant brought the present action by application lodged at the Registry of the Court of First Instance on 7 May 2004.
14 On 1 March 2005, the Commission lodged a request for an order that there is no need to adjudicate on the application for annulment because the applicant was retired on the ground of total permanent invalidity. It also disputed the admissibility of the claim for damages. The applicant lodged his observations on that request on 6 April 2005.
15 By order of the Court of 10 June 2005, the request for an order that there is no need to adjudicate was joined to the substance of the case and costs were reserved.
16 By document lodged at the Registry of the Court on 6 October 2005, the applicant requested the Court to reopen the written procedure or accept new evidence. The Commission did not lodge observations on this application. The observations and evidence submitted by the applicant in support of his request were added to the file temporarily and the decision on admissibility reserved.
17 Upon hearing the Report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure. As a measure of organisation of the procedure, the Commission was requested to reply to certain written questions and to produce certain documents. The Commission complied with those requests within the specified period.
18 The parties presented oral argument and answered questions put to them by the Court at the hearing on 31 May 2006.
19 On this occasion, it was decided, before closing the oral procedure, to allow the applicant to submit observations concerning the number of pages translated by him during the period covered by the contested CDR. The applicant submitted his observations within the period laid down and the Commission lodged its observations on that reply on 14 June 2006.
20 By decision of the President of the Third Chamber of the Court, the oral procedure was closed.
21 The applicant claims, in essence, that the Court should:
– dismiss the application for an order that there is no need to adjudicate;
– declare the action for damages admissible;
– annul the contested decision;
– declare GIP 43 or the relevant provisions currently in force unlawful to the extent that reports are finalised before all appeals brought by officials in the same grade in the same unit have been processed;
– declare the Transitional Guide or the provisions currently in force unlawful in that they set a target average mark;
– award the applicant damages in compensation for the damage to his career, to his health and to his well-being;
– order the Commission to pay the costs.
22 In his reply, the applicant also claims that the Court should:
– declare GIP 43 or the provisions currently in force unlawful at least in that one and a half merit points are deducted in the contested CDR by reason of leave on personal grounds taken during the reference period;
– order that the document containing the minutes of the meetings of the JEC, the two best CDRs and the two worst CDRs of the officials in his unit, be produced, together with the document containing the official quantitative standards of the translation units.
23 The Commission contends that the Court should:
– declare that there is no need to adjudicate on the application for annulment;
– dismiss the application as inadmissible;
– in the alternative, dismiss the action as unfounded and dismiss the application for measures of inquiry;
– make an appropriate order for costs.
Law
The claim for annulment
Arguments of the parties
24 The Commission submits that an official who has been retired has an interest in obtaining the annulment of decisions which affect him adversely only if he still has a career before him (Case T‑20/89 Moritz v Commission [1990] ECR II‑769, Case T-82/91 Latham v Commission [1994] ECR-SC I-A-15 and II-61, and Joined Cases T-112/96 and T‑115/96 Séché v Commission [1999] ECR-SC I-A-115 and II-623). It thus contends that an official in such a situation no longer has an interest in contesting a decision finalising his CDR as, according to the case‑law, the only purpose of the latter is to provide a basis for future decisions concerning his career (Order of the Court in Case T-97/94 N v Commission [1998] ECR-SC I‑A‑621 and ECR II‑1879, paragraph 26). It observes that this also applies to compulsory retirement on the ground of invalidity (Order of the Court in Case T-286/94 Z v ESC [1995] ECR-SC I-A-217 and II-657).
25 The applicant asserts that, as the principle of access to the courts is a fundamental right, exceptions to that principle must be construed and applied strictly. He observes that his retirement was compulsory and that it occurred after the application was lodged. He adds that this was a matter of provisional termination of service because the invalidity committee found that he should undergo a further medical examination after two years. He observes that, pursuant to Article 14 of Annex VIII to the Staff Regulations, an official who ceases to satisfy the requirements for payment of the invalidity allowance has the right to be reinstated in the service. Consequently he takes the view that his career could continue if the invalidity committee so decides after two years or if he himself asks to be reinstated.
26 With regard to the orders of the Court in Z v ESC and N v Commission, cited above, the applicant maintains that, unlike the applicants in those cases, he was still in active service at the time of lodging his application. Regarding Moritz v Commission, Latham v Commission and Séché v Commission, he asserts that the situation is different because in those cases the applicants retired because of their age and not temporary invalidity, so that their termination of service was permanent. He also notes that in those cases the applications were declared partially admissible to enable the applicants to claim damages. He adds that in Case T-112/94 Moat v Commission [1995] ECR-SC I-A-37 and II-135, the action was declared admissible because of the dubious nature of the decision at issue.
