(Judgment) 1 . Under Articles 90 and 91 of the Staff Regulations an action must be brought against an act having adverse effects, consisting either in a decision adopted by the appointing authority or in a failure by the appointing authority to adopt a measure prescribed by the Staff Regulations, and is admissible only if the official has previously submitted a complaint to the appointing authority and the complaint has been rejected by express decision or by implied decision.
The complaint through official channels and the express or implied rejection thereof form an integral part of a complex procedure and only represent one condition precedent for bringing the matter before the Court . In those circumstances, even if the application to the Court is formally directed against the rejection of the official’ s complaint, its effect is to bring before the Court the act adversely affecting the official in respect of which the complaint was submitted.
2. Acts preparatory to a decision do not adversely affect an official within the meaning of Article 90(2 ) of the Staff Regulations and can only be contested incidentally in an action against measures capable of being annulled.
The omission of an official from a list drawn up in the course of a promotion procedure is such an act . Although such an omission may have some influence on the promotion decision, it is not an independent decision but a preparatory act which is a necessary preliminary to the final decision on the promotions; the regularity of such preparatory acts may only be called into question in an application brought against the decision concluding the promotion procedure.
3. The conclusions submitted by an official to the Court must have the same subject-matter as those raised in the complaint and they may not contain heads of claim based on matters other than those relied on in the complaint . The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint but must be closely linked to it.
A claim for damages made for the first time before the Court following a complaint which merely sought an annulment of the decision allegedly having adverse effects is admissible . Such a complaint calls on the appointing authority to remedy the alleged illegality and take all necessary measures to place the applicant in the situation in which he would have been had the illegality not been committed . Those measures necessarily include redress for the harm which the applicant may have suffered by reason of the alleged illegality and which the adoption of a new act not vitiated by such illegality would not guarantee.
4. An official may not, by means of an action for damages, seek to obtain the same result as he would have obtained had he been successful in an action for annulment which he failed to commence in due time .
Citations:
C-346/87, [1989] EUECJ C-346/87
Links:
Jurisdiction:
European
Employment
Updated: 23 May 2022; Ref: scu.134750
