C-11/72

JUDGMENT OF THE COURT (SECOND CHAMBER) 5 APRIL 1973 1

Luigi Giordano v Commission of the European Communities

Case 11/72

Proceedings — Non-contractual liability — Action for compensation — Time in which action brought — Period of limitation (EEC Treaty, Articles 173 and 175; Statute of the EEC Court, Article 43)

In no circumstances can the application sentence of Article 43 of the Statute of of Articles 173 and 175 of the EEC the Court of Justice of the EEC being Treaty result in the period of limitation reduced. of five years laid down in the first

In Case 11/72

1 — Language of the Case: Italian.

JUDGMENT OF 5. 4. 1973 — CASE 11/72

JUDGMENT

Issues of fact and of law

I — Outline of facts the damage caused to him by the circumstances in which his 'dismissal' Luigi Giordano, after having undergone had occurred and by the part played by a course of training from 23 March 1964 the Commission in the refusal of the to 22 October 1964, was, by contract Court of Justice to proceed with his dated 8 December 1964 engaged with appointment; the status of auxiliary servant (Category This request was rejected in a letter from A, group III, class 1), as a scientific the President of the Commission dated 9 assistant at the Directorate-General of March 1971; Transport, for the duration of one year By a letter of 10 February 1971, Mr commencing on 15 November 1964; Giordano, with his lawyer acting as The said contract was renewed on intermediary, informed the Director-Gen­ various occasions by the Commission for eral of Administration of the periods of between 3 and 6 months; Commission that the termination of his By a notification on 23 March 1967, the contract of employment concealed a Commission once more extended Mr. dismissal for disciplinary reasons, whose Giordano's contract and gave him notice true grounds were brought to light by that his duties would be terminated the unfavourable information concerning definitively on 30 June 1967; him which had been transmitted to the Mr Giordano left the Commission's ser­ Court of Justice, and asked the vice on that date; Director-General to re-examine his

The Court (Second Chambre) of 7 June A — Admissibility 1972, on the report of the The Commission is of the opinion that Judge-Rapporteur and upon hearing the Advocate-General decided, by order the applicant, by the subterfuge of an dated 7 June 1972, to consider the action for damages, is trying to obtain objection at the same time as the merits. the judicial control of decisions or acts New time limits having been fixed for which are now beyond attack. the proceedings, the written proceedings With regard to the submissions which followed a regular course. are implicit or express in the action, the The Court (Second Chamber), on the following observations must be made: report of the Judge-Rapporteur and (a) To the extent that it refers to the upon hearing the Advocate-General, decision of the Commission of 21 decided to begin the oral proceedings January 1969, rejecting the claim of the without any preparatory inquiries. applicant dated 12 October 1968, the At the hearing on 22 February 1973, the action is inadmissible by the reason of applicant did not appear and the the expiry of the time limit laid down in defendant left the matter to the wisdom Article 91 of the Staff Regulations. of the Court. (b) To the extent that it refers to the The Advocate-General presented his decision of the Commission of 9 March opinion at the hearing on 15 March 1973. 1971, rejecting the claim of the applicant dated 7 October 1970, its inadmissibility results from the expiry of the time limits laid down in Article 91 of the Staff III — Submissions of the Regulations and in Article 43 of the parties Statute (EEC) of the Court. The applicant asks the Court (c) To the extent that it has exclusively — to affirm the liability of the as object an action for damages based on the non-contractual liability of the Commission and to order it to pay him the total salary which he was Commission, its inadmissibility results unable to receive from the Court of from the expiry of the time limits laid down by the third sentence of Article 43 Justice from December 1968 until the of the Statute (EEC) of the Court. The date of the judgment in the case, or any other sum which the Court grounds invoked in support of the action have all been advanced in the claim should think proper; dated 10 February 1971; by reason of — to order the defendant to bear the the implicit rejection of this claim, the costs and expenses of the action; action should have been brought within a period of 4 months. The Commission asks the Court (d) The previous claims of the — to declare the action inadmissible or applicant, dated respectively 7 October unfounded; 1970 and 10 February 1971, had the — to order the applicant to bear the same object as the action. Without doubt costs. they interrupted the period of limitation of 5 years; but equally they had the effect that, according to the third sentence of Article 43 of the Statute IV — Pleas and arguments (EEC) of the Court, the action should have been begun within the period of 2 The pleas and arguments of the parties months provided by Article 173 of the can be summarized as follows: EEC Treaty, or within the period of 4

