C-168/83

APPLICATION for an award of damages on the ground of wrongful acts or omissions on the part of the administration,

THE COURT (First Chamber),

composed of: G. Bosco, President of Chamber, A. O'Keeffe and R. Joliét, Judges,

Advocate General: M. Darmon Registrar: D. Louterman, Administrator

gives the following

* Language of the Case: French.

The applicant claims that the Court should: Since that accident, the applicant has continued to work as a shorthand typist in Declare the application admissible; the pool. Declare that the defendant bears On 21 January 1982, the Director of responsibility for two wrongful omissions, Personnel and Social Affairs at the Parlia­ inasmuch as it failed to communicate to the ment informed the applicant that her case applicant the findings of the Invalidity would be referred to the Invalidity Committee, and did not, over a period of Committee under Article 78 of the Staff years, take steps to relieve the applicant of Regulations of Officials. On 25 May 1982, work which clearly exceeds her physical on a recommendation from the Parliament's capacities and is causing her serious physical medical officer, he wrote a letter to Mr harm; Vinci, the Director-General for Sessional Declare that a causal relationship exists and General Services, suggesting that the between those wrongs and the deterioration applicant be transferred 'to a post which will in the applicant's state of health; enable her to do work more in keeping with her state of health'. Despite that proposal, Award the applicant by way of damages the the applicant's situation has not changed in sum of Lfr 1 000 000 or such greater sum as any way. On 28 January 1983, the the Court shall decide, plus interest at the Invalidity Committee submitted its report, rate of 10% from the date of the which contained the following conclusions: application;

'The after-effects of Mrs Gherardi's In the alternative, accident on 15 November 1979 constitute a condition of partial invalidity preventing her Appoint three experts to assess the damages from continuing in her present post. and, if necessary, to give an opinion on

the causal relationship between the After representations made by the administrative delays and the deterioration applicant's lawyer to the competent officials in the applicant's vision and her general at the Parliament, the Invalidity state of health; Committee's conclusions were communi cated to her. Order the defendant to pay the costs. According to the applicant, the Parliament The defendant contends that the Court did not comply with the Invalidity should: Committee's conclusions. Two proposals for Declare the application inadmissible; the transfer of the applicant were discussed, but they were not in accordance with the If not, declare it unfounded. recommendations made by the Invalidity Committee and would have entailed capitis deminutio for the applicant.

purpose. The applicant claims compensation for that wrongful conduct. In its judgment of The Invalidity Committee's conclusions 11 July 1974 in Case 53/72, Guillot v were never formally notified to the applicant Commission, [1974] ECR 791, the Court despite the provisions of the second held that the principles of justice and of paragraph of Article 9 of Annex II to the sound administration are binding on the Staff Regulations. That failure to notify administration. The administration should constitutes an omission on the defendant's look after the interests of its employees, and part to take a measure prescribed by the by not fulfilling that specific obligation it Staff Regulations within the meaning of makes itself liable for the damage suffered Article 90 (2). by the employee concerned. The applicant

On 11 August 1980, on the advice of Dr The Parliament submits that the application Libutti in Rome, the applicant resumed her is inadmissible because it was brought work part-time in order to allow her sight without any prior complaint having been to readjust gradually. She was back in Rome submitted as required by Article 91 (2) of from 4 September to 21 October 1980 for the Staff Regulations. medical consultations. After that she worked again full-time from 22 October 1980 to 9 January 1981 and was then absent, partly on It states that the applicant seeks to justify sick leave and partly as part of her annual her failure to take her complaint through leave, from 10 January 1981 to 22 March official channels by relying on the Court's 1981. She resumed her work full-time on decisions on the supererogatory nature of a 23 March 1981. complaint through official channels in appeals against a selection board's decisions. By a registered letter dated 14 May 1981, the appointing authority notified the The basis of that exception is that applicant that she was to be dismissed, complaints against decisions which the following the unfavourable report on her appointing authority cannot review are probationary period, with effect from futile. That is so in the case of the decision 30 April 1981. of a selection board, against which 'a complaint ... through official chan­ She was subsequently employed from 1 July nels ... appears to be pointless, as the 1981 to 31 December 1981 as a member of Commission is not competent to annul or the temporary staff. amend the decisions of such a board' (Case 44/71, Marcato v Commission, [1972] ECR 427). By letter of 2 December 1981, the Secretary-General of the European Par­ liament decided to revoke the applicant's That exception is due solely to the dismissal and to submit her case to the independent nature of selection boards. Invalidity Committee in order that it should examine to what extent she was able In Mrs Pasquali-Gherardi's case, the legal to continue to perform the duties basis for a departure from the normal corresponding to the post she held. procedure is lacking.

