John Allen and Others v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2011:744
• Court: General Court (European Union)
• Date: 14 December 2011
• Docket Number: T-433/10
• Celex Number: 62010TJ0433
• Procedure Type: Recours de fonctionnaires - non fondé

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

14 December 2011 (*)

(Appeal – Staff employed at the JET joint undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage suffered – Time-limits for instituting proceedings – Late submission – Reasonable period)

In Case T-433/10 P,

APPEAL against the order of the European Union Civil Service Tribunal (First Chamber) of 13 July 2010 in Case F-103/09 Allen and Others v Commission [2010] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that order set aside,

John Allen, residing in Horspath (United Kingdom), and the 109 other appellants whose names are listed in the annex, represented by K. Lasok QC and B. Lask, Barrister,

appellants,

the other party to the proceedings being

European Commission, represented by J. Currall and D. Martin, acting as Agents,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger (Rapporteur), President, J. Azizi and S. Papasavvas, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 11 July 2011,

gives the following

Judgment

1 By their appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellants, Mr John Allen and the 109 persons whose names are listed in the annex, request the Court to set aside the order of the Civil Service Tribunal (First Chamber) of 13 July 2010 in Case F-103/09 Allen and Others v Commission [2010] ECR I-A-1-0000 and II-A-1-0000 (‘the order under appeal’) by which the Tribunal dismissed the action as inadmissible on the ground that it was out of time.

Background to the dispute

2 The Joint European Torus (JET) joint undertaking was established by Council Decision 78/471/Euratom of 30 May 1978 (OJ 1978 L 151, p. 10) with the task of implementing the European Atomic Energy Community’s ‘Fusion’ programme, which provided for the construction, operation and exploitation of a large torus facility of the Tokamak type and its auxiliary facilities. Originally scheduled for a period of twelve years, the lifespan of JET was extended on three occasions: first, until 31 December 1992 by Council Decision 88/447/Euratom of 25 July 1988 approving an amendment to the Statutes of [JET] (OJ 1988 L 222, p. 4); next, until 31 December 1996 by Council Decision 91/677/Euratom of 19 December 1991 approving amendments to the Statutes of [JET] (OJ 1991 L 375, p. 9); and, lastly, until 31 December 1999 by Council Decision 96/305/Euratom of 7 May 1996 approving amendments to the Statutes of [JET] (OJ 1996 L 117, p. 9). JET ceased operations on 31 December 1999.

3 The appellants were employed and remunerated by third-party companies with which JET had concluded contracts and which had no legal connection with the European Commission.

4 By judgments of 5 October 2004 in Case T-144/02 Eagle and Others v Commission [2004] ECR II-3381 (‘Eagle’) and Case T-45/01 Sanders and Others v Commission [2004] ECR II-3315 (‘Sanders’), the General Court held that, by failing to offer posts as temporary staff members to a certain number of persons who worked for third-party employers with whom JET had concluded contracts, the Commission had committed a wrongful act entailing its liability. The Court therefore ordered the Commission to make good the financial loss which those persons had each suffered as a result of the fact that they had not been recruited as members of the Commission’s temporary staff during the time they worked at JET. It none the less requested the parties to seek agreement within a period of six months from notification of the judgment as to the amount of compensation to be paid in order to make good that loss. In the absence of agreement, the parties were to transmit to the Court within the same period a statement of their views with supporting figures.

5 By judgments of 12 July 2007 in Case T-144/02 Eagle and Others v Commission [2007] ECR II-2721 and in Case T-45/01 Sanders and Others v Commission [2007] ECR II-2665, the General Court determined the amount of compensation the Commission was required to pay to each of the victims of the unlawful conduct referred to in paragraph 4 above.

6 By a joint letter of 6 February 2009, the appellants submitted a request to the Commission on the basis of Article 90(1) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), seeking compensation for the material loss which they had each suffered as a result of the fact that they were not recruited as temporary staff members during the time they worked at JET.

7 By letter of 30 April 2009, the Commission rejected that request on the ground that the appellants had not submitted their claim for compensation within a reasonable period.

