Judgment;Information — ECLI:EU:T:2023:25
Date: 2023-02-01
Language of the case: English
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Action for damages - unfounded;Staff cases - successful

summary of vacancy notices and the specific conditions laid down in relation to the post in question constitute the conditions laid down in the vacancy notice (see judgment of 7 February 2019, Duym v Council, T‑549/17, not published, EU:T:2019:72, paragraph 60 and the case-law cited). 36 In order to determine whether or not the AA has exceeded the bounds of that legal framework, it is for the Court first to take cognisance of the conditions required for filling the vacant post and then to verify whether the candidate chosen by the AA to occupy the vacant post does in fact satisfy those conditions (see judgment of 4 July 2006, Tzirani v Commission, T‑45/04, EU:T:2006:185, paragraph 48 and the case-law cited). 37 The first subparagraph of Article 98(1) of the Staff Regulations provides as follows: ‘For the purposes of Article 29(l)(a), when filling a vacant post in the EEAS, the [AA] shall consider the applications of officials of the General Secretariat of the Council, the Commission and the EEAS, of temporary staff to whom Article 2(e) of the Conditions of Employment of Other Servants applies and of staff from national diplomatic services of the Member States without giving priority to any of those categories. …’ 38 The general eligibility criteria, as published in the vacancy notice at issue and applicable to all candidates, are worded as follows: ‘Further to the conditions set out in [Article] 28 of the Staff Regulations (SR) or [Article] 12 of the Conditions of Employment of Other Servants (CEOS), candidates must: … 2. be permanent officials of the Union institutions, or temporary agents to whom Article 2(e) of the Conditions of Employment of Other Servants (CEOS) applies, or staff from diplomatic services of the Member States; …’ 39 As regards, in particular, candidates from diplomatic services of the Member States, the vacancy notice at issue also laid down ‘specific’ eligibility criteria. Those criteria provide, inter alia, as follows: ‘Candidates from national diplomatic services and current temporary agents according to Article 2(e) [of the Conditions of Employment of Other Servants of the European Union] must be able to return to active service in their Member State after the end of their period of service to EEAS. The candidate shall provide a statement issued by her or his Ministry of Foreign Affairs confirming their membership of a diplomatic service, and indicating the post applied for as well as mentioning the guarantee of reinstatement of applicants after a possible contract with the EEAS. If candidates are unable to provide this document from their Ministry, their application will be deemed ineligible.’ 40 Point 1, ‘Application’, of the ‘Procedure’ part of the vacancy notice at issue provides that, before submitting their application, candidates must carefully check whether they meet the eligibility criteria in order to avoid automatic exclusion from the selection procedure at issue. 41 As is apparent from a combined reading of the general and specific eligibility criteria (see paragraphs 38 and 39 above), applicants from a national diplomatic service had to attach to their applications a statement issued by the MFA of their Member State confirming their membership of a national diplomatic service, indicating the post applied for and mentioning the guarantee of reinstatement after a possible contract with the EEAS, failing which they would be ineligible. 42 It should be noted, as the applicant has pointed out, that the statement of the MFA of the Member State of origin of the selected person accompanying his application, produced by the EEAS in Annex B.1 to the defence, makes no mention of that person’s membership of the national diplomatic service of that Member State. That statement merely states that that person may be assigned to a post with a diplomatic mission within the national diplomatic service. However, it makes no mention of the fact that, at the time when it was drafted and signed, the selected person was a member of staff from that national diplomatic service. 43 Nor is it in any way apparent from the file before the Court that, at the time of submitting his application, the selected person enjoyed such a status. As the applicant correctly points out, that person held the post of Head of the police of [confidential] from 12 February 2020 until [confidential], when he took up his duties for the post at issue. Thus, as the EEAS states, that person was attached, as a member of the police, to the Ministry of Internal Affairs and not to the national diplomatic service. 44 That conclusion is confirmed by paragraph 22 of the rejoinder, in which the EEAS stated that, ‘according to the [national] regulations, a member of the [police] who is seconded to [an EU] delegation or another international organisation is, [at the time of] his/her appointment, considered as being part of the [national] foreign service’. 