Judgment — ECLI:EU:T:2003:317
Date: 2003-11-27
Language of the case: French
Court formation: Fifth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Conditions of engagement;Organization of departments;General;Duty to have regard for the interests of officials;Plea alleging misuse of powers;Internal directives;Formal requirements
Procedure: Action for damages - successful;Staff cases - successful

SUMMARY — JOINED CASES T-331/00 AND T-115/01 
case); in the alternative, annulment of those vacancy 
notices; compensation for the loss suffered by the 
applicants; in Case T-115/01: annulment of the decision of 
the authority authorised to conclude contracts to annul the 
recruitment procedures initiated by the publication of 
vacancy notices COM/R/5526/00 of 24 February 2000 
(Mrs Bories' case), COM/R/5889/99 of 21 December 
1999 (Mr Chemin's case), COM/R/5520/00 of 
24 February 2000 (Miss Copes' case), COM/R/5863/99of 
26 November 1999 (Mr Mondini'scase), COM/R/5521/00 
of 24 February 2000 (Miss Preissler's case), 
COM/R/5638/00 and COM/R/5639/00 of 16 March 2000 
(Mrs Bertolo's case), COM/R/5645/00 of 20 March 2000 
(Mr Brovelli's case), and COM/R/5646/00 of 20 March 
2000 (Mrs D'Elia's case); annulment of vacancy notices 
COM/R/5734/00 of 23 June 2000 (Mr Chemin's case), 
and COM/R/5735/00 (Mr Mondini's case) and of the 
decisions made in the course of those two recruitment 
procedures; compensation for the loss suffered by the 
applicants. 
Held: In Case T-331/00 the decisions of 16 March 2000 rejecting 
Mrs Bories' candidature, of 3 February 2000 rejecting 
Mr Chemin's candidature, of 17 March 2000 rejecting 
Miss Copes' candidature, of 17 January 2000 rejecting 
Mr Mondini's candidature and of 16 March 2000 rejecting 
Miss Preissler's candidature, are annulled. In Case 
T-115/01: the decision of 30 May 2000 withdrawing 
vacancy notice COM/R/5526/00, for which Mrs Bories 
applied, is annulled; the decision of 30 May 2000 
withdrawing vacancy notice COM/R/5889/99, for which 
Mr Chemin applied, is annulled. In Joined Cases T-331/00 
and T-115/01: the Commission is ordered to pay 
Mrs Bories the sum of EUR 11 929 (eleven thousand nine 
hundred and twenty-nine) as compensation for the material 
damage and the sum of EUR 1 (one) as compensation for 
the non-material damage suffered; the Commission is 
ordered to pay Mr Chemin the sum of EUR 29 592 
(twenty-nine thousand five hundred and ninety-two) as 
I-A - 310 
BORIES AND OTHERS v COMMISSION 
compensation for the material damage and the sum of 
EUR 1 (one) as compensation for the non-material damage 
suffered; the Commission is ordered to pay Miss Copes 
the sum of EUR 1 (one) as compensation for the non 
material damage suffered; the Commission is ordered to 
pay Mr Mondini the sum of EUR 5 000 (five thousand) as 
compensation for the material damage and the sum of 
EUR 1 (one) as compensation for the non-material damage 
suffered; the Commission is ordered to pay Miss Preissler 
the sum of EUR 11 929 (eleven thousand nine hundred 
and twenty-nine) as compensation for the material damage 
and the sum of EUR 1 (one) as compensation for the 
non-material damage suffered; the Commission is ordered 
to pay Mrs Bertolo the sum of EUR 1 (one) as 
compensation for the non-material damage suffered; the 
Commission is ordered to pay Mr Brovelli the sum of 
EUR 1 (one) as compensation for the non-material damage 
suffered; the Commission is ordered to pay Mrs D'Elia the 
sum of EUR 1 (one) as compensation for the non-material 
damage suffered. The remainder of the action in Case 
T-115/01 is dismissed. The Commission is to bear its own 
costs and pay the costs incurred by the applicants in Case 
T-331/00. The Commission shall bear its own costs and 
pay three quarters of the costs incurred by the applicants 
in Case T-115/01. The applicants in Case T-115/01 are to 
bear a quarter of their own costs. 
