# C_2006249EN.01000502.xml

| 14.10.2006 | EN | Official Journal of the European Union | C 249/5 |
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14.10.2006

EN

Official Journal of the European Union

C 249/5

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Appeal brought on 17 August 2006 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 6 June 2006 in Case T-10/02 Girardot v Commission

(Case C-348/06 P)

(2006/C 249/11)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: D. Martin, F. Clotuche-Duvieusart, Agents)

Appellant:

Other party to the proceedings: Marie-Claude Girardot

Other party to the proceedings:

Form of order sought

In its appeal, the appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of 6 June 2006 in Case T-10/02; |
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set aside the judgment of the Court of First Instance of 6 June 2006 in Case T-10/02;

| — | order the Commission to pay Ms Girardot the sum of EUR 23 917,40; |
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order the Commission to pay Ms Girardot the sum of EUR 23 917,40;

| — | order that the parties should bear their own costs in the appeal proceedings and in the proceedings before the Court of First Instance of the European Communities |
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order that the parties should bear their own costs in the appeal proceedings and in the proceedings before the Court of First Instance of the European Communities

Pleas in law and main arguments

The appellant bases its appeal on a single plea, alleging infringement of Article 236 EC and of the conditions governing the liability of the Commission. The appellant essentially claims that the Court of First Instance wrongly interpreted the notion of loss of an ‘opportunity’ to fill a post as being a notion equivalent to the loss of a ‘guarantee’ to fill a post — thus failing to have regard to the discretion traditionally accorded to the Commission in recruitment — and, consequently, used an erroneous method of calculation of the sum payable by the Commission to compensate for the loss of an opportunity to be recruited resulting from an unlawful decision of the Commission. Only actual and certain damage can give rise to compensation. However, in the present case, the only actual and certain damage caused to the interested party is that which results from the Commission's failure to consider her candidature, and not that which results from a hypothetical loss of earnings.

Moreover, the Commission notes that the criterion of loss of earnings used by the Court of First Instance to calculate the damage to be compensated is itself uncertain because if the interested party had, during the period in question, taken employment outside the Community Institutions which was better paid than the post which she could have obtained in the Commission, there would have been no loss of earnings to compensate. The method used by the Court of First Instance may therefore also lead to discrimination between candidates for the same recruitment on the basis of whether or not they occupy a post that is better paid than that to which they had the opportunity of being recruited.

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