Findings of the Court
27 It should be recalled, first, that while a legal interest in bringing proceedings, to which the admissibility of an action is subject, is to be appraised at the time when that action is brought (Case 14/63 Forges de Clabecq v High Authority [1963] ECR 357, and order in N v Commission, paragraph 23), this cannot prevent the Court from finding that there is no need to adjudicate on the action where the applicant who initially had a legal interest lost all personal interest in the annulment of the contested decision on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision (T‑159/98 Torre and Others v Commission [2001] ECR-SC I-A-83 and II‑395, paragraph 30, Case T‑105/03 Dionyssopoulou v Council [2005] ECR II-0000, paragraph 18, and Case T‑274/04 Rounis v Commission [2005] ECR II-0000, paragraphs 21 and 22). In addition, according to settled case-law, an applicant must show a vested and present interest in the annulment of the contested act such that, if the interest which an applicant claims concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain (Case T-138/89 NBV and NVB v Commission [1992] ECR II‑2181, paragraph 33; Case T‑141/03 Sniace v Commission [2005] ECR II‑1197, paragraph 26, and Order of the Court in Case T-28/02 First Data and Others v Commission [2005] ECR II-4119, paragraphs 42 and 43).
28 Secondly, in relation to actions for annulment of a CDR, it must be pointed out that a CDR is an internal document, the primary function of which is to provide the administration with periodic information on the performance of their duties by officials (see, to that effect, Joined Cases 6/79 and 97/79 Grassi v Council [1980] ECR 2141, paragraph 20, and Case T‑59/96 Burban v Parliament [1997] ECR-SC I-A-109 and II‑331, paragraph 73) and which, for the official himself, therefore plays an important part in the progress of his career, mainly as regards transfer and promotion. It follows that the CRD in principle only affects the interest of the person assessed in so far as that person still has a career ahead of him, that is, until termination of his service. As a result, after termination of his service, the official does not have any interest in bringing or pursuing an action challenging his CDR, save to establish the existence of a particular fact demonstrating a current, personal interest in obtaining annulment (see, to that effect, the order in N v Commission, paragraph 26, and Dionyssopoulou v Council, cited above, paragraph 20).
29 In the present case, the Commission contends that, having retired pursuant to Article 78 of the Staff Regulations on the ground of total permanent invalidity the applicant terminated his service permanently, and, in accordance with case-law cited above, lost his interest in pursuing his action. The applicant takes the view, on the other hand, that that case-law does not apply to the present case for two reasons. First, in this case, there was no permanent termination of service because, according to Article 14 of Annex VIII to the Staff Regulations, he can be reinstated in the service as soon as his state of health allows. Secondly, his retirement was compulsory, occurring after the present action was lodged. He observes that, in those circumstances, his right to judicial protection should prevail over other considerations and allow him to secure a judgment on the lawfulness of the contested CDR. He thus takes the view that he still has a current, personal interest in the annulment of the CDR.
30 Regarding, first, the question of the permanent nature of the termination of service in the event of retirement on the ground of total permanent invalidity, it must be pointed out that, even if Article 14 of Annex VIII to the Staff Regulations provides for the possibility of reinstating an official receiving an invalidity allowance, the fact of total permanent invalidity was intended by the legislature to bring the career of the official in question to an end. Therefore, Article 53 of the Staff Regulations provides that ‘[a]n official to whom the Invalidity Committee finds that the provisions of Article 78 apply shall automatically be retired on the last day of the month in which the appointing authority recognises his permanent incapacity to perform his duties’. In turn, all types of retirement, including that resulting from total permanent invalidity, are covered by the list of causes of permanent termination of service set out in Article 47 of the Staff Regulations. Invalidity of this kind is therefore regarded by the legislature, as regards whether or not the termination of service which this entails is permanent, in the same way as other causes of termination of service, the permanent nature of which is not in doubt, such as resignation, dismissal for incompetence or removal from post.
31 It follows that, according to the scheme of the Staff Regulations, retirement on the ground of total permanent invalidity within the meaning of Articles 53 and 78 is regarded, in principle, as bringing the official’s career to an end. It can therefore be distinguished from sick leave, provided for under Article 59 of the Staff Regulations, which does not affect the continuity of the career of the official who is temporarily unable to carry out his duties.