45 It follows that a member of the police can be regarded as a member of staff from the national diplomatic service only as from the time when he or she is appointed to a post in an EU delegation or another international organisation, and not at the time when he or she submits his or her application for that post. Thus, in the present case, at the time when the selected person applied for the post at issue, and therefore well before any possible appointment, he could not be regarded as being a member of staff from the national diplomatic service of his Member State of origin. 46 In the light of those factors, it must be held that the applicant is correct in maintaining that the selected person was not a member of staff from a national diplomatic service at the time he submitted his application and that, therefore, he did not meet the eligibility criterion corresponding to being ‘staff from national diplomatic services of the Member States’. 47 That conclusion cannot be called into question by the EEAS’s argument to the effect that, since each Member State organises its national diplomatic service autonomously, it has only a limited right of scrutiny of the statements issued by the MFAs. It should be noted that that argument would be relevant only if the MFA of his Member State of origin had in fact affirmed in its statement that the selected person was a member of staff from the national diplomatic service of that Member State at the time when he submitted his application. Yet, as observed in paragraph 42 above, the statement of the MFA in question accompanying the selected person’s application referred only to the fact that that person had the possibility of being assigned to a diplomatic mission within the national diplomatic service, but not that he was a member of staff from that service. 48 Consequently, even if the EEAS had, as it claims, a limited right of scrutiny in respect of statements issued by the MFAs of the Member States, it could infer from that statement that the selected person was not a member of staff from the national diplomatic service of that Member State. 49 In the light of those considerations, the present complaint must therefore be upheld. 50 Since that complaint has been held by the Court to be well founded, it should normally entail, by way of consequence, the annulment of the contested decisions. 51 However, it should be borne in mind in that regard that, when deciding on the consequences arising from the annulment of a measure relating to the selection procedures for EU staff, the EU Courts must seek to reconcile the interests of candidates disadvantaged by an irregularity which occurred during that procedure with the interests of other candidates, as a result of which it must take into account not only the need to restore the injured candidates’ rights, but also the legitimate expectations of the candidates already selected. In order to do so, the EU Courts must take into consideration the nature and effects of the irregularity in question and the various possible measures to reconcile the need to restore the rights of the injured applicant with the situation of third parties and the interests of the service (judgment of 8 May 2019, Joint Undertaking Fusion for Energy v Galocha, C‑243/18 P, EU:C:2019:378, paragraphs 46 and 47). 52 In the present case, first of all, it must be held that the unlawful act committed by the EEAS distorted the final result of the selection procedure at issue. If the EEAS had complied with the eligibility criterion at issue, that person should, as is apparent from paragraphs 38 to 40 above, have been excluded from that procedure. Had that been done, that procedure would have led to a different outcome. 53 Secondly, the applicant’s interest in benefiting from the annulment of the appointment decision is far from insignificant. 54 Thirdly, it must be borne in mind that, even if the interests of the selected person would be excessively affected by annulment of the corresponding appointment decision, that does not preclude the court from pronouncing such an annulment, so as to enable the applicant to derive some benefit from his action, whilst leaving to the administration the task of seeking a fair solution which is satisfactory both for the applicant and for the selected person (see, to that effect, judgment of 5 December 2017, Spadafora v Commission, T‑250/16 P, not published, EU:T:2017:866, paragraph 113). 55 Fourthly, as regards the interests of the service, it should be noted that, since the unlawful act committed by the EEAS affected the assessment of all the candidates, it cannot be remedied by measures concerning solely the applicant. Furthermore, the EEAS does not put forward any arguments to show that annulment of the decision appointing the selected person would encounter particular difficulties (see, to that effect, judgments of 5 December 2017, Spadafora v Commission, T‑250/16 P, not published, EU:T:2017:866, paragraph 114, and of 25 January 2018, Galocha v Fusion for Energy Joint Undertaking, T‑561/16, EU:T:2018:29, paragraph 69). 56 It follows from all the foregoing that the contested decisions must be annulled, without it being necessary to examine either the second or third complaints of the first plea or the other pleas in law put forward in support of the heads of claim seeking annulment. The third head of claim 57 The applicant claims to have suffered material and non-material damage as a result of the contested decisions. 