62005FJ0095_EN
Parties
Grounds
Operative part
Parties
In Case F‑95/05,
ACTION under Articles 236 EC and 152 EA,
N, member of the contract staff of the Commission of the European Communities, residing in Brussels (Belgium), originally represented by K.H. Hagenaar, lawyer, then by J. van Drooghenbroeck and T. Demaseure, lawyers, and finally by I. Kletzlen, lawyer,
applicant,
v
Commission of the European Communities, represented by J. Currall and K. Herrmann, acting as Agents,
defendant,
THE TRIBUNAL (Second Chamber),
composed of S. Van Raepenbusch, President, I. Boruta and H. Kanninen (Rapporteur), Judges,
Registrar: S. Boni, Administrator,
having regard to the written procedure and further to the hearing on 28 June 2007,
gives the following
Judgment
Grounds
1. By an application received at the Registry of the Court of First Instance of the European Communities on 5 October 2005 by fax (the original was subsequently lodged on 11 October) the applicant essentially seeks, first, annulment of the decision of the Director of Directorate K ‘External Service’ of Directorate-General (DG) ‘External Relations’ of the Commission of the European Communities of 15 April 2005, informing her that she would not be recruited as head of administration of the Commission delegation in Guinea, and, secondly, an order that the Commission pay her compensation for the material and non-material damage allegedly suffered.
Legal context
2. Under Article 12(2)(d) of the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’):
‘A member of the temporary staff may be engaged only on condition that:
…
(d) he is physically fit to perform his duties;
…’
3. The first paragraph of Article 13 of the CEOS provides that ‘[b]efore being engaged, a member of the temporary staff shall be medically examined by one of the institution’s medical officers in order that the institution may be satisfied that he fulfils the requirements of Article 12(2)(d)’.
4. The second paragraph of Article 13 of the CEOS states that ‘[the second paragraph of] Article 33 of the Staff Regulations [of Officials of the European Communities] shall apply by analogy’.
5. The second paragraph of Article 33 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) provides that ‘[w]here a negative medical opinion is given as a result of the medical examination provided for in the first paragraph, the candidate may, within 20 days of being notified of this opinion by the institution, request that his case be submitted for the opinion of a medical committee composed of three doctors chosen by the appointing authority from among the institutions’ medical officers. The medical officer responsible for the initial negative opinion shall be heard by the medical committee. The candidate may refer the opinion of a doctor of his choice to the medical committee. Where the opinion of the medical committee confirms the conclusions of the medical examination provided for in the first paragraph, the candidate shall pay 50% of the fees and of the incidental costs’.
Facts of the case
6. The applicant worked for the Commission as a member of the auxiliary staff from June 1993 to May 1994, and then as a member of the temporary staff under Article 2(b) of the CEOS from 1 July 2002 to 31 July 2004. During the latter period the applicant was first assigned to the ‘Financial Control’ DG and then, from 1 March 2003, to the ‘Justice and Home Affairs’ DG.
7. The applicant was on sick leave from 27 October 2003 to 31 March 2004. On 16 March 2004 she was assigned to the Paymaster Office (PMO), where she worked as a member of the temporary staff until 31 July 2004, then as a member of the contract staff from 1 August 2004.
8. On 7 July 2004 the applicant applied for the post of head of administration of the Commission delegation in the Congo, following publication of notice of vacancy COM/2004/2982/F.
9. On 5 January 2005, the ‘External Relations’ DG informed the applicant that she had passed the selection stage and asked her whether she would accept a posting to a delegation other than the Congo. If so, she was asked to list four delegations in order of preference.
10. The applicant informed the ‘External Relations’ DG in an email of 7 January 2005 that she confirmed her interest in a posting to the Congo but would also be interested in the delegation in Guinea.
11. Notice of vacancy COM/2004/3510/F concerning the post of head of administration of the delegation in Guinea specified that ‘the appointment of the official … is subject to the favourable opinion of the medical service …’.
12. On 15 February 2005 the applicant attended the medical examination required by notice of vacancy COM/2004/3510/F.
13. On 17 February 2005 a memorandum was sent by the ‘External Relations’ DG to the ‘Personnel and Administration’ DG to enable the authority empowered to conclude contracts of employment (‘the AECE’) to undertake as quickly as possible the recruitment, as members of the temporary staff under Article 2(b) of the CEOS, of persons on a list which included the applicant’s name as heads of administration of delegations.
