Opinion of the Advocate General — ECLI:EU:C:1997:367
Date: 1997-07-15
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases;Appeal - successful

Summary of the Judgment
1. Officials — Career — Promotion to a higher category — Competition required — Appoint­
ment taking effect from a date prior to success in a competition — Not permissible
(Staff Regulations, Art. 45(2))
2. Actions for annulment — Judgment annulling a measure — Effects — Obligations of the
administration — Compensation for damage, suffered by the applicant, linked to the annulled
measure and continuing after the annulment
(EC Treaty, Arts 176 and 215, second para.)
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SUMMARY — CASE C-259/96 P
3. Officials — Non-contractual liability of the institutions — Conditions — Fault on the part of
the administration — Damage — Causal link — Assessment of non-material damage — Cri­
teria
4. Appeals — Pleas in law — Plea alleging infringement of Article 48(2) of the Rules of Pro­
cedure of the Court of First Instance prohibiting the introduction of new pleas in the course of
proceedings — Account taken by the Court of First Instance of the replies to a question raised
as a measure of organisation of procedure — Whether permissible
(Rules of Procedure of the Court of First Instance, Arts 48(2) and 64(3))
5. Appeals — Pleas in kw — Inadequate grounds — No details as to the criteria adopted by the
Court of First Instance in order to fix the amount of the compensation awarded for damage
suffered — Appeal well founded
1. In accordance with Article 45(2) of the
Staff Regulations, an official may be pro­
moted from one category to another only
on the basis of a competition. Since suc­
cess in a competition is thus a conditio
sine qua non of appointment in a higher
category, that condition must be satisfied
on the date on which the appointment
takes effect. Article 45(2) of the Staff
Regulations therefore precludes an
appointment taking effect from a date
prior to success in a competition.
2. Article 176 of the Treaty requires not
only that the administration take the nec­
essary measures to comply with a judg­
ment of the Court but that it make good
further damage which may be caused by
the unlawful measure which has been
annulled, subject to the conditions laid
down in the second paragraph of Article
215 of the Treaty. Thus Article 176 of the
Treaty does not make compensation for
the damage dependent on the existence of
a new fault distinct from the original
unlawful measure which has been
annulled, but provides for compensation
for the damage which results from that
measure and which continues after its
annulment and compliance by the admin­
istration with the judgment whereby it
was annulled.
3. For the liability of the Community to be
incurred in the case of a claim for dam­
ages brought by an official, a number of
conditions must be satisfied as regards the
illegality of the conduct of the institution
of which he complains, the actual harm
suffered and the existence of a causal link
between that conduct and the damage
alleged to have been suffered.
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COUNCIL v DE NIL AND IMPENS
For the purposes of assessing any non-
material damage, aggravating circum­
stances characterising the specific situa­
tion must be taken into account.
4. Under Article 48(2) of the Rules of Pro­
cedure of the Court of First Instance, the
introduction of any new plea in law in
the course of proceedings is prohibited,
unless it is based on matters of law or of
fact which come to light in the course of
the procedure.
The fact that the Court of First Instance
took into account replies from one of the
parties to questions raised by way of
measures of organisation of procedure
pursuant to Article 64(3) of the Rules of
Procedure of the Court of First Instance,
the other party having had an opportu­
nity at the hearing to state its views on
that point, is not contrary to Article
48(2).
5. It is for the Court of First Instance alone
to assess, within the confines of the claim,
the method and extent of compensation
for the damage. However, in order for the
Court of Justice to be able to review the
judgments of the Court of First Instance,
those judgments must be sufficiently rea­
soned. That is not the case where, in a
judgment, the Court of First Instance has
not set out the criteria taken into account
for the purposes of determining the
amount of the compensation awarded for
the damage suffered.
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