JUDGMENT OF 5. 4. 1973 — CASE 11/72 GIORDANO v COMMISSION

In Case 11/72

THE COURT (Second Chamber) composed of: P. Pescatore (Rapporteur), President of Chamber, H. Kutscher and A. J. Mackenzie Stuart, judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Outline of facts

II — Procedure

III — Submissions of the parties

IV — Pleas and arguments

A — Admissibility

B — Merits

Grounds of judgment

Admissibility

Merits

Costs

I —. Outline of facts

II —. Procedure

III —. Submissions of the parties

IV —. Pleas and arguments

A —. Admissibility

(a). To the extent that it refers to the decision of the Commission of 21 January 1969, rejecting the claim of the applicant dated 12 October 1968, the action is inadmissible by the reason of the expiry of the time limit laid down in Article 91 of the Staff Regulations.

(b). To the extent that it refers to the decision of the Commission of 9 March 1971, rejecting the claim of the applicant dated 7 October 1970, its inadmissibility results from the expiry of the time limits laid down in Article 91 of the Staff Regulations and in Article 43 of the Statute (EEC) of the Court.

(c). To the extent that it has exclusively as object an action for damages based on the non-contractual liability of the Commission, its inadmissibility results from the expiry of the time limits laid down by the third sentence of Article 43 of the Statute (EEC) of the Court. The grounds invoked in support of the action have all been advanced in the claim dated 10 February 1971; by reason of the implicit rejection of this claim, the action should have been brought within a period of 4 months.

(d). The previous claims of the applicant, dated respectively 7 October 1970 and 10 February 1971, had the same object as the action. Without doubt they interrupted the period of limitation of 5 years; but equally they had the effect that, according to the third sentence of Article 43 of the Statute (EEC) of the Court, the action should have been begun within the period of 2 months provided by Article 173 of the EEC Treaty, or within the period of 4 months provided by Article 175. That is obviously not the position in the case in issue.

B —. Merits

(a). As for the question of fault, the applicant is of the opinion that, behind the inoffensive wording of the Commission's letter of 23 March 1967 which contains both the prolongation of his contract of service and notice of the definitive termination of his duties, is hidden a dismissal for disciplinary reasons, in respect of which the guarantees of defence offered by Article 76 of the Conditions of Employment of Other Servants have been evaded. The real grounds of this dismissal subsequently became manifestly apparent in the notification to the Court of Justice of adverse information.

(b). As for the damage, the applicant maintains that the behaviour of the Commission has caused serious damage of a pecuniary nature, bearing in mind the difficulties which he has encountered in re-entering the national employment market, to such an extent that he is still unemployed today.

(c). As for causality, the applicant considers that, even if the intention of the Court of Justice to appoint him had not been expressly dependant on a favourable opinion of the Commission, the unfavourable information supplied by the latter destroyed that intention; whatever may have been the other possible reasons for not proceeding with his appointment, information unfavourable to him sufficed by itself to prevent it.

(a). As to fault, the applicant attempts to raise to the level of general principles common to the laws of all Member States legal concepts which belong only to Italian administrative law and moreover are without relevance to the case in issue.

(b). Likewise, it is for the applicant to produce proof of the existence of damage.

(c). As for the relation of causality between fault and damage, an event such as the termination of the contract, foreseeable from the date when it was drawn up, cannot be connected, by a direct relation of causality, to possible unemployment in Italy.

1. The action, brought on the basis of the second paragraph of Article 215 of the EEC Treaty, seeks to establish the liability of the Community by reason of the circumstances under which the applicant after the non-renewal of his contract as an auxiliary agent, was unable to obtain a post which he solicited in the services of the Court of Justice, in consequence of unfavourable information forwarded by the Commission with regard to him.

2. According to the Commission the action is inadmissible since it is in reality directed towards obtaining judicial control of decisions which are now beyond attack, namely the non-renewal of the applicant's contract and the rejection by the Commission of financial claims which he had made on this account.

3. The applicant for his part asserts that his claim relates to making good the damage resulting from the fact that he has not been appointed by the Court of Justice because of damaging information supplied by the former employer who, not satisfied with having illegally broken the contract of employment, has by his subsequent behaviour prevented the creation of a contract of employment with another Community institution.

4. The terms of the application, as specified in the observations made in reply to the interlocutory application of the Commission relating to the admissibility of the action, define the object of the claim as referring to the award of damages by reason of the Commission's behaviour subsequent to the expiry of the contract of employment.

5. To the extent to which the action is concerned exclusively with liability properly so called, the Commission also bases its argument against the admissibility of the action on the expiry of the time limits laid down by Article 43 of the Statute (EEC) of the Court.

6. Such plea in bar rests on an erroneous interpretation of Article 43 of the Statute.

7. Henceforth it appears that in no case can the application of these provisions have the effect of cutting down the five-year period of limitation laid down by the first sentence of Article 43 of the Statute.

8. With a view to establishing the basis for the liability of the Community, the applicant must in the first place be able to prove the existence of a fact creating the damage, which is attributable to the action of one of the institutions.

9. However he has been unable to adduce any proof whatever, either as to the reality of his chance of recruitment, or as to the information allegedly forwarded by the Commission.

10. In addition, the plaintiff has produced a telegraphic communication which emanated from an official of the Court's administration, letting him know that his chances of obtaining a post deteriorated after enquiries made in Brussels.

11. The applicant has not produced, nor even offered to produce, any additional proof in support of his allegations.

12. Thus the action must be rejected inview of the applicant's failure to establish even the semblance of a fact capable of giving rise to liability on the part of the Community.

13. By Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

On those grounds Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially the second paragraph of Article 215; Having regard to the Staff Regulations, especially Article 90 and 91; Having regard to the Conditions of Employment of Other Servants, especially Article 73; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 43; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69, 70 and 91. THE COURT (Second Chamber) hereby:

1 Dismisses the action;

2 Orders each of the parties to bear its own costs.