Judgment — ECLI:EU:T:2003:346
Date: 2003-12-17
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Act adversely affecting the official;Conditions of admissibility;Effect of the outcome of the action for annulment;Effects of a judgment annulling a measure
Procedure: Action for damages - unfounded;Staff cases - successful

SUMMARY - CASE T-324/02 
Held: The decision contained in the letter of 30 January 2002 of 
the Director General of Directorate General A of the 
Council to terminate the procedure under Article 29(1) (a) 
of the Staff Regulations for filling the post of Language 
Adviser in the English and Irish Language Division and to 
proceed to the next stage, namely the organisation of an 
internal competition under Article 29(1) (b) of the Staff 
Regulations, is annulled. The applicant's application for 
compensation is dismissed. The Council is ordered to pay 
the costs. 
Summary 
1. Officials - Actions — Act adversely affecting an official - Definition -
Preparatory act - Decision, deemed to be in compliance with an annulling 
judgment, not to follow the procedure laid down in Article 29(1) (a) of the Staff 
Regulations to fill a vacant post, but to follow the procedure under Article 29(1)(b) 
— Admissibility 
(Staff Regulations, Arts 29(1) and 90(2)) 
2. Officials - Actions - Annulling judgment - Effects - Obligation to adopt 
measures to comply with a judgment - Scope - Consideration of both the grounds 
and the operative part of the judgment - Annulment of a decision of the appointing 
authority rejecting a candidature at the end of the phase of the recruitment 
procedure provided for in Article 29(1) (a) of the Staff Regulations - Obligation to 
re-examine the candidature - Immediate progression to an internal competition, the 
next phase of the recruitment procedure - Unlawful 
(Art. 233 EC; Staff Regulations, Art. 29(1)) 
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MCAULEY v COUNCIL 
3. Officials - Actions - Action for damages - Independent of action for annulment 
- Admissible notwithstanding failure to follow a pre-litigation procedure consistent 
with the Staff Regulations - Condition - Claim for compensation directly 
connected with an application for annulment 
(Staff Regulations, Arts 90 and 91) 
4. Officials - Actions - Annulling judgment - Effects - Obligation to adopt 
measures to comply with a judgment - Scope - Annulment of a decision of the 
appointing authority rejecting the applicant's candidature and appointing another 
person to the post in question - Obligation to appoint the applicant - None 
(Art. 233 EC; Staff Regulations, Art. 29(1)) 
5. Officials - Actions - Action for damages - Annulment of the contested unlawful 
measure - Appropriate compensation for non-material damage 
(Staff Regulations, Art. 91) 
1. Only acts or decisions producing binding legal consequences likely to affect the 
applicant' s interests by significantly changing his legal situation may be the subject 
of an action for annulment. In the case of acts or decisions adopted by a procedure 
involving several stages, in particular where they are the culmination of an internal 
procedure, only a measure definitively establishing the position of the institution at 
the conclusion of that procedure, and not a provisional measure intended to pave the 
way for the final decision, is generally challengeable. Moreover, as regards staff 
cases, acts preparatory to a decision do not adversely affect officials within the 
meaning of Article 90(2) of the Staff Regulations and therefore cannot be contested 
incidentally in an appeal against measures capable of being annulled. 
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SUMMARY - CASE T-324/02 
However, in so far as a decision to progress from the procedure in Article 29(1) (a) 
of the Staff Regulations to the procedure in Article 29(1) (b) in order to fill a vacant 
post is a measure to comply with a judgment of the Community judicature annulling 
a decision of the appointing authority to reject the applicant's candidature at the end 
of the phase of the recruitment procedure provided for in Article 29(1)(a) and 
appointing another person to the post in question, the applicant must be regarded as 
entitled to bring an action for annulment of that decision if the action is for a 
declaration that the decision was taken in disregard of the defendant institution's 
obligations under Article 233 EC. 
(see paras 28, 34) 
See: 60/81 IBM v Commission [1981] ECR 2639, para. 9; T-6/93 Pérez Jiménez v 
Commission [1994] ECR-SC I-A-155 and II-497, para. 34; T-586/93 Kotzonis v ESC 
[1995] ECR II-665, paras 28 and 29 
2. In the event of an act of an institution being annulled by one of the Community 
courts, it is for the institution, pursuant to Article 233 EC, to take the necessary 
measures to comply with the judgment. In order to comply with a judgment granting 
annulment and to give it full effect, the institution which issued the annulled 
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. 
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MCAULEY v COUNCIL 
As regards the effects of the annulment of a measure granted by one of the 
Community courts, the annulment takes effect ex tunc and thus has the effect of 
retroactively eliminating the annulled measure from the legal system. The defendant 
institution is required, by virtue of Article 233 EC, to take the necessary measures 
to reverse the effects of the illegalities established, which, in the case of an act that 
has already been executed, involves restoring the applicant to the legal position he 
was in prior to that act. 
