- CE, Sect., Case M.G.
- 06 November 2002
- Translated by:
- J T Brown
- Professor B. S. Markesinis
In view of petition no. 227147 filed in the secretariat of the Court of the Council of State on 15 November 2000 on behalf of M.G., M.G. invites the Council of State:
(i) to quash the implicit decision arising from the silence maintain by the Minister of Foreign Affairs relating to his claim for indemnification from the State for the harm caused him by the absence of a role and promotion;
(ii) to order the State to pay him 13,736,922 Francs with interest at the legal rate;
(iii) to order the State to pat him 15,000 Francs pursuant to Article 75-I of the Law of 10 July 1991;
In view of petition no. 244410 filed in the secretariat of the Court of the Council of State on 22 March 2002 on behalf of M.G.; M.G. invites the Council of State:
(i) the quash the decision of the Minister of Foreign Affairs, revealed by his pleading of 20 February 2002, to deprive him of any function, role or promotion as from 1986-1987;
(ii) to order the Sate to pay him 3,048.98 Euros pursuant to Article L.761-I of the Code of Administrative Justice;
Given that (1) the petition no.227147 of M.G. claims that the State indemnify him from the harm he considers to have suffered by reason of the absence of role and promotion between the end of his position of French Ambassador to Bolivia, in July 1986, and 27 February 1998, the date upon which he was allowed to exercise his rights to retire; (2) his petition no. 244410 claims the cancellation of the decision of the Minister of Foreign Affairs, which he claims was revealed by the enquiry concerning petition no. 227147, to deprive him of any role since his return from Bolivia; and (3) it is necessary to join these two petitions in order to deal with them in a single judgement;
Concerning the pleadings relating to petition no. 244410:
Concerning the refusal of the Minister of Foreign Affairs:
Given that (1) it appears from the papers in the case, and particularly from the pleadings in defence presented by the Minister of Foreign Affairs in case no 227417, that following the inspection of the French Embassy in Bolivia while M.G. was in his functions there, the Minister considered that the elements of the inspectors’ report, drafted in November 1985, relating to the personality and behaviour of this person authorised him “not to wish (…) to give him a new role as head of an establishment or any other role necessitating the animation and management of a team, which limited the possibilities of alternative roles within the Ministry in view of the high rank of this person”; (2) upon his return from Bolivia at the end of 1986, and having at that time exhausted his rights to take leave, M.G., a Class 1 Foreign Affairs Counsellor, received no role; (3) this situation continued until 27 February 1998, when this person was allowed to exercise his rights to retire; (4) the position thus adopted by the Administration, which was not changed until the end of the career of M.G., reveals the existence of a decision, confirmed several times, to give him no role or position; (5) in the light of the effect on the career and remuneration of this person, this decision causes him harm, and (6) M.G. may therefore be allowed to refer it to the Court for ultra vires (“excès de pouvoir”), even though he can produce no documentto support his petition;
Concerning the legality of the decision under attack:
Given that, subject to special regulations, a civil servant in activity derives from his status the right to receive, within a reasonable time, a role corresponding to his rank;
Given that (1) in maintaining M.G. in activity with pay but without a role for more than eleven years, whereas it is the duty of the Minister of Foreign Affairs either to offer him a role or, if he considers that he is not fitted for the functions which correspond to his rank, to commence proceedings for dismissal for professional incompetence, the Minister did not observe this rule; and (2) consequently, M.G. has grounds to claim the cancellation of this decision;
Concerning the pleadings relating to petition no.277417:
Concerning the principle and the extent of liability of the State:
Given that (1) the illegality of the decision of the Minister of Foreign Affairs amounted to a fault given rise to liability of the State towards M.G.; and (2) the latter has therefore the right to obtain damages for any direct and certain harm which may have resulted therefrom for him;
Given however that (1) although M.G. had the right, as it is said above, to receive, within a reasonable period, a role corresponding to his rank, it was also his duty, taking into account both his level in the administrative hierarchy and the length of the period during which he received a salary without carrying out any duty, to make approaches to his Service; (2) in this respect the petitioner limits himself to the production of a photocopy of a letter sent by him to the General Secretary of the Ministry of Foreign Affairs in April 1993, although he had been without a role for more than six years; and (3) in these conditions the State is to be releives of a third of its liability;
Concerning the defence of the four-year limitation period:
Given that pursuant to the provisions of Article 1 of the Law of 31 December 1968: “All claims which have not been paid within a period of four years from the first day of the year following that during which the claim arose are time-barred in favour of the State”;
Given that (1) where a dispute pits a civil servant against his Service in relation to the remuneration to which he has a right and the origin of the claim is thus to be found in the services carried out by that person, the claim is time-barred from the beginning of the fourth year following each year in respect of which his services should have been remunerated; (2) it is different if, as in this case, the claim of the civil servant relates to the indemnification of a decision illegally taken against him whose effect has been to deprive him of a role; and (3) in such a case, as in all others where there is a claim for indemnification for harm arising from the illegality of an administrative decision, the source of the claim must be attached, not to the year in which it was taken, but to that during which it was properly notified;
Given that (1) no decision depriving M.G. of a role has been notified to him, and (2) the Minister of Foreign Affairs has consequently no grounds upon which to plead the four-year time bar in relation to the claims made by M.G. whose source is the illegal absence of a role;
Concerning the harm:
Given firstly that (1) although M.G. has the right to an indemnity calculated by taking into account the difference between the amounts he has received and the remuneration he would have had if he had been given a role, he cannot nevertheless claim indemnification for the bonuses or extra payments linked to the actual carrying out of such functions, (2) the enquiry has shown that this difference, estimated by the Service to be 142,000 Euros, corresponds to the amount of the fixed sum payable for extra work which could be claimed, on the basis of the provisions then in force of the Decree of 19 January 1963, by civil servants posted to the Central Administration; (3) such a payment, determined on the basis the amount of extra work carried out by civil servants and the particular constraints suffered by them, is necessarily linked to the carrying out of the work; and (4) consequently, M.G. can make no claim under this head;
Given secondly that by giving him an indemnity of 40,000 Euros inclusive of interest to date, a fair assessment will have been made, on the one hand, of the harm suffered by the petitioner by reason of the loss of a real chance of promotion and of the consequences flowing therefrom for the amount of his pension, and, on the other hand, of the non-pecuniary loss suffered by him;
Article 1: The decision of the Minister of Foreign Affairs not to give any role to M.G. from 1986 to 1998 is quashed.
Article 2: The State is ordered to pay to M.G. an amount of 40,000Euros inclusive of interest to the day of this decision.
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