32 The Court considers, therefore, that in accordance with the case-law referred to above, the applicant’s retirement pursuant to Article 78 of the Staff Regulations affects his interest in securing the annulment of the contested CDR inasmuch as his career within his institution was, in principle, permanently interrupted.
33 That conclusion is not undermined by the applicant’s argument regarding possible reinstatement in the service under Article 14 of Annex VIII to the Staff Regulations. It must be recalled that an applicant must show a vested and existing interest in the annulment of the contested act, and that if the interest which an applicant claims concerns a future legal situation he must demonstrate that the prejudice to that situation is already certain. However, it is clear that the applicant’s reinstatement in the service of the Commission is only a possibility, which, at the present time, may not materialise. Therefore, this is merely a hypothetical interest and thus does not suffice to warrant a finding that the applicant’s legal situation is affected by the fact of not annulling the contested CDR (see, to that effect, Case 204/85 Stroghili v Court of Auditors [1987] ECR 389, paragraph 11).
34 As regards, secondly, the fact that the applicant’s retirement was compulsory and took place after the present action was lodged, it should be pointed out, first of all, that the Court has already had occasion to rule that an official who has terminated his service on the ground of dismissal for incompetence or removal from his post, which has become permanent following a legal action, does not have a legal interest in the annulment of his staff report (order in N v Commission, paragraph 27, Joined Cases T-200/03 and T-313/03 V v Commission [2006] ECR-SC I-A-000 and II-0000, paragraph 184). It is clear from the case-law that whether or not termination of service is voluntary is irrelevant for the purposes of assessing the existence of a legal interest in bringing proceedings. Secondly, in respect of the time of retirement in relation to the date of lodging the action, it is clear from the case-law referred to in paragraph 27 above that the fact of losing the legal interest in bringing proceedings after an action has been lodged cannot prevent the Court from finding that there is no need to adjudicate on the action (Moritz v Commission, cited above, paragraph 16, Dionyssopoulou v Council, cited above, paragraph 18, and Rounis v Commission, cited above, paragraph 21).
35 In the light of the foregoing, it must be held that the amendment of the CDR sought by the applicant would not, in principle, have any impact on his career from 28 February 2005 onwards, the time when his career came to an end. It is therefore for the applicant to establish the existence of a particular fact demonstrating a current, personal interest in bringing annulment proceedings (order in N v Commission, paragraphs 26 and 27).
36 It must be pointed out that the applicant, in disputing the permanent nature of his termination of service, does not invoke any particular fact within the meaning of the order in N v Commission. He asserts, however, that his interest in seeking annulment of the contested CDR should be recognised in order to ensure protection of his right to effective judicial protection.
37 In that respect, it suffices to point out that the right to effective judicial protection entails the right to refer to the Court only those acts of the Community institutions which, in so far as they affect the applicant’s interests, affect him adversely (see, to that effect, the order of the Court of Justice of 1 October 2004 in Case C-379/03 P Pérez Escolar v Commission, not published in the ECR, paragraphs 41 and 42, and the order of the Court of First Instance in Case T-276/02 Forum 187 v Commission [2003] ECR II‑2075, paragraph 50). However, in the present case, it is clear that, because of his retirement, neither the contested decision nor the contested CDR, in so far as he has not been reinstated, affect the applicant adversely at the present time. It follows that, without having, at this stage, to rule on the relevance of the applicant’s argument if it were raised in support of a possible action in the event that the applicant were reinstated in the service, it must be observed that the right to effective judicial protection cannot confer on him a right to have the Court rule on the present application for annulment.
38 It follows from all of the above considerations that the applicant has not provided evidence of a vested and present interest in bringing proceedings. There is therefore no need to rule on the claim for annulment of the CDR at issue.
39 In relation to the claims for a declaration by the Court of unlawfulness of the GIP 43 and the Transitional Guide, or of the provisions currently in force, it should be observed that, as the applicant himself states, these claims amount to pleas of unlawfulness raised in the application for annulment. Accordingly, there is no need to make a ruling on this point.
The claim for damages
Arguments of the parties
40 The Commission submits that this claim is inadmissible for several reasons. First, it is not mentioned in the administrative complaint. Secondly, the application does not show why the annulment of the contested decision is not sufficient to remedy the harm allegedly suffered by the applicant. Finally, the claim does not meet the requirements of Article 44 of the Rules of Procedure of the Court of First Instance in so far as the application contains no argument in support of the claim, particularly with regard to the fault which is said to be the source of the harm, and no evidence of a causal connection between the alleged fault and the applicant’s ill health. On this point, the Commission asserts that the invalidity committee found that the applicant’s invalidity is not due to an occupational cause.