58 As regards the alleged non-material damage, the applicant claims that the annulment of those decisions cannot in itself constitute appropriate compensation for that head of damage. 59 First of all, he lost the chance of being recruited at AD 14 level for the fixed term of four years. Next, the EEAS’s assertion that ‘[the CCA] qualified [the applicant] as the least experienced of the shortlisted candidates for the specific profile of this post’ is particularly derogatory and damaging to the point of triggering a very strong emotional reaction in him. Lastly, the pre-litigation procedure which he initiated was particularly cumbersome, since he had to endure the deliberate obstructions and delays of the administration aimed at impeding his access to an effective remedy. In particular, the applicant describes the attitude of the EEAS throughout the pre-litigation procedure as offensive, degrading and humiliating. 60 The applicant concludes from this that the contested decisions had a serious impact on his professional integrity, reputation and future career prospects. Consequently, he seeks compensation estimated provisionally at EUR 50 000. 61 As regards the alleged material damage, the applicant claims that he was deprived of a genuine chance of being recruited since, if the selected person had been excluded, he would have had a 50% chance of being selected in his place. That damage equates in the present case to the difference in salary between the net remuneration of a member of the temporary staff in grade AD 14 and the applicant’s net remuneration for the entire duration of the four-year appointment, to which the allowances and increments potentially due during that period are added, plus default interest amounting to 8% for the part that would already have been due. 62 The EEAS contends, first, that the claim for damages is inadmissible due to non-observance of the rule of correspondence between the complaint and the application and, secondly and in the alternative, that those arguments are unfounded. 63 In the reply, the applicant disputes the EEAS’s argument that the claim for damages is inadmissible, stating that, even at the complaint stage, he had requested that it ‘acknowledge the shortcomings and provide [him with] adequate compensation for the damages suffered’. In addition, it is clear that the exclusion from a selection procedure constitutes the loss of a career opportunity which may result in financial damage. 64 At the hearing, the applicant lodged a document in which he quantified the amount of material damage and to which was attached a copy of his payslip for July 2020, on which the EEAS was asked to express its views. Both at the hearing and in its subsequent observations of 18 and 29 July 2022, the EEAS pleaded that that document was inadmissible on the ground that it was out of time. In its observations of 29 July 2022, the EEAS also disputed the merits of the amount of material damage. Admissibility 65 As regards the EEAS’s argument that the head of claim seeking compensation is inadmissible, it must be borne in mind that, according to settled case-law, following the rejection of a complaint against an act adversely affecting an official, an official may bring an action in which he or she seeks the annulment of the act adversely affecting him or her, payment of compensation, or both (see judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 60 and the case-law cited). 66 However, once an action has been brought before the General Court by a person to whom the Staff Regulations apply concerning the lawfulness of an act adversely affecting him or her, the Court may grant him or her compensation only if that compensation is to remedy damage suffered by him or her as a result of the unlawfulness of the act adversely affecting him or her which is the subject matter of the action or, at the very least, damage resulting from unlawfulness which is closely linked to that same act (see judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 63 and the case-law cited). 67 In the present case, first of all, the material damage allegedly suffered by the applicant results from the error made by the EEAS in its assessment of the eligibility criterion relating to the fact of being a member of ‘staff from national diplomatic services’, an error which rendered the contested decisions vitiated by unlawfulness. Secondly, the alleged non-material damage suffered by the applicant results from the CCA’s allegedly negative assessment of his application and from the EEAS’s allegedly reprehensible conduct during the pre-litigation stage, which originated in the selection procedure at issue, in the context of which the contested decisions were adopted. 