On 12 October 1968, 7 October 1970 and 10 February 1971, he restricted B — Merits himself to contesting the legality of his dismissal; the present action seeks compensation for the damage which the The applicant maintains that the Commission has caused him by Commission, in application of the supplying the Court of Justice with second paragraph of Article 215 of the unfavourable information and thereby EEC Treaty, is obliged to make good the preventing his appointment by this damage he has suffered as a result of his institution. illegal dismissal and the damage caused to his career. This difference of object is in particular confirmed by the fact that the 'quantum' (a) As for the question of fault, the of the action for damages is fixed by applicant is of the opinion that, behind reference to the salary which the the inoffensive wording of the applicant would have been able to gain Commission's letter of 23 March 1967 at the Court of Justice since December which contains both the prolongation of 1968 and not by reference to the salary his contract of service and notice of the which he has not received from the definitive termination of his duties, is Commission since his dismissal (30 June hidden a dismissal for disciplinary 1967). reasons, in respect of which the Moreover, the unfavourable information guarantees of defence offered by Article supplied to the Court of Justice by the 76 of the Conditions of Employment of Commission constitutes, in the claim of Other Servants have been evaded. The 10 February 1971, one of the factors real grounds of this dismissal establishing 'a posteriori' the disciplinary subsequently became manifestly appa­ character of the dismissal, the annulment rent in the notification to the Court of of which is the object ('petitum') of the Justice of adverse information. claim itself. In the action, the Moreover, the Commission has unfavourable information is cited as the prevented the applicant from being factor generating the damage, and the appointed by the Court by providing the reference to the illegal dismissal only latter, in relation to him, with underlines its intentionally prejudicial unfavourable information, relating to character, the object ('petitum') of the facts which should have been the object request being solely compensation for of a debate open to both parties at the the damage suffered. time of his dismissal. By notifying a Thus, the action has not been preceded prospective employer of facts which by any 'prior application' within the cannot be taken for granted — the party meaning of Article 43 of the Statute concerned not having been warned (EEC) of the Court; the claims made beforehand to prepare his defence, prior to litigation were aimed at contrary to Article 76 of the Conditions obtaining a re-examination of the act of of Employment of Other Servants — the dismissal and not at raising the question Commission infringed the obligation of of the extra-contractual liability of the propriety which ought to govern social Commission. In the absence of an relationships.

its unlawful character simply because of Commission has caused serious damage the fact that it concerns relations of a pecuniary nature, bearing in mind the difficulties which he has encountered between two organs of the same legal person and not between two separate in re-entering the national employment legal persons. market, to such an extent that he is still unemployed today. In reality, setting aside the fact that the It is impossible for him to produce a Community institutions can be seen certificate certifying his unemployment, partially to have recognized in each since in Italy there exist no registers of other the status of legal persons, the unemployed intellectuals. The general important factor in the case in issue is rule must be applied whereby negative not the relation between two employers facts do not have to be proved; it is in succession, but that which exists sufficient to assert them, subject to the between the employer and his employee, possibility for the opposing party of this relation is governed by the principle 'alterum non laedere', which manifests adducing proof of the contrary positive fact. itself in the prohibition on expressing unfavourable appraisal of the employee's (c) As for causality, the applicant personality or work. considers that, even if the intention of In compliance with the general principles the Court of Justice to appoint him had common to the laws of Member States not been expressly dependant on a and therefore to the rules of favourable opinion of the Commission, non-contractual liability, the burden of the unfavourable information supplied proof, to bring into play the liability of by the latter destroyed that intention; the public service, is concerned with the whatever may have been the other fact of damage rather than fault. possible reasons for not proceeding with his appointment, information unfavoura­ In the case in issue, the close relations between institutions allow one to ble to him sufficed by itself to prevent it. suppose that unfavourable information In this area the principle must be applied with regard to the applicant was whereby a finding that the damage is imparted outside normal administrative due to several concomitant causes is not

existence of three fundamental factors: complaint of illegal behaviour by the fault, damage and the relation of Commission as being without founda causality between these two elements. tion. None of these elements is established in Moreover, it is not possible to ascribe to the case in issue. the Commission events which occur outside the field in which it has a power (a) As to 'fault', the applicant attempts of control. From the Court's case law, to raise to the level of 'general principles common to the laws of all Member the Community can only be made liable for acts which ate an indispensable States' legal concepts which belong only extension of the functions of its