41 The applicant argues that, if his complaint did not refer to a claim for damages, that is because the damage is subsequent to the date of the complaint, as it arises from the fact that the promotion committee, which met after the complaint, was lodged, took the disputed CDR into account. Regarding the causal connection between the damage and the service-related fault, the applicant observes that, contrary to the Commission’s allegation, it is clear from the application that the damage caused to his career prospects arises from the fact that he was not eligible for priority points because his CDR awarded him insufficient points, and from the fact that the appeal system did not make it possible to remedy this injustice.
Findings of the Court
42 It should be recalled that, under Article 21 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, every application must contain the subject-matter of the dispute, the form of order sought and a brief statement of the pleas in law on which it is based. In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage. However, a claim for an unspecified form of damage is not sufficiently concrete and must therefore be regarded as inadmissible (Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975, paragraph 9; orders of the Court of First Instance in T-505/93 Osório v Commission [1994] ECR-SC I-A-179 and II‑581, paragraph 33, and order in Moat v Commission, paragraph 32).
43 In the present case, the applicant only claims damages in compensation for the damage to his career prospects, to his health and to his well-being, without calculating the amount and without providing sufficiently concrete evidence to allow an assessment of the extent of the damage. His application does not in fact contain any other information in this respect than the fact that ‘[t]he manifest error of assessment and misuse of powers by the countersigning officer caused severe damage to the applicant’s promotion prospects’ and that ‘[t]his has caused the applicant distress and ill health, compounding the damage to his career prospects’.
44 Even if the Court has previously accepted that, in special circumstances, it is not essential to specify the exact extent of the damage in the application and to state the amount of the compensation sought (Case T‑64/89 Automec v Commission [1990] ECR II‑367, paragraphs 75 to 77, and Case T‑37/89 Hanning v Parliament [1990] ECR II‑463, paragraph 82), it should be pointed out that, in the present case, the applicant has neither established nor invoked the existence of such circumstances (see, to that effect, the orders in Osório v Commission, paragraph 35, and order in Moat v Commission, paragraph 37).
45 In addition, in relation to the non-material damage, it should be pointed out that quite apart from the complete absence of any quantification of that damage, the applicant has not placed the Court in a position to assess the extent or character thereof. However, where compensation of non-material injury, whether as symbolic reparation or as true compensation, is sought, it is for the applicant to specify the nature of the non-material damage alleged in connection with the conduct of the Commission complained of and to quantify the whole of that damage, even if approximately (order in Moat v Commission, paragraph 38, and Case T-157/96 Affatato v Commission [1998] ECR-SC I-A-41 and II‑97, paragraph 38).
46 It follows from the foregoing that the claim for damages is inadmissible.
The applicant’s request for measures of organisation of procedure
47 At the stage of the reply, the applicant requested the Court to take measures of organisation of procedure, ordering the Commission to produce the document containing the minutes of the meetings of the JEC, the two best CDRs and the two worst CDRs of the officials in his unit for the period 2001-2002, together with the document containing the official quantitative standards of the translation units for that period. By document of 6 October 2005, he requested the Court to order the written procedure to be reopened or to accept new offers of evidence.
48 It should be recalled that it falls to the Court to assess whether the measures of inquiry or of organisation of the procedure sought by the parties are appropriate (Affatato v Commission, paragraph 57, and Séché v Commission, paragraph 284). However, in the present case, it suffices to observe that, irrespective of whether the documents lodged by the applicant with his written pleadings of 6 November 2005 are admissible, the measures sought by the applicant are of no interest for resolving the case, since there is no longer any need to rule on the application for annulment and the claim for damages is inadmissible. Therefore, the requests for measures of organisation of procedure are dismissed.
Costs
49 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
50 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants, the institutions are to bear their own costs.
51 In the present case, account should be taken of the fact that, first, the circumstances which led to the decision not to proceed to judgment on the application for annulment are the result of an event that was independent of the conduct of the main parties to the proceedings, and, secondly, the applicant’s claim for damages has failed.
52 In those circumstances, the parties should be ordered to bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby:
1. Declares that there is no longer any need to rule on the application for annulment;
2. Dismisses the action for damages as inadmissible;
3. Orders the parties to bear their own costs.
Delivered in open court in Luxembourg on 7 February 2007.