Report for the Hearing delivered in Case 224/87

I — Facts and procedure

A — Facts

(1). Jean Koutchoumoff, who was born on 20 November 1930, entered the employment of the Commission of the European Communities on 27 June 1958 in the Directorate-General for Personnel and Administration. He was subsequently assigned, in turn, to the Directorate-General for Transport, the Directorate-General for Internal Market and Industrial Affairs, and then, from 1 May 1984 onwards, to the ‘Strategy of Information Technology and Telecommunications’ Division of Directorate-General XIII.

(2). Mr Koutchoumoff complains that he was the victim of an assault by his immediate superior, Mr Wilkinson, the head of division. The applicant states that he reported to Mr Wilkinson's office at the latter's request and was asked by Mr Wilkinson to read and sign, in the latter's presence, documents relating to his periodic report. Mr Koutchoumoff refused to do so, whereupon Mr Wilkinson became violent and tried to hinder Mr Koutchoumoff in his attempt to leave the office, seizing him by the shoulders to detain him. As a result of the altercation, the file that Mr Koutchoumoff was holding was snatched from him and the contents were scattered over the floor. When the applicant tried to leave, Mr Wilkinson attempted to strike him and followed him out of the office and then into the street. The applicant finally managed to escape by jumping into his car, while Mr Wilkinson tried to break in.

B — Course of the procedure

By a memorandum of 4 June 1986, Mr Koutchoumoff asked the administration to ‘bring the matter before the Disciplinary Board’. The administration made no response, and Mr Koutchoumoff submitted a complaint on 27 November 1986 based on Article 90 of the Staff Regulations, in which he referred to his memorandum of 4 June. The only result of that complaint, received by the Commission on 22 December 1986, was that Mr Valsesia, Director for Personnel, interviewed the applicant and Mr Wilkinson; the applicant therefore brought an action before the Court by an application received at the Registry on 20 July 1987.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

a) annul the Commission's implied rejection of his request for the commencement of disciplinary proceedings against his head of division;

b) order the Commission to afford him the protection provided for under Article 24 of the Staff Regulations of Officials;

c) order the Commission to compensate him for the damage caused by its conduct;

d) consequently, order the Commission to pay him ECU 6050 in compensation for damage suffered and to pay the costs of the action.

The Commission contends that the Court should:

a) declare the application inadmissible, or at least unfounded,

b) make an order as to costs in accordance with the applicable provisions.

III — Summary of the arguments of the parties

A — The objections of inadmissibility raised by the Commission of the European Communities

(1). The Commission contends first that, in accordance with the established case-law of the Court, the application is inadmissible inasmuch as it is directed against the implied rejection of the applicant's complaint of 27 November 1986, since that rejection merely confirms the decision against which the complaint was made. The applicant contends for his part that the application is undoubtedly admissible with regard to its principal objects, that is to say the annulment of the Commission's refusal to afford the official concerned the assistance provided for under Article 24 and the claim for compensation for damage suffered.

(2). The Commission contends, secondly, that in his complaint the applicant did not rely expressly on Article 24 of the Staff Regulations, but confined himself to requesting that disciplinary action be taken against Mr Wilkinson; furthermore he has never submitted a claim for damages to the administration. Mr Koutchoumoff replies, first of all, that the request for disciplinary action to be taken must necessarily be interpreted as a request for the protection provided for under Article 24 of the Staff Regulations; requests of that kind must, in accordance with established case-law, be interpreted flexibly. He notes, in addition, that the assistance provided for under Article 24 can be given automatically without a request having been submitted. With regard to the question of damages, he states that Article 24 of the Staff Regulations itself makes provision in its second subparagraph for payment of compensation to officials for damage suffered as a result of attacks to which they are subjected. The applicant maintains, finally, that according to the case-law of the Court, when an application for damages is made only in the event of the annulment of the decision contested at the same time, that application need not have been the subject-matter of a prior complaint to the administration.

(3). The Commission contends, finally, that it is not for the Court to order the administration to institute disciplinary proceedings. Therefore the action is inadmissible also from that point of view. The applicant replies that the opening of disciplinary proceedings is not the only purpose of his action and that, consequently, that action cannot be declared inadmissible.

B — Substance

The Commission strongly protests against certain assertions made in the applicant's pleadings which it considers defamatory. One such assertion, according to the Commission, is Mr Koutchoumoff's statement to the effect that the reason why he has not put forward the name of any witnesses to the altercation is to prevent pressure being exerted by the administration on those witnesses. A second such assertion is the statement to the effect that the assault to which the applicant was subjected is ‘part of the Commission's new administration, and personnel management policy consisting of mental harassment, public humiliation and provocation of all kinds as described in the memoranda’ of various union organizations. Finally, there are the statements according to which possible witnesses did not want their names disclosed because they feared pressure from their superiors.

(1) Breach of the duty to afford assistance provided for under Article 24 of the Staff Regulations

The applicant argues that Article 24 of the Staff Regulations protects officials not only against attacks to which they may be subjected by third parties but also against those to which they may be subjected by other officials. The applicant claims to have been subjected to a clear assault by his immediate superior and he emphasizes that he is in no way to blame for the latter's behaviour.