14. On 28 February 2005 the applicant received the results of the medical examination conducted with a view to appointing her to a delegation.
15. On 1 March 2005 Dr A, a medical officer at the Commission, informed the applicant of his reservations concerning her move to Africa. According to the Commission, Dr A then invited the applicant to contact Dr B, a psychiatrist on the Commission’s list of independent medical experts, in order to obtain an external expert opinion.
16. On 2 March 2005 the applicant had an appointment with Dr B, whose report was received by Dr A on 7 March 2005. In his findings, Dr B expressed reservations about the applicant’s mental health for the purposes of a position of responsibility in Africa.
17. In an email of 3 March 2005 the ‘External Relations’ DG informed the applicant that it was waiting for the medical service’s approval to begin the next stage of her recruitment as a head of administration in a delegation.
18. On 9 March 2005 the applicant had a further appointment with Dr A, who repeated his reservations about her move to Guinea on the basis of Dr B’s report.
19. In a memorandum of 17 March 2005 Dr A informed the ‘External Relations’ DG that the applicant was not physically fit to perform the duties of head of administration in the Guinea delegation.
20. On 22 March 2005 Dr A faxed to the applicant, at her request, the names and addresses of three psychiatrists on the Commission’s list of medical experts. The applicant did not consult any of those three doctors.
21. On 4 April 2005 the applicant submitted to Dr A expert reports from four psychiatrists whom she had consulted on her own initiative. These were a certificate from Dr C dated 10 March 2005, a report from Dr D dated 31 March 2005 and a medical psychological report dated 4 April 2005 and signed jointly by Dr E and Dr F.
22. In a memorandum of 15 April 2005 the Director of Directorate K ‘External Service’ of the ‘External Relations’ DG informed the applicant that ‘in view of the negative outcome reported by the [m]edical [s]ervice on 17 March 2005, the request sent to the [“Personnel and Administration”] DG on 17 [February 2005] for [her] to be recruited to the post in question will not result in the offer of a temporary contract under Article 2(b) of the CEOS and … [she] will therefore not be able to take up the position in Guinea’ (‘the contested decision’).
23. On 18 April 2005 Dr E sent Dr A a letter in which he referred to Dr B’s report and to the report signed by himself and Dr F. Dr E noted, in his letter, that Dr B ‘followed the precautionary principle on the basis of the applicant’s case history and personality traits’, while he himself and Dr F ‘did not identify either in the medical psychological examination or in the psychometric assessments any mental pathology contra-indicating access to a position such as that sought by [the applicant]’.
24. In her memorandum of 19 April 2005 to the Director of Directorate K ‘External Service’ of the ‘External Relations’ DG, the applicant claimed that:
‘contrary to the memorandum of 17 March from the medical officer, I can tell you that the results of the medical tests conducted by the medical service, of which I have received a copy, are positive and therefore equivalent to a “YES” for medical fitness.
[Article] 33 of the Staff Regulations states: “Before appointment, a successful candidate shall be medically examined by one of the institution’s medical officers in order that the institution may be satisfied that he fulfils the requirements of Article 28(e)”, while Article 28(e) states: “An official may be appointed only on condition that … he is physically fit to perform his duties”. I am therefore surprised at what Dr [A] had to say on 17 March 2005 about my “medical fitness”, as stated in your letter. I can supply a copy of the results of the tests carried out, should you wish to have them.’
25. The applicant sent the Director of Directorate C ‘Social Welfare Policy, Luxembourg Staff, Health, Safety’ of the ‘Personnel and Administration’ DG a memorandum dated 20 April 2005 which is, essentially, identical to the memorandum of 19 April 2005 referred to earlier.
26. In a memorandum dated 26 April 2005, drawn up at the request of the Director of Directorate C ‘Social Welfare Policy, Luxembourg Staff, H, Safety’ of the ‘Personnel and Administration’ DG, the head of unit of the medical service of that directorate replied to the applicant’s memorandum of 20 April 2005. It was explained that ‘anyone applying to move to a delegation is subject to a prior medical examination [; i]t is in this context, rather than in the context of [Article] 33 of the Staff Regulations, that [the applicant] received a negative opinion from the medical officer concerning her possible posting to Guinea … [; t]hat opinion is addressed to the [appointing authority] of [the “External Relations” DG], which will take the final decision, the opinion being just one of the factors it must take into account in order to do so’.
