C-224/87

OPINION OF MR TESAURO — CASE 224/87

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 30 November 1988 *

'barrage' of objections of inadmissibility, to Mr President, the point where examination of the Members of the Court, procedural questions, some of which in my view reflect excessive formalism and a spirit of pettifoggery, eventually prevails over consideration of the substance of the case. 1. In a request submitted on 4 June 1986 pursuant to Article 90(1) of the Staff Regu­ lations the applicant stated that on 2 June 1986 he had been assaulted by one of his superiors, Mr Wilkinson, and asked the Commission to open disciplinary 3. A — First, the Commission argues that proceedings against that person. Following the action is inadmissible inasmuch as it is the tacit rejection of that request the directed against an implied decision applicant submitted a complaint on 27 rejecting an administrative complaint — a November 1986 under Article 90(2) of the decision which, as the Court has consis­ Staff Regulations. That complaint was also tently held (see Joined Cases 33 and 75/79 tacitly rejected by the Commission. The Kuhner v Commission [1980] ECR 1677 and applicant therefore brought an action before Case 191/81 Plug v Commission [1982] the Court asking it in substance to: ECR 4245) may not be challenged in so far as it merely confirms the prior act or failure to act to which the complainant takes exception. (a) annul the decision rejecting the complaint;

5. However, I would like to make one or 90(2), stipulates that 'an appeal may be two comments of a general nature regarding lodged' against the implied decision to the Commission's argument. There is no reject the complaint. doubt that the rejection of an administrative complaint does in fact confirm the prior decision against which the complaint was made. However, I do not think it is correct to apply the procedural principle under which acts of a purely confirmatory nature 7. At this point it may be helpful to recall cannot be challenged to the decision that in certain legal systems such as the rejecting the complaint. As we know, the Italian and French, which make or have principle is intended to prevent circum­ made provision for a system of a vention of the bar to challenging an act compulsory preliminary administrative which has become final by virtue of the complaint, the fact that an action can be expiry of the time-limit for appeal. A brought against decisions rejecting concrete example of such a case would be complaints — whether implied or where the addressee of a decision which was express — has never been doubted. ' already final tried, by submitting a new request, to obtain a decision with exactly the same content as the original decision, against which he would then appeal before the Court. However, it is clear that the submission of an administrative complaint in 8. With regard to the judgments of 28 May good time by the official is obviously not a 1980 and 9 December 1982, they do not, in device intended to evade the rule of public my opinion, have the significance attributed policy which governs the time-limits for to them by the Commission. In the Kuhner appeals. On the contrary, the preliminary case there were in fact two decisions submission of an administrative complaint rejecting the complaint, the first implied and constitutes an obligation which the official the second express, and two separate legal must meet under the Staff Regulations in actions directed against the decisions to order to maintain his right subsequently to reject the complaint. In that case the bring an action before the Court. Similarly, Commission correctly invoked the confir­ the decision rejecting the complaint cannot matory nature of the second decision in be considered as a means of deviously relation to the first, so that the second of opening the way to an appeal which would the two actions was inadmissible. However, not otherwise be available, but rather as an that case is different from the present case essential precondition for the admissibility both because it concerned two decisions to of the action (Article 91(2) of the Staff reject a single complaint (and not two Regulations). decisions to reject a 'request' and a 'complaint' respectively) and because there were two legal actions, separate but

identical in substance, the second of which 24 of the Staff Regulations and did not was inadmissible by virtue of the principle claim any compensation. The subsequent ne his in idem. action is therefore completely or partly inadmissible in so far as it introduces new issues, the breach of Article 24 and the application for damages, which were not raised in the pre-litigation procedure before As for the judgment in Plug v Commission, litigation. it should be observed that in that case the claim for annulment of the implied decision rejecting the complaint had the same content as other claims, in the same action, challenging the basic decisions against which the complaint had been submitted. In 11. Let me say straight away that those that case, therefore, for reasons of procedural arguments reflect an excessively procedural economy it was possible to formalistic interpretation of the principle of disregard the first application and give a identity of subject-matter between adminis­ ruling on the merits only of the other two, trative complaint and subsequent legal which in any event had the same subject- action. It is an interpretation which is not, matter. to my mind, consistent with the spirit of the Staff Regulations as defined in the case-law of this Court.