According to the Commission, on the other hand, Mr Koutchoumoff himself was the cause of the events, the substance of which, moreover, the Commission challenges. The Commission claims that since it had not been possible to hand over the plaintiff's reports for the years 1981 to 1985, Mr Wilkinson tried to do it personally. Those periodic reports noted Mr Koutchoumoff's absenteeism and his total lack of interest in his work. In fact, Mr Wilkinson simply tried to hold back Mr Koutchoumoff so that he could sign an acknowledgement of receipt of his periodic reports, as prescribed by the guide to staff reports. Mr Koutchoumoff once again tried to evade his obligations and said that he had to go to the Medical Centre; Mr Wilkinson followed him to satisfy himself that that was the case. He found that the applicant was simply trying to return to his car in order to leave work.

Mr Koutchoumoff, however, emphatically denies that his head of division wanted to hand over to him his staff reports during that interview. He was, he says, quite simply the victim of an assault, witnessed by various people whose names, however, he refuses to reveal for the present, with two exceptions — Mr Pappalardo and Mr Carboni — because of the pressure to which they could be subjected. The applicant reserves the right to disclose the names of the other witnesses during the oral procedure before the Court.

Finally, the Commission points out that although the applicant maintains that he suffers from a heart condition and that shortly after the episode his doctor diagnosed a heart attack, the only document submitted in that regard is a medical certificate dated 16 December 1987 recording an examination of Mr Koutchoumoff on 4 June 1986 during which simple precordial pain and extrasystoles were observed. They are commonplace stress-related ailments which cannot be considered to have been caused by the events of 2 June 1986.

(2) Breach of the duty to have regard for the welfare of an official

a) The applicant insists on the reluctance shown by the Commission in investigating his complaint. He emphasizes that he made his initial request on 4 June 1986 and never received a response. He had to submit a complaint on 27 November, which, however, was not registered until 22 December, and it was not until 12 May 1987 that the Director for Personnel interviewed him and Mr Wilkinson in order to investigate the facts. That shows that the Commission did not endeavour to ascertain the facts so as to take the necessary steps, as it had a duty to do.

b) The Commission maintains that it did not fail in its duty. On the very day the episode occurred, Mr Wilkinson sent a memorandum to the competent department which was then forwarded to the Director for Personnel. Although the Commission did not reply to the applicant's complaints, that is because, having been unable to deliver his staff reports to him, on 26 October 1986 it sent them to him by registered letter with acknowledgement of receipt, giving him notice that unless he contested the reports they would be regarded as definitive and the matter would be considered closed. The Commission adds that Mr Koutchoumoff did not contribute in any way to a speedy resolution of the matter, since he did not put forward any evidence and, in particular, did not provide the administration with the names of the witnesses who could have corroborated his version of events. Moreover, the applicant refused to give any particulars at all during the interview he had on 12 May 1987 with the Director for Personnel. He could not, therefore, accuse the administration of having failed in any way in its duty to have regard for his welfare by being slow in settling the matter and by not endeavouring to ascertain the facts surrounding the episode.

(3) The claim for damages

a) Mr Koutchoumoff claims that the conduct of the Commission and of its employee caused him damage. That damage must, he says, be assessed as follows: ECU 50 per day for his incapacity for work following the incident, compensation for mental anguish and nonmaterial damage related to that incapacity (that is to say ECU 1050 for three weeks' incapacity); ECU 2500 compensation for the nonmaterial damage occasioned by Mr Wilkinson's conduct, which took place before witnesses and was spread by rumour; ECU 2500 in respect of the Commission's failure to afford assistance, which could only exacerbate the damage caused to the applicant's reputation and honour.

b) With regard to the behaviour of Mr Wilkinson, the Commission argues first that as it was not possible to establish the truth of Mr Koutchoumoff's statements, no misconduct on the part of Mr Wilkinson can be proven. Second, the Commission maintains that even if an altercation did take place, the second subparagraph of Article 24 of the Staff Regulations provides that an official may be compensated only ‘in so far as the official did not either intentionally or through grave negligence cause the damage and has been unable to obtain compensation from the person who did cause it’. It was Mr Koutchoumoff's conduct alone which was the cause of the incident of 2 June 1986. The Commission points out, moreover, that in his complaints to the administration the applicant never made any mention of a heart condition and that his application on that head thus constitutes a new application; in the application itself, the applicant did not claim damages for incapacity, compensation for mental anguish and nonmaterial damage, since he confined himself to applying for compensation for damage occasioned by the conduct of the administration, which failed to afford him protection under Article 24 of the Staff Regulations.

With regard to the claim for damages, inasmuch as it is founded on the Commission's misconduct, the Commission argues first that in his application Mr Koutchoumoff confined himself to asking for ECU 2500 in damages, and by raising the amount to ECU 6050 he is therefore making a new application. The Commission adds that as the claim for compensation is related to the application for annulment, if the latter is inadmissible then the former must also be inadmissible.

Finally, the Commission argues that as the facts advanced by Mr Koutchoumoff have never been verified, it was not obliged to take disciplinary measures against his superior and that it has therefore not been guilty of misconduct from that point of view. It notes, moreover, that the plaintiff has never claimed damages from Mr Wilkinson personally, although the second subparagraph of Article 24 of the Staff Regulations stipulates that the Community is to provide compensation only in so far as the victim has been unable to obtain compensation from the person who caused the damage.

As a purely subsidiary submission the Commission states that it does not object to Mr Pappalardo giving evidence, but that the other witnesses should not be heard inasmuch as the persons in question were not present during the incident which gave rise to the dispute.

Since the applicant's action is manifestly inadmissible and unfounded, and taking into consideration remarks appearing in the applicant's reply which the Commission regards as unacceptable, the Commission also asks that the applicant be ordered to pay all the costs.

F. Grévisse

Judge- Rapporteur

1 Language of the case: French