JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

5 May 2009

Case F-27/08

**Manuel Simões Dos Santos**

**v**

**Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)**

(Civil service – Officials – Promotion – 2003 promotion procedure – Compliance with a judgment of the Community judicature – Merit points withdrawn without any legal basis – Principle that Community measures may not have retroactive effect – Disregard for the principle of res judicata – Unlimited jurisdiction – Order made by the Tribunal of its own motion for the payment of compensation – Non-material damage)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Simões Dos Santos seeks annulment of, in particular, decision No PERS‐01‐07
of the President of OHIM of 6 June 2007 awarding him promotion points under the 2003 promotion procedure, decision ADM‐07‐17
of 6 June 2007 interpreting decision ADM‐03‐35 relating to the career and promotion of officials and members of the temporary
staff, and the letter of 15 June 2007 from the appointing authority on the definitive awarding of 2007 promotion points.

**Held:**Decision No PERS‐01‐07 and OHIM’s letter of 15 June 2007 are annulled in so far as they imply that the balance of the applicant’s
merit points has disappeared, as acknowledged by decision PERS‐PROM‐39‐03rev1 on promotion, of 30 March 2004. OHIM is ordered
to pay the applicant the sum of EUR 12 000. The remainder of the application is dismissed. OHIM is ordered to bear its own
costs and to pay three quarters of the applicant’s costs. The applicant is ordered to bear one quarter of his own costs.

**Summary**

1.      *Officials – Actions – Action for the annulment of a confirmatory decision – Inadmissibility – Condition – Confirmed decision
to have become final*

*(Staff Regulations, Art. 91)*

2.      *Officials – Actions – Prior administrative complaint – Subject-matter*

*(Staff Regulations, Art. 90(2))*

3.      *Actions for annulment – Judgment annulling a measure – Effects – Annulment of a Community measure because of inadequate legal
basis – Adoption of a retroactive decision intended to cover the initial illegality – Exceptionally admissible – Conditions*

*(Art. 231, first para., EC)*

4.      *Officials – Actions – Judgment annulling a measure – Effects – Obligation to implement – Scope*

*(Art. 233 EC)*

5.      *Officials – Non-contractual liability of the institutions – Conditions – Injury*

6.      *Officials – Actions – Unlimited jurisdiction – Possibility for the Tribunal, on its own initiative, to order the defendant
institution to pay compensation*

*(Staff Regulations, Art. 91(1))*

1.      An action by an official for the annulment of a confirmatory decision is inadmissible only if the confirmed decision has become
final in relation to the person concerned for lack of any challenge by legal action within the prescribed time-limits. Otherwise,
that person is entitled to contest either the confirmed decision or the confirmatory decision or both.

(see para. 73)

See:

T-64/92 *Chavane de Dalmassy and Others* v *Commission* [1994] ECR‐SC I‐A‐227 and II‐723, para. 25; T-83/03 *Salazar Brier* v *Commission* [2005] ECR-SC I‐A‐311 and II‐1407, para. 17

2.      There is no provision of the Staff Regulations which requires an official to lodge a separate prior complaint for each administrative
decision he is contesting. Just as it is open to the official to lodge a number of complaints against the same decision provided
that he does so within the period of three months laid down in the Staff Regulations, there is no provision preventing an
official from contesting, in a single complaint, a number of decisions relating to him, as is clear from established practice
within the institutions.

(see para. 76)

See:

T-10/94 *Kratz* v *Commission* [1995] ECR-SC I‐A‐99 and II‐315, paras 19 and 20; T-44/97 *Ghignone and Others* v *Council* [2000] ECR-SC I‐A‐223 and II‐1023, para. 39

3.      Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time
before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate
expectations of those concerned are duly respected. It is thus possible for the administration, following a disputed annulment,
to adopt a measure with retroactive scope, provided that those conditions are satisfied.

A decision which, following the annulment by the Community judicature of an administrative decision for lack of a legal basis,
has retroactive scope is thus unlawful where the purpose relied on by the institution did not justify that retroactive effect
and where the legitimate expectations of the persons concerned by that measure were not respected.

(see paras 100, 101, 104-106, 113, 117)

See:

C-368/89 *Crispoltoni* [1991] ECR I‐3695, para. 17

4.      Under Article 233 EC, in order to comply with the judgment annulling a measure and to implement it fully, the institution
which adopted the measure is required to have regard not only to the operative part of the judgment but also to the grounds
which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning
of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to
be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative
part and which the institution concerned must take into account when replacing the annulled measure. Moreover, Article 233
EC requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same
irregularities as those identified in the judgment annulling the original act.

An institution which, in order to implement a judgment annulling a measure, gives an interpretation of that measure which
is directly contrary to that given by the Community judicature in that judgment thus infringes the principle of res judicata.

(see paras 120, 124)

See:

T-283/03 *Recalde Langarica* v *Commission* [2005] ECR-SC I‐A‐235 and II‐1075, paras 50 and 51

5.      The appointing authority has a wide discretion as to the choice of the officials to be promoted. It follows that, even where
it is established that the appointing authority has committed unlawful acts during the promotion procedure to the detriment
of an official, those matters, in themselves, cannot suffice, without denying the wide discretion of the appointing authority
in regard to promotion, for the purpose of concluding that, had those illegal acts not been committed, the official concerned
would in fact have been promoted and that the alleged material harm is therefore certain and real. The Staff Regulations do
not confer any right to promotion, even on officials who are eligible for promotion.

(see para. 133)

See:

T-22/99 *Rose* v *Commission* [2000] ECR-SC I‐A‐27 and II‐115, para. 37

6.      In order to ensure that an annulling judgment the implementation of which presents particular problems has a practical effect,
the Community judicature may use its unlimited jurisdiction in proceedings concerning pecuniary matters and order, even, if
necessary, on its own initiative, the defendant party to pay compensation for damage caused by its breach of administrative
duty.

(see paras 142, 144)

See:

F-46/07 *Tzirani* v *Commission* [2008] ECR-SC I‐A‐1‐0000 and II‐A‐1‐0000, para. 214