Joined Cases T 3/00 AND T 337/04, Pitsiorlas v Council and ECB

Community not liable for PhD candidate not finishing his thesis in time

This was a lengthy case. In short, the Court held that the refusal of the ECB to grant a Greek Phd candidate access to (documents concerning the) Basle/Nyborg Agreement infringed the duty to state reasons.

The Court held that the obligation to give reasons meant that the ECB should have responded to that request for access by stating the reasons why the arguments put forward by the applicant were not such as to enable the ECB to go back on its initial position that the documents at issue were confidential.

The Court found that in the decision of the ECB, the Governing Council did not gave any reason capable of refuting the applicant’s arguments

However, the most remarkable part of this case was the last part, concerning the non-contractual liability of the Community. The applicant argued that the refusal of the Council and ECB to grant him access had disrupted his timetable for writing his thesis.

The applicant submitted that this was still preventing him – three years and four months after the expiry of the deadline set for handing in his thesis (March 31, 2001) – from finishing it and submitting it to the Thessaloniki Faculty of Law.

He argued that had suffered material damage in the form of loss of revenue which he would have received by reasonably and appropriately using the doctorate which he would have obtained, in this case by securing a legal position within an international institution or body such as the ECB or the IMF.

The applicant claimed, second, that the delay of approximately three and a half years in finishing his thesis caused him “very serious non‑material damage consisting in:

– a significant prolongation of his anxieties concerning the completion of his thesis;

– the delay to his career and financial advancement;

– the impossibility of applying for job opportunities in Greece and, in particular, abroad, for which a doctorate was necessary;

– the postponement of a career in an academic environment which required a doctorate, the resulting uncertainty and the worsening of his situation, in view also of his age;

– the need to update his thesis repeatedly as a result of constant developments in the EMU and the resulting loss of time and fatigue;

– the psychological pressure suffered to this day concerning the completion of his thesis, the negative and ironic comments made about him and which continued to be made, and the obligation to have to give an explanation every time he was asked when his thesis would be completed;

– the loss of time and energy brought about by the proceedings before the Court of First Instance and the Court of Justice;

– the psychological strain caused by the length of the proceedings, the outcome of which was fundamental for his future.”

He argued that, in those circumstances, he should be awarded the sum of EUR 90 000 by way of compensation for the non‑material damage which he had suffered.

The Court of First Instance simply summed up the well known criteria for non-contractual liability (the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of).

The Court held that it was apparent from the applicant’s written submissions that the alleged loss of opportunity and potential earnings were themselves the consequence of an initial event, namely the failure to complete the thesis before the submission date and the subsequent failure to qualify for a doctorate in law.

That initial event could not be considered to be the direct cause of the alleged loss of opportunity or loss of potential earnings, in so far as the applicant did not establish that possession of a doctorate was a necessary precondition for obtaining a position with one of the bodies to which he referred.

Nor did the failure to complete and submitted the thesis before the deadline of March 31, 2001 appeared to be the direct consequence of the contested decisions refusing access.

Moreover, if loss of opportunity was capable of constituting reparable damage that damage must none the less be actual and certain if compensation was to be possible.

The Court held that the applicant had not established that the opportunity of which he was deprived, namely of gaining a position within the ECB or another body and of benefiting from the related financial advantages, was actual and certain in the sense that he would otherwise had had every chance of obtaining such a position, or at least a serious chance of doing so.

The Court concluded that the conditions which must be met in order for extra‑contractual liability to be incurred, concerning the existence of actual and certain damage and a direct causal link between that damage and the allegedly unlawful conduct of the defendants, were not in fact met and that the action for damages brought by the applicant must therefore be dismissed.

Text of Judgment

For more information on the Basle/Nyborg Agreement, see this document (in pdf).