KOUTCHOUMOFF v COMMISSION

13. It follows — as the Court has during the pre-litigation procedure. emphasized on a number of occasions (see Case 173/84 Rasmussen v Commission [1986] ECR 197; Case 52/85 Rihoux v Commission [1986] ECR 1555; Case 142/85 Schwiering v Court of Auditors [1986] ECR 3199; Case 242/85 Geist v Commission [1987] ECR 2181) — that the content of the 15. In the light of those preliminary complaint is not binding strictly and abso remarks, I shall examine individually the lutely for the contentious stage of the objections of inadmissiblity mentioned proceedings, if any, so that in the above. With regard to the objection based proceedings before the Court the person on the absence of any express reference in concerned may define and expand the the complaint to Article 24 of the Staff complaints already submitted in the previous Regulations, it is sufficient to observe that stage, presenting submissions and arguments that absence is irrelevant inasmuch as during which, while not appearing in the complaint the pre-litigation procedure, by alleging an itself, are closely related to it. In other assault by his superior and requesting the words, the official does not have to specify Commission to institute disciplinary in his complaint all the technical and legal proceedings, the applicant implicitly implications of his application; it is requested the assistance of the Commission. incumbent instead upon the Therefore that objection should be rejected. institution —• which has the resources and the obligation to do so — to deduce and assess those implications 'with all the care that a large and well-equipped organization owes to those having dealings with it'.

OPINION OF MR TESAURO — CASE 224/87

officials. As emphasized above, it is precisely that duty that the applicant calls on the 19. That is, moreover, consistent with my Commission to fulfil in his complaint. observations above regarding the nature and Consequently, I think that by invoking purpose of the system of remedies under the before the Court the specific duty to Staff Regulations. Once an official has provide compensation, the applicant has not claimed in his complaint that an act is actually introduced a new element in unlawful, the administration cannot but be relation to the subject-matter of the aware that that unlawfulness, if established, pre-litigation procedure.

him, the official concerned is at liberty to sation for the damage suffered. bring an action before the Court concerning the legality of the act itself, and the financial consequences which may arise therefrom. The judgment in Case 54/77 (Herpels v Commission [1987] ECR 585) is even more explicit: dealing with the admissi 18. (b) Secondly, the applicant asserts that bility of a claim for damages which was not the Commission is liable for the damage he made in the administrative complaint, the suffered as a result of the decision to reject Court observed that: his complaint—a decision which he considers void on the ground that it infringes Article 24 of the Staff Regulations.

That close link is, moreover, confirmed by the fact that the inadmissi bility of the application for annulment would have as an inevitable consequence the Moreover, it is important that the Court inadmissibility of the claim for damages. I should be able to give a ruling on such therefore think that in order for the claim claims.

It is right therefore to admit the claim for 21. It should be observed, moreover, that damages.' the Commission argues that this particular claim for damages is also inadmissible by virtue of the fact that it is ancillary to the claim for annulment, which is itself, says the Commission, inadmissible. That argument is 20. It is true that in its judgment of 4 July clearly unfounded inasmuch as the claim for 1985 in Case 174/83 Amman v Council annulment, as we have seen, is admissible. [1985] ECR 2133, the Court held otherwise, Moreover, it seems to me that by empha declaring inadmissible a claim for compen sizing the ancillary nature of one claim in sation (for damages arising from the loss of relation to the other, the Commission purchasing power of arrears of salary) weakens its argument regarding the need to which did not appear in the complaint. It is include the claim for damages as early as odd that that conclusion should be justified the complaint stage of the procedure. by reference to a paragraph of the decision

complaint. However, leaving aside that two previous claims, is based on the liability peculiarity, the fact remains that the of the administration arising not from an approach adopted in Amman v Commission unlawful act but rather from wrongful seems to be inspired by a very rigid inter conduct constituted, in general terms, by the pretation of the rule that there should be delay in taking certain measures. identity of subject-matter between the pre-litigation procedure and the action before the Court. That interpretation runs

. . if necessary, of its own complaint, is admissible. motion to order [the administration] to pay

The Commission argues that the action is inadmissible in so far as its purpose is to 24. The Commission also submits, again in obtain a declaration by the Court that the relation to the claim for damages, that by Commission is obliged to open disciplinary changing the claim for compensation at the proceedings. reply stage, increasing the amount claimed from ECU 2 500 to ECU 6 050, the applicant introduced a new and therefore inadmissible claim. However, it should be 26. However, as pointed out above, the observed that in the reply the applicant did specific request for disciplinary measures not, in order to substantiate the damage against Mr Wilkinson made by the applicant complained of, put forward different in his request and in his complaint must be submissions from those stated, even if in regarded as being part of a much wider vague terms, in the application, that is to request seeking to obtain the effective say the joint and several liability of the assistance of the Commission. The Commission under Article 24 of the Staff subsequent legal action must therefore be Regulations, the breach of a duty to provide understood as intended to establish the assistance and lack of diligence in investi­ unlawfulness, in so far as it infringes Article gating the matter. He simply stated those 24 of the Staff Regulations, of the decisions arguments in more detail, reaching a rejecting the request and the complaint. The different — that is to say higher — objection seems to me therefore to be assessment of the damage. It is not a unfounded. question of a new application (mutatio libelli), nor of a substantial modification of the original application, but of a simple 27. I should add that in any event the amendment to the original application initiation of disciplinary proceedings should which does not modify its subject-matter not be — as the Commission claims — abso­ and whose only consequence is therefore to lutely discretionary. I consider that the open a new field of enquiry, thus making Court could, for example, rule that failure the other side's defence more difficult. In to open disciplinary proceedings against an fact the Commission did not even have to official is unlawful if it is established that

