Judgment — ECLI:EU:T:2018:29
Date: 2018-01-25
Language of the case: Spanish
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - inadmissible;Staff cases - successful

Summary — Judgment of the General Court (Fifth Chamber), 25 January 2018 1. Officials — Members of the contract staff — Selection procedure for the Fusion for Energy Joint Undertaking — Notice of vacancy — Subject-matter – Obligation of the Selection Committee and the authority empowered to conclude contracts of employment to respect the conditions laid down in the notice of vacancy — Scope — Binding nature of the notice of vacancy — Failure to respect the conditions — Irregularity of the selection procedure 2. Actions brought by officials — Judgment annulling a measure — Effects — Restoration of the person concerned to his previous legal position — Annulment as a result of subsequent acts relating to third parties — Conditions — Observance of the principles of proportionality and the protection of legitimate expectations — Interests of the service — Scope (Staff Regulations, Art. 91(1)) 3. Actions brought by officials — Subject-matter — Directions to the administration — Inadmissibility (Staff Regulations, Art. 91) 1. 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 in order to enable them to assess whether it is appropriate for them to apply, and, second, to establish the legal framework within which the institution will undertake consideration of the comparative merits of the candidates. The information given in a vacancy notice for the purposes of constituting reserve lists for the recruitment of staff, indicating that a written test was to be organised, and also that given in the Guide for Applicants, was binding on the Fusion for Energy Joint Undertaking and should therefore have been respected by the Selection Committee and the authority empowered to conclude contracts of employment. The notice referred expressly to that Guide and, on account of the reference made, the information concerning the organisation of a written test in that Guide formed an integral part of that notice. Therefore, in conducting an assessment of the applicant and the other eligible candidates without having held a written test, the Selection Committee did not follow the procedure laid down in the vacancy notice, whereas it was obliged to do so. The selection procedure at issue was thus flawed. (see paras 45, 46, 54) 2. In order to execute a judgment annulling a measure, the applicant must be restored to the legal position he was in before the unlawful act committed by the Selection Committee. However, where restoring the applicant to his previous legal position involves not just the annulment of an act addressed to the applicant and adversely affecting him, but also the annulment of subsequent acts relating to third parties and favourable to them, the annulment of those subsequent acts will be ordered only if it does not appear excessive, particularly in the light of the unlawful act committed, the interests of the third parties and the interests of the service. As regards the interests of third parties, in the light of the principles of proportionality and the protection of legitimate expectations, account must be taken of their legitimate expectations, which may relate in particular to the inclusion of their name on the reserve list and their appointment to the post to be filled or, as the case may be, the decision to offer them employment. In the circumstances of the present case, the successful candidates whose names were included on the reserve lists of a selection procedure of the Fusion for Energy Joint Undertaking, including those who received offers of employment from that joint undertaking, cannot rely on legitimate expectations. The vacancy notice at issue provided that a written test would be held. The reserve lists were drawn up and the offers of employment sent out without those candidates having sat such a test. Furthermore, given the nature of the irregularity, it also cannot be considered that annulment of the reserve lists and of the decisions appointing successful candidates from those lists would be excessive in the light of the interests of the service. First of all, the irregularity affected the assessment of all the candidates and cannot therefore be remedied by measures concerning only the applicant. Secondly, the present selection procedure was only small in scale. (see paras 65-69) 3. See the text of the decision. (see paras 74, 75)