Summary 
1. Officials - Recruitment - Vacant post - Permanent post paid from research 
and investment appropriations which may be filled by either an official or a member 
of the temporary staff - Publication of a single notice of vacancy - Permissible 
(Staff Regulations, Arts 4 and 29; Conditions of Employment of Other Servants, 
Art. 2(d)) 
I - A - 3 1 1 
SUMMARY — JOINED CASES T-331/00 AND T-115/01 
2. Officials - Recruitment - Internal directive of the Commission limiting the 
contract of temporary staff within the meaning of Article 2(d) of the Conditions of 
Employment of Other Servants to a maximum period of three years - Legal effects 
3. Officials - Recruitment - Vacant post - Permanent post paid from research 
and investment appropriations - Vacancy notice having resulted in candidatures 
only from temporary staff coming under Article 2(d) of the Conditions of 
Employment of Other Servants - Obligation to consider the candidatures received 
4. Officials - Actions - Pleas in law - Misuse of powers - Concept 
5. Officials - Recruitment - Obligation of the administration to fill a post which 
has become vacant - None - Obligation to state reasons for the decision not to 
recruit 
6. Officials - Organisation of departments - Posting of staff - Administration's 
discretion - Limits - Interests of the service - Observance of the principle of 
equivalence of posts - Temporary freeze on recruitment - Permissible 
7. Officials - Administration 's duty to have regard for the welfare of its servants 
- Scope - Limits 
8. Officials - Non-contractual liability of the institutions - Conditions - Fault on 
the part of the administration - Damage - Causal link 
1. Since permanent posts paid from research and investment appropriations and 
included in the list of posts appended to the Commission's budget may be filled by 
the appointment of an official pursuant to Articles 4 and 29 of the Staff Regulations 
or by the engagement of a member of the temporary staff falling within the meaning 
I-A - 312 
BORIES AND OTHERS v COMMISSION 
of Article 2(d) of the Conditions of Employment of Other Servants, the Commission 
may seek candidatures from officials and temporary staff by means of one single 
vacancy notice. 
(see paras 39-40) 
See: T-372/00 Campolargo v Commission [2002] ECR-SC I-A-49 and II-223. para. 90; 
T-330/OO and T-114/00 Cocchi and Hainz v Commission 120021 ECR-SC I-A-193 and 
II-987. paras 33 and 34 
2. The Commission may not invoke its decision concerning a new policy for 
research staff in order to prohibit a member of the temporary staff covered by 
Article 2(d) of the Conditions of Employment of Other Servants and in possession 
of a three-year contract from applying for vacancy notices relating to a permanent 
post paid from research and investment appropriations solely on the ground that his 
appointment would entail, contrary to the guidelines laid down in that decision, an 
extension of his contract or the award of a new contract which would mean 
exceeding the three-year ceiling. An internal directive does not have the status of 
legislation and may be applied only in compliance with the principles laid down in 
the Staff Regulations and the Conditions of Employment of Other Servants, which, 
in the present case, do not provide any legal basis for such a prohibition. 
First, the fourth paragraph of Article 8 of the Conditions of Employment of Other 
Servants provides that temporary staff in Category A required to perform duties 
necessitating scientific or technical qualifications are to be engaged for not more 
than five years and that their contracts may be renewed; the fifth paragraph provides 
that such a renewal may occur not more than once for a fixed period, and any 
further renewal must be for an indefinite period, so that an internal directive cannot 
fix a ceiling of three years. Secondly, the scientific and technical duties required of 
the temporary staff referred to in Article 2(d) may mean that a fixed post is needed 
in order to enable multiannual research programmes to be carried out, which would 
be more difficult if the member of the temporary staff dealing with those 
programmes was required to leave his post at a certain point, whereas administrative 
duties, on the other hand, do not prevent that particular difficulty for the members 
I-A - 313 
SUMMARY — JOINED CASES T-331/00 AND T-115/01 
of the temporary staff referred to in Article 2(b) of the Conditions of Employment 
of Other Servants. 