8 By a joint letter of 18 June 2009, the appellants submitted a complaint on the basis of Article 90(2) of the Staff Regulations.

9 By decision of 25 September 2009, the Commission rejected that complaint (‘the decision rejecting the complaint’).

Procedure at first instance and order under appeal

10 By an action brought before the Civil Service Tribunal on 22 December 2009, the appellants sought: (i) annulment of the decision rejecting the complaint; (ii) a declaration that they had a right to be treated, and should have been treated, as ‘other personnel’ and/or recruited as such, in accordance with Article 8 of the JET Statutes; (iii) a declaration that the Commission discriminated against them without objective justification, during the time they were working at JET, as regards their remuneration, pension rights and related benefits, and security of future employment; (iv) compensation for the loss of earnings, pension and related benefits and privileges occasioned by the aforesaid breach of Community law, including interest thereon as appropriate; and (v) an order that the Commission should pay the costs.

11 By a separate document sent to the Registry of the Civil Service Tribunal, the Commission raised three pleas of inadmissibility. In that application for a decision not going to the substance of the case, filed pursuant to Article 78 of the Rules of Procedure of the Civil Service Tribunal, the Commission contended that the Tribunal should dismiss the action as inadmissible and order the applicants to pay the costs.

12 The applicants submitted their observations on the pleas of inadmissibility.

13 By the order under appeal, the Civil Service Tribunal dismissed the action as inadmissible and ordered the applicants to pay all the costs. It held in essence that the claim for damages, which was lodged more than five years after they became aware of the facts, had not been submitted within a reasonable period.

Procedure before the General Court and forms of order sought

14 By document lodged at the Registry of the General Court on 20 September 2010, the appellants brought the present appeal.

15 The Commission lodged its response on 15 December 2010.

16 The written procedure was closed on 13 January 2011.

17 The appellants claim that the Court should:

– allow the appeal;

– set aside the order under appeal;

– reject the first and second pleas of inadmissibility raised by the Commission;

– order the Commission to pay the costs.

18 The Commission contends that the Court should:

– dismiss the appeal;

– order the appellants to pay the costs.

19 By letter of 7 February 2011, the appellants submitted a reasoned application under Article 146 of the Rules of Procedure for an oral hearing.

20 After hearing the report of the Judge-Rapporteur, the General Court (Appeal Chamber) decided to allow the appellants’ application and opened the oral procedure.

21 The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 11 July 2011.

Law

22 The appellants put forward three pleas in support of their appeal. The first plea alleges that there is no obligation to bring a claim for damages within a reasonable period. The second plea, put forward in the alternative, alleges that the duration and start point of a reasonable period for bringing a claim for damages were wrongly defined. The third plea alleges an error in law consisting in failure to rule on the second plea of inadmissibility.

First plea: no obligation to bring a claim for damages within a reasonable period

23 The first plea comprises two parts, alleging (i) an error in law in the interpretation of Article 90(1) of the Staff Regulations and (ii) the erroneous nature of the four factors considered by the General Court in Eagle and Sanders and also by the Tribunal in the order under appeal (see paragraph 34 of the order under appeal).

First part: an error in law in the interpretation of Article 90(1) of the Staff Regulations

24 The appellants claim in essence that the Civil Service Tribunal erred in law in holding that the fact that the Staff Regulations do not expressly set a time-limit for the purpose of bringing an action for damages based on misconduct attributable to the European Union does not have the effect of allowing an individual entitled to bring proceedings unlimited time within which to bring an action before the court. In their view, the legislature took a considered decision not to lay down a time-limit for the submission of a request under Article 90(1) of the Staff Regulations.

25 The Commission disputes the appellants’ arguments.

26 In that regard, it must be held that the appellants’ argument that the absence of a time limit automatically means that it is possible to bring a claim for damages without any time-limit cannot succeed. It should be noted on that point that, contrary to what the appellants contend, there is an obligation to act within a reasonable time in all cases except those where the legislature has expressly excluded or expressly laid down a...