the Commission. There is nothing of the remains unchanged. As for the allegation sort in the case in issue. Thus the of 'fault' against the Commission, the Commission finds it impossible to applicant does not adduce any precise or relevant factor. supply the Court with any factor capable of facilitating the appraisal, on the basis As for the complaint that the of objective facts, of the events described termination of his contract conceals a by the applicant, for his part, the dismissal on disciplinary grounds, applicant, on whom the burden of proof grounds evidenced by the communica

not convey to third parties any applicant is content with a simple information capable of causing him assertion, and does not produce the harm in any manner whatsoever. slightest indication of any damage The particular nature of relations whatever. One cannot require the between the Community institutions Commission, on whom the burden of makes it questionable whether the proof does not lie, to prove the absence principle that an employer must refrain of damage. from any unfavourable appraisal with It must be admitted that the applicant regard to an employee applies in the would have been able, without the field of the Community public service. Commission's knowledge, to work full The court of Justice and the time during all the years when he asserts Commission are two institutions of the that he was unemployed, either by same Community; this relation, even if pursuing a professional occupation or by one accepts the applicant's argument, employment in the public or private must, of itself, lead one to consider the sector.

By virtue of this, the applicant claims the total salary which he was unable to obtain from December 1968 — when his candidature was rejected by the Court of Justice — until the date when judgment is delivered by the Court, or any other sum which the Court thinks proper.

Admissibility

2 According to the Commission the action is inadmissible since it is in reality directed towards obtaining judicial control of decisions which are now beyond attack, namely the non-renewal of the applicant's contract and the rejection by the Commission of financial claims which he had made on this account.

3 The applicant for his part asserts that his claim relates to making good the damage resulting from the fact that he has not been appointed by the Court

JUDGMENT OF 5. 4. 1973 — CASE 11/72

of Justice because of damaging information supplied by the former employer who, 'not satisfied with having illegally broken the contract of employment,' has by his subsequent behaviour prevented the creation of a contract of employment with another Community institution.

6 Such plea in bar rests on an erroneous interpretation of Article 43 of the Statute.

By the first sentence of this Article, proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto.

GIORDANO v COMMISSION

The second and third sentences of the same Article have reference exclusively to the interruption of the period of limitation thus laid down.

It is provided on this point that the period of limitation shall be interrupted either by the application brought before the Court, or by a preliminary request addressed to the relevant institution, it being however understood that, in such latter case, interruption only occurs if the request is followed by an application within the time limits determined by reference to Articles 173 and 175, depending on the case in issue.

7 Henceforth it appears that in no case can the application of these provisions have the effect of cutting down the five-year period of limitation laid down by the first sentence of Article 43 of the Statute.

to In addition, the plaintiff has produced a telegraphic communication which emanated from an official of the Court's administration, letting him know

JUDGMENT OF 5. 4. 1973 — CASE 11/72

that his chances of obtaining a post deteriorated after 'enquiries made in Brussels'.

This communication, allusive and of a personal nature, does not however establish more than the existence of preliminary contacts or enquiries in relation to the party concerned with a view to his possible appointment.

11 The applicant has not produced, nor even offered to produce, any additional proof in support of his allegations.

Hence, the prospects of a post which he claims to have had, in the same way as the effect of allegedly unfavourable information on the part of the Commis­ sion on his supposed chances, must be considered as belonging to an area of pure conjecture.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially the second paragraph of Article 215; Having regard to the Staff Regulations, especially Article 90 and 91; Having regard to the Conditions of Employment of Other Servants, especially Article 73;

GIORDANO v COMMISSION

Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 43; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 91.

THE COURT (Second Chamber)

hereby:

1. Dismisses the action;

DELIVERED ON 15 MARCH 1973 1

Mr President, regularly renewed for periods of 3 to 6 months. He was allocated to the Members of the Court, Directorate-General of Transport as a I — The Facts scientific assistant, and initially gave satisfaction there but, from October For three years Mr Luigi Giordano was 1966, his standard of work and his employed in the Commission of the general behaviour called for some European Communities. After a reservations and were then judged to be probationary period from March to clearly unsatisfactory by his superiors. October 1964, he was engaged as a On 23 March 1967 the Administration member of the auxiliary staff in gave him notice that his duties would be Category A (Group III, Class I) for a terminated definitively on the following period of one year from 15 November 30 June. His engagement terminated 1964, under a contract which was effectively on that date.

1 — Translated from the French.