(see paras 58-59, 61-62) 
See: 190/82 Blomefield v Commission [1983] ECR 3981, para. 21; T-17/95 Alexopoulou 
v Commission [1995] ECR-SC I-A-227 and II-683, para. 24 
3. Where, following publication of a vacancy notice for the purpose of filling a 
permanent post paid from research and investment appropriations, the Commission's 
appointing authority receives candidatures only from temporary staff coming under 
Article 2(d) of the Conditions of Employment of Other Servants, the interests of the 
service laid down in Article 12(1) of those Conditions of Employment require it to 
consider those candidatures in order to determine whether one if them is able to 
secure for the institution the services of persons of the highest standard of ability, 
efficiency and integrity. 
(see para. 67) 
4. A decision is vitiated by misuse of powers only if it is proved satisfactorily, on 
the basis of objective, relevant and consistent evidence, that that decision was taken 
for purposes other than those stated. 
(see para. 100) 
See: 135/87 Vlachou v Court of Auditors [1988] ECR 2901, para. 27; T-103/01 Cwik v 
Commission [2002] ECR-SC I-A-229 and II-1137, para. 28 
I-A - 314 
BORIES AND OTHERS v COMMISSION 
5. The Community administration is not required to continue to pursue a recruitment 
procedure initiated under Article 29 of the Staff Regulations if there are objective 
reasons which justify such a decision. The institution is, however, required to 
provide a statement of reasons for not recruiting. 
The principle that the administration is not required to continue to pursue a 
recruitment procedure initiated under Article 29 of the Staff Regulations is qualified 
in the case-law in accordance with the applicant's expectations of being appointed. 
The more valid the applicant's legitimate expectations of being appointed to the post 
for which he has applied, the more the administration must justify the fact that it has 
not made such an appointment and has cancelled the vacancy notice. 
(see paras 150. 153. 173) 
See: 26/68 Fux v Commission [1969] ECR 145. paras 11 and 12: 785/79 Pizziolo v 
Commission [1981] ECR 969. para. 10; 18/83 Morina v Parliament [1983] ECR 4051. 
paras 9 and 12: 316/82 and 40/83 Kohler v Court of Auditors [1984| ECR 641. para. 22; 
T-37/89 I Hanning v Parliament [19901 ECR II-463. para. 48; T-35/96 Rasmussen v 
Commission [1997] ECR-SC I-A-61 and II-187, para. 60: T-56/96 Maccaferri v 
Commission [19981 ECR-SC I-A-57 and II-133. para. 33 
6. The Community institutions have a broad discretion to organise their 
departments to suit the tasks entrusted to them and to post the staff available 
to them in the light of such tasks, on condition, however, that the staff are 
posted in the interests of the service and in conformity with the principle of 
equivalence of posts. Such discretion is indispensable in order to achieve 
effective organisation of work and to adapt that organisation to varying needs. 
It cannot be claimed that the interests of the service preclude a freeze on 
recruitment procedures at a particular time, since that would undermine an 
I-A - 315 
SUMMARY - JOINED CASES T-331/00 AND T-115/01 
institution's power of organisation and would be tantamount to preventing it 
from reducing or reassigning staff where it considers it necessary. 
(see paras 171-172) 
See: 124/78Z Listv Commission [1979] ECR 2499; 19/87 Hecą v Commission [1988] ECR 
1681; T-49/91 Turnery Commission [1992] ECR II-1855, para. 34 
7. The administration's duty to have regard for the welfare of its servants reflects 
the balance of reciprocal rights and obligations established by the Staff Regulations 
in the relationship between the official authority and the civil servants. A particular 
consequence of this duty is that when the official authority takes a decision 
concerning the situation of a member of its staff it should take into consideration all 
the factors which may affect its decision and that when doing so it should take into 
account not only the interests of the service but also those of the person concerned. 
(see para. 186) 
See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; T-207795 Ibarra 
Gil v Commission [1997] ECR-SC I-A-13 and II-31, para. 75 
8. The Community can only be held liable for damages if a number of conditions 
are satisfied as regards the illegality of the allegedly wrongful act committed by the 
institutions, the actual harm suffered, and the existence of a causal link between the 
act and the damage alleged to have been suffered. 
(see para. 192) 
See: 111/86 Delauche v Commission [1987] ECR 5345, para. 30; Cocchi and Hainz v 
Commission, cited earlier, para. 97 
I-A - 316