(a) that the decision to reject the complaint is contrary to Article 24 of the Staff 30. It is true that the applicant has sought Regulations; to justify the fact that he did not name witnesses during the administrative stage by the fear of possible pressure by the Commission on those witnesses. The possi­ (b) that, in any event, the Commission's bility cannot be ruled out that that fear may lack of diligence in investigating his be real. Nevertheless it has to be pointed out complaint constitutes unlawful conduct. that such pressure, if it existed — and moreover any other defect in the adminis­ trative investigation — would find its As a consequence of the submissions under natural remedy among the means of (a) and (b), he also requests that the recourse provided by the Staff Regulations, Commission be ordered to pay compen­ and could not in any event release the sation for the material and non-material official from the burden of proving the damage caused to him. validity of his assertions. Moreover, it should be stated that in the present case the risk of pressure from the Commission might 29. With regard to the arguments set out at most justify the applicant's reticence under (a) it does not seem to me that in the during the administrative stage, but not the circumstances the applicant can legitimately fact that even during the subsequent liti­ invoke breach of a duty of assistance on the gation he did not put forward the slightest pan of the institution. The Commission evidence to support his arguments and in rightly took into consideration: particular his request for assistance addressed to the administration. It seems to me, therefore, that it is possible to conclude that in rejecting the applicant's complaint (a) the fact that the applicant himself the Commission did not infringe Article 24 admitted in his request that he of the Staff Regulations. prompted the incident by his refusal — in breach of the rules governing his employment — to sign the acknowledgement of receipt of his staff reports for the periods 1981 to 1983 and 1983 to 1985, something which, indeed, 31. Nor, in my view, can it be considered he had previously systematically that the decision rejecting the complaint avoided; constituted a breach of the administration's

As was pointed out above, in this particular case the Commission decided, on the basis of the information provided by the parties concerned, that it was appropriate (and, in the final analysis, also in the applicant's own 32. With regard to the applicant's second interest) to play down the importance of the argument, relating to the breach of the incident. The Commission was no doubt Commission's duty to exercise due confirmed in that view by the fact that, as diligence, I should emphasize generally that we have seen, throughout the pre-litigation in the face of incidents which disturb the procedure and even before the Court, no order of the service, the institution is information came to light of such a nature required to carry out a rapid, thorough and as to endow the episode with an importance impartial investigation and take appropriate likely to impair the normal functioning of steps (see the judgment of 14 June 1979 in the service. Case 18/78 Mrs V. v Commission [1979] ECR 2093). Where incidents of that kind take place the administration should not, therefore, confine itself to mere preliminary 35. From that point of view there is in my investigations, obtaining the conflicting opinion one significant difference in relation statements of the parties concerned, but to the case Mrs V. v Commission cited should carry out an objective investigation above, where it is was entirely clear that a so as to be in a position to base its own violent altercation had taken place between

KOUTCHOUMOFF v COMMISSION

36. On the other hand, it does not seem to me that the facts of the present case, as set III — Costs out by the parties, were such as to leave the Commission no choice regarding the carrying out of inquiries, particularly since 38. The Commission has asked for the the Commission considered that in such a applicant to be ordered to pay all the costs situation it was in any event preferable to by virtue of the vexatious nature of the avoid taking any steps whatever in respect action. I think that application should be of the parties concerned. dismissed, not simply because in my opinion the Commission failed on the numerous objections of inadmissibility which it raised, Consequently, even if the Commission but also because in such a sensitive case could have — and in different circumstances there is an objective interest in the Court certainly should have — pursued its examining whether the institution exercised inquiries more thoroughly it is my opinion due diligence in investigating the request that in the present action the Commission submitted by the applicant.

On the basis of the above arguments I propose that the Court :

(a) declare the action admissible;

(b) dismiss the action on its merits;

(c) order the parties to pay their own costs.