Judgment — ECLI:EU:F:2010:23
Date: 2010-04-15
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Action for damages - successful

Summary 1. Officials — Actions — Action against a decision rejecting a complaint — Admissibility (Staff Regulations, Arts 90 and 91) 2. Actions for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope (Art. 233 EC) 3. Officials — Actions — Judgment annulling a measure — Effects — Annulment of a decision to appoint an official — Obligations of the administration (Art. 233 EC; Staff Regulations, Art. 91) 4. Officials — Recruitment — Criteria — Interests of the service — Administration’s discretion 5. Officials — Vacancy notice — Purpose — Consideration of candidates’ comparative merits (Staff Regulations, Art. 29) 6. Officials — Actions — Pleas in law — Misuse of powers — Definition 1. Actions for annulment which are formally directed against the rejection of an official’s complaint have the effect of bringing before the Civil Service Tribunal the decision against which the complaint was submitted, where they lack, as such, any independent content. (see para. 18) See: 293/87 Vainker v Parliament [1989] ECR 23, para. 8 T‑309/03 Camós Grau v Commission [2006] ECR II‑1173, para. 43 F‑85/08 Notarnicola v Court of Auditors [2009] ECR‑SC I‑A‑1‑263 and II‑A‑1‑1429, para. 14 2. Where a measure of an institution is annulled by the Community judicature, it is for the institution, pursuant to Article 233 EC, to take the appropriate measures to comply with the judgment. In order to comply with the judgment of annulment and implement it fully, the institution from which the annulled measure originates 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. As regards the effects of the annulment of a measure by the Community judicature, it operates ex tunc and therefore has the effect of retroactively eliminating the annulled measure from the legal order. The defendant institution is required, pursuant to Article 233 EC, to take the necessary measures to reverse the effects of the illegalities found to exist, which, in the case of a measure which has already been implemented, involves restoring the applicant’s legal position to what it was prior to that measure. (see paras 35-36) See: C‑8/99 P Gómez de Enterría y Sanchez v Parliament [2000] ECR I‑6031, paras 19 and 20 T‑47/97 Plug v Commission [2000] ECR‑SC I‑A‑119 and II‑527, para. 58; T‑119/99 Hoyer v Commission [2002] ECR‑SC I‑A‑239 and II‑1185, para. 35; T‑324/02 McAuley v Council [2003] ECR‑SC I‑A‑337 and II‑1657, para. 56; T‑254/04 Pappas v Committee of the Regions [2005] ECR‑SC I‑A‑177 and II‑787, paras 36 and 37 3. It is not for the Tribunal to assume the role of the administrative authority in determining the specific measures which the appointing authority must adopt where appropriate. It is for the appointing authority, in the exercise of the power of assessment conferred on it by Article 233 EC, to choose between the various measures possible in order to reconcile the interests of the service with the need to remedy the damage caused to an applicant. Once a recruitment procedure has been initiated under Article 29 of the Staff Regulations, the appointing authority is not required to pursue it. That principle remains applicable even when the recruitment procedure is partially annulled by a judgment of the Community judicature. It follows that such a judgment may in no way affect the discretionary power of the appointing authority to widen its field of choice in the interests of the service by cancelling the initial vacancy notice and at the same time initiating a fresh procedure to fill the post at issue. (see paras 41-42) See: T‑38/89 Hochbaum v Commission [1990] ECR II‑43, para. 15; T‑84/91 Meskens v Parliament [1992] ECR II‑2335, para. 78; T‑41/95 Moat v Commission [1996] ECR‑SC I‑A‑319 and II‑939, paras 38 and 39; Pappas v Committee of the Regions, para. 44; T‑432/03 and T‑95/05 Dehon v Parliament [2006] ECR‑SC I‑A‑2‑209 and II‑A‑2‑1077, para. 49 4. The appointing authority has a wide discretion in assessing the interests of the service and, in particular, in defining the specific requirements of a post to be filled. Review by the Community judicature is confined to determining whether the appointing authority has remained within reasonable bounds and has not used its power in a manifestly incorrect way. (see para. 58) See: T‑237/95 Carbajo Ferrero v Parliament [1997] ECR‑SC I‑A‑141 and II‑429, para. 99 5. The function of the vacancy notice is, first, to give those interested the most accurate information possible as to the conditions of eligibility for the post to be filled and, second, to set the limits of legality within which the institution intends to undertake a comparison of the candidates’ merits and which it has set for itself. The appointing authority would go beyond those limits and, moreover, infringe the principle of equal treatment if it accepted a candidature submitted after the expiry of the deadline set for that purpose in the vacancy notice, the late submission of which could not be explained by the occurrence of unforeseeable circumstances or force majeure. (see para. 78) See: T‑30/04 Sena v EASA [2005] ECR‑SC I‑A‑113 and II‑519, para. 52 6. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those pursued by the regulations in question. (see para. 89) See: 52/86 Banner v Parliament [1987] ECR 979, para. 6; 135/87 Vlachou v Court of Auditors [1988] ECR 2901, para. 27 F‑33/08 V v Commission [2009] ECR‑SC I‑A‑1‑403 and II‑A‑1‑2159, para. 250