27. On 19 May 2005 the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.
28. By a decision of 5 July 2005 the appointing authority rejected the complaint.
Procedure and forms of order sought
29. The present action was originally lodged at the Registry of the Court of First Instance under number T‑377/05.
30. By an order of 15 December 2005 the Court of First Instance referred the present case to the Civil Service Tribunal pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 1994 L 333, p. 7). The action was lodged at the Registry of the Tribunal under number F‑95/05.
31. By an order of 24 May 2007 the President of the Second Chamber of the Tribunal granted the applicant legal aid.
32. The applicant claims that the Tribunal should:
– annul the contested decision;
– order the Commission to pay her the provisional sum of EUR 1 to compensate for the material and non-material damage suffered, as an interim payment and subject to all necessary reservations;
– order the Commission to pay the costs.
33. The Commission submits that the Tribunal should:
– dismiss the action as unfounded;
– make an appropriate order as to costs.
The application for annulment
Scope of the pleas presented by the applicant
34. In support of her application for annulment of the contested decision, the applicant relies in her application on a number of pleas alleging, first, that the Director of Directorate K ‘External Service’ of the ‘External Relations’ DG was not competent to adopt the contested decision, second, that Dr A, the ‘External Relations’ DG and the appointing authority misused their powers, and third, that Dr A infringed his obligation to provide a statement of reasons for his medical opinion.
35. According to the Commission, the applicant relies first and foremost on the plea that the Director of Directorate K ‘External Service’ of the ‘External Relations’ DG was not competent to adopt the contested decision. Her second plea concerns the misuse of powers by the Director of Directorate K ‘External Service’ of the ‘External Relations’ DG in adopting the contested decision. Finally, her third plea concerns Dr A’s manifest error of assessment, his misuse of powers and his failure to provide a statement of reasons for his medical opinion.
36. In her reply, the applicant has explained the basis for her second and third pleas as formulated by the Commission. She states that the second plea is based on infringement of the obligation to state reasons as provided for in the second paragraph of Article 25 of the Staff Regulations, and on infringement of the principle of protection of legitimate expectations, while the third plea is based on infringement of the obligation to state reasons, of the principle of protection of legitimate expectations, and of the duty to have regard for the interests of officials.
37. It is apparent from the parties’ written pleadings that the applicant is, essentially, presenting three main pleas. First, she maintains that the Director of Directorate K ‘External Service’ of the ‘External Relations’ DG was not competent to adopt the contested decision. Second, the applicant claims that the contested decision is unlawful on the ground that the reports and expert opinions of the doctors she consulted on her own initiative were not taken into account in the procedure. Furthermore, the applicant contends that, under the provisions of the second paragraph of Article 33 of the Staff Regulations, she was entitled to submit her case for the opinion of a medical committee after Dr A delivered his negative opinion. Third, the applicant points out that the contested decision and the medical opinion drawn up by Dr A do not satisfy the requirement that they should be accompanied by a statement of reasons. The applicant’s arguments also cover matters intended to demonstrate a misuse of powers and a manifest error of assessment.
38. This description of the pleas relied on by the applicant is taken from the preparatory report for the hearing, which was notified to the parties on 24 May 2007. Neither the applicant nor the Commission submitted observations on that report. It is appropriate to begin by considering the second plea.
The second plea
Arguments of the parties
39. Firstly, the applicant submits that Dr A, the ‘External Relations’ DG and the appointing authority failed to take into consideration Dr C’s certificate, Dr D’s report, and the expressly favourable report by Dr E and Dr F, as well as the letter of 18 April 2005 written by Dr E.
40. Consequently, the contested decision was manifestly taken for purposes other than those claimed. In ignoring those medical documents, the administration acted maliciously towards the applicant. There was no rule preventing external expert reports from being taken into account.
41. The applicant adds that Dr A did not pass on to the administration the opinions of the specialists she had consulted. She argues that it was particularly surprising that a general practitioner, having received extremely detailed psychiatric and psychological reports from four specialists in that field, should have stood by his brief physical diagnosis. The applicant considers that she was justified in not having consulted the doctors recommended by Dr A.