On the contrary, the application criticizes The applicant rejected those offers, citing the administration for acts or omissions personal reasons (isolation or the unre­ which allegedly brought about the deterio­ warding nature of the work) and not the ration in her condition and for not having fact that the visual effort required would taken into account the Invalidity remain the same. Committee's recommendations. The administration has sought various ways and means of giving the applicant satis­ It is for the administration to examine the faction within the limits of the medical claims of the official concerned with a view opinion delivered by the Invalidity to deciding upon the action to be taken; the Committee. appointing authority has full powers to change the applicant's legal position where It offered her two posts. One was in the necessary. Messengers Service, the other in Personnel Archives. The applicant may have had reason to find fault with the replacement Therefore the defendant considers that the posts she was offered, but what other applicant was not entitled to dispense with solution could the appointing authority have the complaints procedure and that her direct envisaged? application to the Court of Justice is inadmissible. In any event, it must be held that the administration, first, was not insensitive to the difficulties experienced by the applicant, As to the substance, the defendant notes and, secondly, did not remain inactive faced that the second paragraph of Article 9 of with a complex situation which it is Annex II to the Staff Regulations requires extremely difficult to resolve. the Invalidity Committee's conclusions to be communicated to the appointing authority and to the official concerned. As regards the medical consequences of keeping Mrs Pasquali-Gherardi in her present post, the Parliament states that it must rely on the expert medical advice The applicant admits that she received those submitted to it and further denies that it can conclusions through her lawyer, who was in be responsible for failing to re-assign the contact with the administration. applicant when that was due to successive refusals on her part. The claim is therefore unfounded in fact. In conclusion, the defendant rejects the applicant's claims as being unfounded. As to the applicant's second claim, namely that it failed to take any action or acted In its reply, the applicant maintains that it is wrongfully towards Mrs Pasquali-Gheradi, not necessary in a case such as the present the defendant submits that the to lodge a prior complaint. However, in administration did not fail to look for a fair order to safeguard her rights, she submitted solution to the problem caused by the a complaint to the appointing authority on applicant's state of health. 23 November 1983.

reference were to examine to what extent then she could not and cannot continue to she was able to continue to perform the be employed as such. Does that amount to duties corresponding to the post she held. If saying that the invalidity from which she those were indeed the Committee's terms of suffered should have been regarded as total reference, it should be noted that they were although from a medical point of view it inconsistent with the various provisions of was certainly only partial? That is a the Staff Regulations defining the task of an question to be determined by the competent Invalidity Committee. Under Article 78, that bodies, in this case the Invalidity task is to examine whether the official Committee. concerned may be recognized to be suffering from total permanent invalidity If, however, the applicant is not regarded as preventing him from performing the duties suffering from total invalidity or at least corresponding to a post in his career from invalidity preventing her from per­ bracket. According to the Court's judgment forming her duties, then she cannot attach in Case 3/66, Alfieri v Parliament, [1966] blame to the administration for retaining ECR 437, it is not an Invalidity her in that post. Committee's duty to examine whether other posts in the applicant's career bracket would be suitable for him. The European Parliament had nothing but understanding for the applicant's position. At the end of her probationary period, her assessor delayed making an unfavourable The applicant argues that the proposals report for as long as possible. When he made regarding alternative posts did not examined her case following her complaint, take into account the medical practitioners' the Secretary-General revoked the decision recommendation that any visual effort was to dismiss her and established the applicant, to be avoided. However, she never rejected any offer to transfer her and never declined who was then promoted. The administration a post. On the contrary, she would have has also examined the possibility of yielded to a transfer decision in proper employing the applicant in other posts. She form. has rejected the offers made to her in that connection.

