Judgment_paragraph 7 · Livio Missir Mamachi di Lusignano v European Commission (T-401/11 P)

7As the Commission had raised, in particular, two pleas of inadmissibility concerning the appellant’s heads of claim relating to reparation for non-material damage, alleging, first, that the claim for compensation of 25 February 2008 contained no application for reparation for non-material damage and, second, that the complaint of 10 September 2008 also contained no application for reparation for the non-material damage suffered by the appellant in person, the Civil Service Tribunal answered those pleas as follows, at paragraphs 82 to 91 of the judgment under appeal:82 It must be recalled that, within the system of actions provided for in Articles 90 and 91 of the Staff Regulations [of Officials of the European Communities], where an action does not contain any claim for the annulment of a particular measure but claims compensation for damage allegedly caused by a series of wrongful acts or omissions which, because they have no legal effect, cannot be described as acts adversely affecting an official, it is imperative that the administrative procedure commence with a request by the person concerned that the appointing authority compensate him for the damage, and be followed where appropriate by a complaint against the rejection of such request, failing which a subsequent action will be inadmissible (see, in particular, the judgment of 13 July 1995 in Case T-44/93 Saby v Commission [1995] ECR-SC I-A-175 and II-541, paragraph 31).83 Moreover, it is settled case-law that the relief sought in the application to the Courts of the European Union must be the same as that set out in the complaint and the application may contain only heads of claim based on the same cause of action as those raised in the complaint, and that those heads of claim may be developed before the courts by means of pleas and arguments which did not necessarily appear in the administrative complaint but are closely linked to it (see, for example, the judgment of 23 April 2002 in Case C-62/01 P Campogrande v Commission [2002] ECR I-3793, paragraph 34).84 The Tribunal recently held that the concept of “cause of action” must be given a broad interpretation (judgment of 1 July 2010 in Case F‑45/07 Mandt v Parliament, paragraph 119). Although this guideline was established by the Tribunal with regard to an action for annulment, that does not mean that it cannot be applied by analogy to an action for damages, subject to the specific nature of the latter case being respected. However, in cases relating strictly to compensation, the concept of “cause of action” is not defined by reference to “heads of claim” within the meaning of the case-law cited in the preceding paragraph but to “heads of damage” raised by the official concerned in his claim for compensation. It is these heads of damage that determine the subject-matter of the compensation sought by the official and, consequently, the relief sought by the claim on which the administration must rule.85 It follows from the considerations set out in the three preceding paragraphs that claims for compensation based on different heads of damage are admissible before the Tribunal only if they have been preceded first by an application to the administration seeking the same relief and based on the same heads of damage and then by a complaint against the decision of the administration that ruled, expressly or impliedly, on that application.86 That does not prevent the official concerned from altering the amount of the claims stated in his application to the administration, in particular if the loss worsens further or if the extent of the damage is not known or cannot be assessed until after the application has been lodged (see, to that effect, on the possibility of quantifying a loss at the application stage, the judgment of 23 September 2004 in Case C-150/03 P Hectors v Parliament [2004] ECR I-8691, paragraph 62), but on condition that the heads of damage for which he seeks compensation were listed in the application.87 In the present case, whereas the applicant seeks reparation for the damaging consequences of the same facts as those referred to in his application of 25 February 2008, his claims for damages are based on reparation for the various non-material losses allegedly caused to himself, his deceased son and his grandchildren.88 It is common ground that in the request for compensation contained in his letter of 25 February 2008 the applicant sought only reparation for material damage and did not raise the heads of non-material damage alleged before the Tribunal.89 It is true that subsequently, in his complaint, the applicant requested reparation not only for material damage but also for non-material damage, which enabled the administration to adopt a position on these heads of damage in the decision rejecting the complaint before the action was brought. However, this part of the decision rejecting the complaint must be regarded as the first decision taken by the administration on the said heads of damage. The applicant did not lodge a complaint against that decision, as he should have done, and therefore failed to comply with the two-stage administrative procedure which determines the admissibility of claims for compensation based on these heads of damage.90 The line of argument based on the judgment of 26 January 1989 in Case 224/87 Koutchoumoff v Commission [1989] ECR 99, which the applicant developed at the second hearing, cannot be accepted. Although the Court of Justice acknowledged in that judgment that an official was permitted to submit claims for damages for the first time before the Court, it did so on the ground that the challenge to the lawfulness of the act adversely affecting the official, which was set out in the complaint, could imply a request for damages for the loss caused by that act. However, the present dispute relates solely to damages and is not associated with a challenge to the lawfulness of a decision adversely affecting the applicant.91 As a consequence, the claims for reparation for non-material damage must, in the present case, be dismissed as inadmissible, without there being need to examine the other pleas of inadmissibility raised against them.’