42. Second, the applicant contends that, under the provisions of the second paragraph of Article 33 of the Staff Regulations, she was entitled to submit her case for the opinion of a medical committee after Dr A had delivered a negative opinion. She emphasises that, following her memorandum of 20 April 2005, she received a letter dated 26 April from the ‘Personnel and Administration’ DG informing her that the procedure provided for in Article 33 of the Staff Regulations did not apply in her case. The Commission thus misled her about the possibility of using that procedure.
43. The Commission points out that, in the present case, the contested decision was adopted following notification of the opinion of the medical service of 17 March 2005 that the applicant was not physically fit to perform her duties in Guinea.
44. The Commission emphasises that notice of vacancy COM/2004/3510/F required a prior favourable opinion from the medical service. Any person applying to join a delegation in a third country is subject to a medical examination conducted by one of the Commission’s medical officers, in order to allow the department to which the person is to be posted to satisfy itself that he is physically fit to fulfil all the obligations for which he may be responsible, taking account of the nature of his duties and the conditions at the place where they are to be performed.
45. The opinion, delivered following the medical examination which the applicant underwent pursuant to Article 28 of the Staff Regulations and Article 13 of the CEOS with a view to her engagement as a member of the temporary staff in July 2002, that she was fit to perform duties in Brussels, could not prejudge her fitness to be posted elsewhere years later.
46. A special medical examination was particularly warranted, first, because the specific nature of the duties performed by a delegation in a third country is clear from the special and exceptional provisions of Annex X to the Staff Regulations, and second, because the health environment, the climate and security conditions and the degree of isolation may be so different from those normally obtaining in the Community that they sometimes warrant payment of a compensatory allowance.
47. Consequently, the requirement for a medical opinion in order to take a decision on such postings is entirely justified in the interest of the service. That opinion cannot be confined to the candidate’s physical state of health, but must also take account of his mental health, and should include a prognosis of possible disorders which might, in the foreseeable future, compromise the normal performance of the intended duties and/or require the premature repatriation of the official or servant.
48. The Commission points out in that respect that the applicant is wrong to describe the memorandum of 28 February 2005 informing her of the results of the medical examinations conducted with a view to her posting to an external delegation as a favourable opinion as required by notice of vacancy COM/2004/3510/F. The memorandum merely forwarded to the applicant the results of the medical examinations, which were, apart from a small number, considered to be normal. Furthermore, it was clear from the contents of the memorandum that it could not be the medical opinion required by the notice of vacancy. Indeed, the applicant herself was aware that the memorandum did not constitute the medical opinion in question, since she states in her application that the ‘External Relations’ DG informed her on 3 March 2005 that it was still awaiting the approval of the medical service.
49. As regards the reports and expert opinions provided by the medical specialists chosen by the applicant, the Commission considers that they can have no binding effect on the ‘External Relations’ DG or the AECE as to the engagement of the person in question, since they were not drawn up in connection with the review of Dr A’s medical opinion.
50. The Commission does not dispute that there should be means of redress on medical matters open to a member of staff who has received a negative medical opinion. The Commission also states that it was in order to enable the applicant to take advantage of that opportunity that Dr A gave her the details of three psychiatric specialists so that she could obtain a second opinion in connection with the procedure for posting her to the delegation. The Commission emphasised, during the hearing, that the Community legislature has omitted to provide for a procedure for contesting medical opinions concerning appointments within the External Service.
51. Obtaining a supplementary opinion from one of the independent experts named by Dr A would have been decisive in settling the contradiction between the expert opinion of Dr B and that of Dr E and Dr F. It was therefore impossible to understand why the applicant had not consulted those experts, even though she had requested their names.
52. The Commission adds that the fact that the applicant did not follow the procedure laid down for a move to a delegation did not entitle her to have the opinions which she had obtained on her own initiative taken into account. The Commission takes the view that an official or other member of staff may not substitute the opinion of doctors whom he has taken the initiative to consult for the opinion of the doctor who is vested with the responsibility under the Staff Regulations to deliver the requisite opinion. The only way in which the applicant could have contested Dr A’s opinion was to consult one of the medical officers named by Dr A in his fax of 22 March 2005.
