Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
OFFICIALS - ACTIONS BROUGHT BY - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - CONDITION OF THE ADMISSIBILITY OF THE ACTION - EXCEPTION
( STAFF REGULATIONS OF OFFICIALS , ARTS 90 ( 2 ), 91 ( 2 ))
Summary
THE PURPOSE OF THE PROVISIONS OF THE STAFF REGULATIONS STATING THAT AN APPEAL TO THE COURT SHALL LIE ONLY IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT IS TO PERMIT AND ENCOURAGE AN AMICABLE SETTLEMENT OF DISPUTES WHICH ARISE BETWEEN OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES AND THE ADMINISTRATION . AN ACTION NOT PRECEDED BY A COMPLAINT IS ONLY ADMISSIBLE WHERE IT IS DIRECTED AGAINST A MEASURE , SUCH AS THE DECISION OF A SELECTION BOARD , WHICH THE APPOINTING AUTHORITY IS NOT EMPOWERED TO ANNUL OR AMEND .
Parties
IN CASE 168/83
LAURA PASQUALI-GHERARDI , A SECRETARY/SHORTHAND-TYPIST IN GRADE C 2 , STEP 3 , AT THE EUROPEAN PARLIAMENT , RESIDING AT 17 BOULEVARD ROYAL , LUXEMBOURG , REPRESENTED BY V . BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18 A RUE DES GLACIS ,
APPLICANT ,
V
EUROPEAN PARLIAMENT , REPRESENTED BY M . PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , RESIDING IN LUXEMBOURG , ASSISTED BY A . BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,
DEFENDANT ,
Subject of the case
APPLICATION FOR AN AWARD OF DAMAGES ON THE GROUND OF WRONGFUL ACTS OR OMISSIONS ON THE PART OF THE ADMINISTRATION ,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 2 AUGUST 1983 , MRS LAURA PASQUALI-GHERARDI , A SECRETARY/SHORTHAND-TYPIST AT THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS FOR A DECLARATION THAT THERE HAVE BEEN TWO WRONGFUL OMISSIONS ON THE PART OF THE EUROPEAN PARLIAMENT WHICH HAVE CAUSED A DETERIORATION IN THE APPLICANT ' S STATE OF HEALTH ; THE APPLICANT ALSO CLAIMS THAT SHE SHOULD BE AWARDED DAMAGES TOGETHER WITH INTEREST THEREON OR ALTERNATIVELY THAT THREE EXPERT WITNESSES SHOULD BE APPOINTED TO ASSESS THE DAMAGES AND - IF NECESSARY - TO GIVE AN OPINION UPON THE ADMINISTRATIVE DELAYS CAUSED BY THE DEFENDANT AND THE DETERIORATION IN THE APPLICANT ' S VISION AND GENERAL STATE OF HEALTH .
2 THE APPLICANT BEGAN WORK FOR THE EUROPEAN PARLIAMENT ON 17 OCTOBER 1979 AS AN ITALIAN-LANGUAGE SHORTHAND-TYPIST IN GRADE C 3 . ON 15 NOVEMBER OF THAT YEAR , SHE SUFFERED AN ACCIDENT AT WORK AS A RESULT OF WHICH HER LEFT EYE SUSTAINED IRREVERSIBLE DAMAGE . SHE RESUMED HER WORK ON 3 DECEMBER 1979 . ON 18 DECEMBER 1979 , SHE RETURNED TO ROME TO CONSULT AN EYE SPECIALIST AND STAYED AWAY ON SICK LEAVE FOR EIGHT MONTHS . AFTER THAT SHE RETURNED TO WORK .
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 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 REGULATIONS , 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 .
6 THE APPLICANT ALLEGES WRONGFUL CONDUCT AGAINST THE PARLIAMENT UNDER TWO HEADS : IN THE FIRST PLACE , IT DID NOT FORWARD THE INVALIDITY COMMITTEE ' S CONCLUSIONS TO HER ; IN THE SECOND PLACE , IT DID NOT CARRY OUT THE COMMITTEE ' S RECOMMENDATION THAT SHE SHOULD BE ASSIGNED TO A POST CORRESPONDING TO HER CAREER BRACKET BUT NOT INVOLVING A HIGH LEVEL OF VISUAL EFFORT . SHE CLAIMS THAT , AS THE YEARS HAVE PASSED , AND ESPECIALLY SINCE 1982 , HER STATE OF HEALTH HAS BEEN GETTING WORSE . FIRST OF ALL , THE STRESS SHE HAS BEEN UNDER AND THE PAIN-KILLING DRUGS ( ANALGESICS ) WHICH SHE HAS HAD TO TAKE HAVE DONE IRREPARABLE HARM TO HER GENERAL STATE OF HEALTH . FURTHERMORE , HER DIFFICULTIES OF VISION HAVE BECOME SO BAD THAT HER FORMER PASTIMES ( WATCHING TELEVISION , SPORT , THEATRE , READING , ETC .) ARE NOW DENIED HER AND SHE CAN NO LONGER DRIVE A CAR .
7 IN ITS DEFENCE , THE PARLIAMENT MAINTAINS THAT THE APPLICATION IS INADMISSIBLE SINCE IT WAS LODGED WITHOUT ANY PRIOR COMPLAINT HAVING BEEN MADE IN ACCORDANCE WITH ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS .
8 THE PARLIAMENT ADDS THAT IN ANY EVENT THE APPLICATION IS UNFOUNDED . IT STATES THAT IT HAS BEEN SHOWN THAT THE INVALIDITY COMMITTEE ' S RECOMMENDATION WAS FORWARDED TO THE APPLICANT ' S LAWYER AT HIS REQUEST . IN ADDITION , THE PARLIAMENT POINTS OUT THAT THE APPLICANT HAS NOT GIVEN ANY INDICATION OF HOW ITS DELAY IN MAKING THAT RECOMMENDATION AVAILABLE TO HER CAUSED HER TO SUFFER DAMAGE .
9 AS REGARDS THE APPLICANT ' S COMPLAINT THAT SHE WAS NOT ASSIGNED TO A POSITION BETTER SUITED TO HER VISUAL CAPACITY , THE DEFENDANT RECOGNIZES THAT IT IS UNDER A DUTY TO HAVE REGARD TO THE INTERESTS OF ITS OFFICIALS . THAT INDEED WAS THE REASON WHY THE APPLICANT WAS ALLOWED TO TAKE SICK LEAVE FOR LONG PERIODS IN 1980 AND ALSO LATER . EVEN BEFORE THE INVALIDITY COMMITTEE MADE ITS RECOMMENDATION ON 28 JANUARY 1983 , THE PARLIAMENT ' S ADMINISTRATION HAD ATTEMPTED TO FIND A POST WHICH WOULD BE SUITABLE FOR THE APPLICANT ' S STATE OF HEALTH . THE PARLIAMENT SAYS THAT IT IS STILL LOOKING FOR SUCH A POST , WHICH THE APPLICANT ' S LAWYER HIMSELF DESCRIBED AS A ' MIRACLE JOB ' .
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 .
Decision on costs
COSTS
12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
13 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
Full & Egal Universal Law Academy