68 It follows that the claim for annulment and the claim for damages are closely linked, with the result that, contrary to what the EEAS contends, the latter is admissible (see, to that effect, judgment of 13 July 2006, Andrieu v Commission, T‑285/04, EU:T:2006:215, paragraph 137). Non-material damage 69 From the outset, the claim for damages seeking compensation for loss of opportunity must be rejected since, first, that damage is material and not non-material in nature (see, to that effect, judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 413 (not published) and the case-law cited), and, secondly, that same claim is also made in the context of the claim for compensation for material damage. 70 As regards the remainder of the claim seeking compensation for non-material damage, it should be remembered that the annulment of an unlawful act may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage which that act may have caused, unless the applicant demonstrates that he or she has suffered non-material damage which cannot be compensated in full by that annulment (see judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 83 and the case-law cited). That may be the case, in particular, where the unlawful act contains an explicitly negative assessment of the abilities or conduct of the person concerned which is liable to cause him or her harm (see judgment of 8 May 2019, PT v EIB, T‑571/16, not published, EU:T:2019:301, paragraph 233 and the case-law cited), or where feelings of injustice, incomprehension or frustration were caused to the applicant as a result of the AA’s conduct during the pre-litigation stage (see, to that effect, judgment of 26 October 2017, Paraskevaidis v Cedefop, T‑601/16, EU:T:2017:757, paragraph 84). 71 As regards the allegedly derogatory and harmful assessment wording employed by the CCA to the effect that the applicant was the least experienced candidate for the profile of the post at issue, it should be noted that the assessment in question, read in the limited context of the selection procedure at issue, merely reflects the CCA’s objective opinion concerning the applicant’s merits in comparison with the other candidates in that procedure, without calling into question his professional integrity, reputation or future career prospects. Furthermore, not only are the terms used by the CCA neutral and measured, but also that allegedly negative assessment is only a part of the CCA’s comments, in which it also expressed a very positive opinion of the applicant’s performance at the interview and Assessment Centre, in particular by stating that he has excellent potential. 72 Furthermore, it must be borne in mind that, when an official submits an application for a post, he or she must necessarily accept the risk that unfavourable assessments may be made concerning him or her in the comparison of the candidates’ merits (see, to that effect, judgment of 10 February 2021, Spadafora v Commission, T‑130/19, not published, EU:T:2021:74, paragraph 62 and the case-law cited). 73 As regards the allegedly reprehensible conduct engaged in by the EEAS at the pre-litigation stage, it is worth noting that the applicant has not proven, or even explained, how the EEAS was responsible for intentional obstruction and delays. As is apparent from the file before the Court, the EEAS has always responded within a reasonable time to the numerous requests made to it by the applicant. It should also be pointed out that the applicant was even able to have a discussion with the Chairperson of the CCA concerning the selection procedure at issue. 74 In the light of those considerations, it must be held that the applicant is not justified in maintaining that he suffered non-material damage which is not capable of being compensated in full by the annulment of the contested decisions. 75 The claim for compensation for alleged non-material damage must accordingly be dismissed. Material damage 76 In a claim for damages brought by an official or other staff member, in order for the institution to incur liability for damages, a series of three conditions must be met: the conduct of which the institution is accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question. The three conditions for incurring liability are cumulative, which means that, if one of them is not satisfied, the liability of the institution cannot be incurred. Moreover, the Courts of the European Union are not required to examine those conditions in any particular order (see order of 11 June 2020, Vanhoudt and Others v EIB, T‑294/19, not published, EU:T:2020:264, paragraph 70 and the case-law cited). 77 As regards the unlawful conduct in question, as is apparent from the examination of the first complaint of the first plea put forward by the applicant (see paragraph 49 above), it has been held that the contested decisions are unlawful. 78 As regards the condition relating to actual damage, it must be borne in mind that the damage for which compensation is sought must be actual and certain and also quantifiable. It is for the applicant to adduce evidence in order to establish the existence and extent of that damage (see judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 412 (not published) and the case-law cited). 79 Furthermore, as is apparent from a combined reading of Article 85(1) and (3) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings and it is only exceptionally that the main parties may produce or offer further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified. 