had been refused, she would have been January 1983, and it confined itself to entitled to lodge a complaint under Article establishing partial invalidity without 90 (2). indicating its extent. For the present, therefore, the appointing The usefulness of such a procedure is authority does not possess the medical undeniable because the official's request information which it requires to decide defines the nature of his claim and upon the applicant's case and to take the constitutes a formal invitation to the measures required by the Staff Regulations. administration to act. In the applicant's case a request for a transfer would have The defendant argues that the basis of the indicated the steps which she wished to be claim for compensation submitted by the

The documents failure to adopt a measure prescribed by the concerning the case do not provide any Staff Regulations. evidence in support of that assertion. The doctors consulted confined themselves to As to the substance, the defendant denies recommending a different posting. that the administration remained inactive despite the applicant's situation. She had her Consequently, neither the alleged deterio accident on 17 October 1979 [sic]. After ration nor the causal relationship between that she was more or less absent from her that deterioration and the applicant's post until mid-April 1981, with the result continued performance of her duties as a that it was impossible for her superiors to shorthand-typist is established. express a view on her ability and output at the end of an extended probationary period. Even on the supposition that that were proven, the Parliament denies that it caused All that the administration knew, according that deterioration by continuing to employ to the applicant's statement, was that she the applicant in that post. had sustained an accident and as a result had suffered eye-trouble so that periods of The applicant was recruited from a reserve sick leave were necessary. The doctors list of shorthand-typists. The duties as treating her did not express a view as to the described for her competition consisted after-effects of her injury or the degree of exclusively in shorthand-typing. invalidity which may have been produced by

It is was a year later. The Medical Committee not under a duty to do so under any has even now not yet delivered its opinion. provision of the Staff Regulations. In any As for the Invalidity Committee, to which event it must restrict itself to posts in Career the matter was referred in January 1982, its Bracket C 3 — C 2, to which the applicant report was not delivered until the end of belongs.

3 Following a time in which periods of work alternated with periods of sick leave, the applicant was dismissed with effect from 30 April 1981 on the basis of an

JUDGMENT OF 15. 1. 1985 — CASE 168/83

unfavourable report on her probationary period. However, the Secretary-General of the Parliament rescinded that decision by a letter of 2 December 1981. He then referred the applicant's case to the Invalidity Committee in order to establish to what extent she was still able to carry out the duties corresponding to a post in her career bracket. On 28 January 1983, the Invalidity Committee delivered its report. That report states that 'the after-effects of Mrs Gherardi's accident on 15 November 1979 constitute a condition of partial invalidity preventing her from continuing in her present post. The Committee recommends that she should be assigned to a post corresponding to her career bracket but not involving a high level of visual effort.' The Invalidity Committee's conclusions were not at first communicated to the applicant herself. They were sent to her lawyer only after he had intervened.

4 The Parliament's administration then offered the applicant two posts which it considered to satisfy the Invalidity Committee's recommendation, one in the Messengers Service and the other in Personnel Archives. The applicant took the view that those posts would involve completely unrewarding work and offer no chances of promotion and did not accept either offer.

5 Mrs Pasquali-Gherardi then brought this action. In her application, she admits that she did not beforehand lodge a complaint through official channels. In order to justify her failure to lodge a prior complaint under Article 90 of the Staff Regu­ lations, she argues that the condition in Article 91 of the Staff Regulations is only applicable to measures which the appointing authority can review. In this instance, there is nothing to review, since the wrongs committed are irreparable.

10 The Parliament's position is therefore that, although it has not yet found the applicant a suitable position, it has not failed in its obligations towards her.

Admissibility

11 Article 91 (2) of the Staff Regulations provides that an appeal to the Court lies only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2) and if the complaint has been rejected by an express or implied decision. The object of that provision is to permit and encourage an amicable settlement of disputes which arise between officials or other servants of the Communities and the administration. The Court has upheld the admissibility of actions in the absence of a prior complaint only in the case of appeals against decisions of selection boards. In such cases, the appointing authority does not have the power to annul or amend the selection board's decisions. In this case, however, a prior complaint might have served a useful purpose. It was essential for the defendant to be put in a position to know the complaints made against it, so as to enable it, where appropriate, to endeavour to settle the dispute before an action was brought. In the absence of a prior complaint, the application is therefore inadmissible.

JUDGMENT OF 15. 1. 1985 — CASE 168/83

Costs

12 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.

Delivered in open court in Luxembourg on 15 January 1985.

P. Heim G. Bosco Registrar President of the First Chamber