Where the Community court has identified manifest errors in the assessment of the 
candidatures of the applicant and of the person appointed to the post in question 
during the procedure set out in Article 29(1) (a) of the Staff Regulations for filling 
a vacant post, and has annulled the appointing authority's decision to reject the 
applicant's candidature and to appoint that other person to the post in question, the 
appointing authority must be regarded as not complying properly with the annulling 
judgment if it decides to proceed to the next phase of the recruitment procedure, the 
organisation of an internal competition, without having first re-examined the 
applicant's candidature under Article 29(1) (a) of the Staff Regulations in the light 
of the operative part and the grounds of the judgment. If, in order to fill a vacant 
post, the appointing authority decides, within its discretionary power, to examine 
the comparative merits of candidates for promotion or transfer, it is not until it has 
carefully examined the candidatures of officials put forward for promotion or 
transfer that it can decide to proceed to the next phases of the recruitment 
procedure. 
(see paras 56, 57, 68-70, 81) 
See: 22/70 Commission v Council [1971] ECR 263, para. 60; 92/78 Simmenthal v 
Commission [1979] ECR 777, para. 32; 21 /86 Samara v Commission [1987] ECR 795, 
para. 7; 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 
2181, para. 30; C-8/99 P Gómez de Enterríay Sanchez v Parliament [2000] ECR I-6031, 
paras 19 and 20; T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission 
[1995] ECR II-2305, para. 60; T-481/93 and T-484/93 Exporteurs in Levende Varkens 
and Others v Commission [1995] ECR II-2941, paras 46 and 47; T-3/97 Campogrande 
v Commission [1998] ECR-SC I-A-89 and II-215, para. 65; T-47/97 Plug v Commission 
[2000] ECR-SC I-A-119 and II-527, para. 58; T-171/99 Corns UK v Commission [2001] 
ECR II-2967, para. 50; T-372/00 Campolargo v Commission [2002] ECR-SC I-A-49 and 
II-223, paras 92 and 109; T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] 
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SUMMARY — CASE T-324/02 
ECR-SC I-A-193 and II-987, para. 36; T-119/99 Hoyer v Commission [2002] ECR-SC 
I-A-239 and II-1185, para. 35 
3. Under the system of remedies established by Articles 90 and 91 of the Staff 
Regulations, an action for damages, which constitutes an autonomous remedy, 
separate from the action for annulment, is admissible only if it has been preceded 
by a pre-litigation procedure in accordance with the provisions of the Staff 
Regulations. That procedure differs according to whether the damage for which 
reparation is sought results from an act having adverse effects within the meaning 
of Article 90(2) of the Staff Regulations or from conduct on the part of the 
administration which contains nothing in the nature of a decision. In the first case 
it is for the person concerned to submit to the appointing authority, within the 
prescribed time-limit, a complaint directed against the act in question. 
In the second case, on the other hand, the administrative procedure must commence 
with the submission of a request, within the meaning of Article 90(1) of the Staff 
Regulations, for compensation and continue, where appropriate, with a complaint 
against the decision rejecting that request. 
Where there is a direct link between the action for annulment and the claim for 
compensation, the latter may be declared admissible as incidental to the action for 
annulment, without necessarily having to be preceded by a request to the appointing 
authority for compensation for the damage allegedly suffered and by a complaint 
challenging the validity of the implied or express rejection of the request. On the 
other hand, where the alleged damage does not arise out of the act whose annulment 
is sought but from a series of alleged wrongful acts and omissions on the part of the 
administration, it is mandatory that the pre-litigation procedure should commence 
with a request for the appointing authority to make good that damage. 
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MCAULEY v COUNCIL 
In addition, where there is a direct link between an action for annulment and an 
action for damages, if the action for damages is brought separately it is still 
admissible even though it might also have been brought as ancillary to the action for 
annulment, without having been preceded by a request to the appointing authority 
for compensation for the damage allegedly suffered and a complaint challenging the 
validity of the implied or express rejection of the request. 
(see paras 91-92) 
See: T-15/96 Liao v Council [1997| ECR-SC I-A-329 and II-897. paras 57 and 58: 
T-78/96 and T-170/96 W v Commission (1998) ECR-SC I-A-239 and II-745. para. 159: 
T-378/00 Morello v Commission [20021 ECR-SC I-A-311 and II-1497. para. 102 
4. Under Article 29(1) of the Staff Regulations, the appointing authority must be 
scrupulous in examining candidatures for promotion or transfer to fill a vacant post, 
but it is not bound absolutely to proceed by way of promotion or transfer, even 
where there are suitable candidatures from officials who satisfy all the conditions 
and requirements set out in the vacancy notice. It follows that if, after a judgment 
annulling a decision of the appointing authority to reject the applicant's candidature 
and to appoint another person to the post in question, the appointing authority was 
bound to re-examine the applicant's candidature in order to observe the order of 
priority set out in Article 29(1) of the Staff Regulations, it was nevertheless not 
bound to appoint the applicant. 
(see para. 99) 
Sec: C-174/99 P Parliament v Richard [2000] ECR I-6189. paras 38 to 40; Campolargo 
v Commission. cited earlier, paras 93 to 98 
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SUMMARY - CASE T-324/02 
5. The annulment of the act of the administration contested by an official in itself 
constitutes appropriate and, in principle, sufficient reparation for any non-material 
harm which the official may have suffered as a result of the act annulled. 
(see para. 100) 
See: T-158/89 Van Hecken v ESC [1991] ECR II-1341, para. 37; T-52/90 Volger v 
Parliament [1992] ECR II-121, para. 46 
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