80 In the present case, although the applicant specified, in paragraph 2(f) of the application, the components of the calculation to be taken into consideration by the Court in order to determine the extent of the material damage allegedly suffered, it is clear that, in his written pleadings, he has not provided any figures for the amount of compensation sought, or provided any evidence to enable the Court to assess the extent of the alleged damage, such as the salary he received as an official in his Member State of origin. At most, he stated, in paragraph 162 of the application, that the difference between his salary and that of a member of the temporary staff at grade AD 14 was ‘considerable’. 81 As is apparent from paragraph 64 above, it was only at the hearing stage that the applicant specifically quantified that damage. On that occasion, he explained initially that that evidence had to enable the Court to determine the extent of the damage and that, in the alternative, the Court could give judgment by way of interlocutory judgment, as in the case giving rise to the judgment of 12 July 2007, Sanders and Others v Commission (T‑45/01, EU:T:2007:221), and leave the parties six months in which to arrive at an agreement on the amount of compensation. Secondly, he stated that the evidence referred to in paragraph 64 above could be submitted only after the close of the written part of the procedure, since it was only by reading the replies of the EEAS to the questions put by the Court that he learned the date on which the selected person had been appointed to the post at issue, that information being essential in order to determine the extent of the material damage allegedly suffered. 82 The reasons put forward by the applicant at the hearing, as summarised in paragraph 81 above, cannot be regarded as constituting an exceptional circumstance justifying the late submission of that evidence. First, the date of the decision to appoint the selected person was already on page 2 of the decision rejecting the complaint, so that the applicant could have already submitted that evidence at the stage of the application. Second, the fact that the Court may decide to give interlocutory judgment cannot in any way exempt the applicant from complying with the provisions of the Rules of Procedure concerning the submission of evidence. 83 The evidence referred to in paragraph 64 must therefore be rejected as inadmissible. 84 In those circumstances, it must be held that the condition for the European Union to incur non-contractual liability relating to the existence of actual and certain damage is not satisfied in the present case. 85 The claim for compensation for material damage must therefore be rejected. The request for production of the documents 86 In the reply, the applicant requests, pursuant to Article 24 of the Statute of the Court of Justice of the European Union and Article 85 and Article 91(b) of the Rules of Procedure of the General Court, that the General Court order the EEAS to produce certain documents, including the original application documents with attachments of the selected person and the applicant, as submitted via the e-Rotation system; the original of the CCA recommendation addressed to the High Representative; and the assessment conducted by the Commission’s Appeals and Case Monitoring Unit (HR.E.2) and any correspondence between the EEAS and the Commission, including requests for clarification and the responses thereto. 87 In the rejoinder, the EEAS contends that that request should be rejected, since it is inadmissible because it is out of time and, moreover, unfounded. 88 Suffice it to note, in that regard, that those documents do not appear to be either relevant or useful for resolving the dispute, since the Court has been able to give a proper ruling on the application on the basis of the forms of order sought, the pleas in law and arguments put forward during the proceedings and in the light of the documents lodged by the parties (see, to that effect, judgment of 23 April 2018, Vincenti v EUIPO, T‑747/16, not published, EU:T:2018:211, paragraph 89). 89 Accordingly, the applicant’s request for production of the documents must be rejected. 90 In the light of all the foregoing, the contested decisions must be annulled and the action dismissed as to the remainder. Costs 91 Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. 92 In the present case, since the action has in all essential respects been upheld, a fair assessment of the case dictates that the EEAS should be ordered to bear its own costs and to pay those incurred by the applicant. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls the decision of 4 September 2020 of the European External Action Service (EEAS) rejecting TJ’s application submitted pursuant to the vacancy notice [confidential]; 2. Annuls the decision of 23 July 2020 of the EEAS appointing A to that post; 3. Dismisses the action as to the remainder; 4. Orders the EEAS to bear its own costs and to pay those incurred by TJ. Kanninen Porchia Stancu Delivered in open court in Luxembourg on 1 February 2023. E. Coulon M. van der Woude Registrar President * Language of the case: English. 1 Confidential information omitted.