53. In the Commission’s view, the circumstances in which the favourable opinion of the medical service prescribed by notice of vacancy COM/2004/3510/F was to be obtained were different from those of the medical examination upon recruitment provided for in Article 33 of the Staff Regulations and Article 13 of the CEOS. Those provisions were therefore not applicable in the present case. In addition, there were no regulations governing the medical procedure for postings to third countries. Consequently, the Commission followed its own procedure which was based on the notice of vacancy and drawn up in the interest of the service.
54. At the hearing, the Commission explained that the procedure provided for in Article 59 of the Staff Regulations also did not apply when filling a post within the External Service.
55. The Commission further stresses that, even if Dr A’s opinion were treated in the same way as the medical opinion upon recruitment provided for in Article 33 of the Staff Regulations, the applicant clearly did not ask for Dr A’s opinion to be reviewed in accordance with the procedure provided for in the second paragraph of Article 33 of the Staff Regulations.
56. It follows that, in the absence of an opinion contrary to that of Dr A as required under the procedure provided for that purpose, it is not a misuse of powers for the contested decision to be based solely on Dr A’s opinion.
57. As regards the alleged misuse of powers by Dr A, the Commission submits that he was entitled to deliver a negative opinion in view of, first, his knowledge of the applicant’s medical history and the expert opinion of Dr B, and second, the absence of a second opinion. Dr A had therefore merely exercised his professional judgment. Moreover, the applicant had not alleged or shown that Dr A acted for any other reason.
Findings of the Tribunal
58. According to the fourth paragraph of Article 10 of the CEOS, Title VIIIa of the Staff Regulations on the special and exceptional provisions applicable to officials serving in a third country applies by analogy to temporary staff serving in a third country. Under the terms of Article 101a of the Staff Regulations, which is the only article in that Title, ‘[w]ithout prejudice to the other provisions of the Staff Regulations, Annex X lays down the special and exceptional provisions applicable to officials serving in a third country’.
59. It should be noted that Annex X to the Staff Regulations does not contain any special or exceptional provisions on the medical examination upon recruitment.
60. However, like the provisions of the first paragraph of Article 33 of the Staff Regulations for officials, the first paragraph of Article 13 of the CEOS provides that before being engaged, a member of the temporary staff must be medically examined by one of the institution’s medical officers in order to determine whether he fulfils the requirements laid down by Article 12(2)(d) of the CEOS that he must be physically fit to perform his duties.
61. Furthermore, the second paragraph of Article 33 of the Staff Regulations, applicable by analogy to members of the temporary staff under the second paragraph of Article 13 of the CEOS, provides for an internal appeals procedure against the opinion issued by the institution’s medical officer.
62. The objective of the legislature in establishing an appellate medical committee under the second paragraph of Article 33 of the Staff Regulations must be considered to have been to provide an additional safeguard for candidates and thereby improve the protection of their rights (Case T-10/93 A
v Commission
[1994] ECR‑SC I‑A‑119 and II‑387, paragraph 23).
63. In this connection, first of all, a medical committee composed of three doctors, excluding the medical officer responsible for the initial opinion of unfitness, which is chosen from among the medical officers of the institutions and not exclusively from the medical officers of the institution in question does represent a real additional safeguard for candidates ( A
v Commission, paragraph 24). Secondly, the consequence of the second paragraph of Article 33 of the Staff Regulations is that the candidate is able to refer the opinion of a doctor of his choice to the medical committee. Furthermore, a candidate may always, on request, have the reasons for an opinion declaring him unfit notified to a doctor of his choice. Such notification may be made before the medical committee is convened ( A
v Commission, paragraph 25). Thirdly, it is clear from the second paragraph of Article 33 of the Staff Regulations that the committee must base itself on the medical file established within the institution, on the comments to the committee of the medical officer who gave the negative opinion and, where appropriate, on the opinion of a doctor of the candidate’s own choice. The medical committee may also base its decision on a discussion with the candidate and/or his own doctor and on all the documents which the candidate sees fit to submit to the committee. Moreover, the medical committee may, if it considers it to be desirable, have the candidate undergo a fresh examination, if appropriate, calling for additional tests or seeking the opinion of other specialist doctors. It follows that the medical committee may carry out a full and impartial review of the candidate’s situation ( A
v Commission, paragraph 27).
64. A further point to note is that the Staff Regulations also make provision for mechanisms enabling an official to make his views known during medical monitoring procedures in situations other than recruitment. Thus the fifth, sixth and seventh paragraphs of Article 59(1) of the Staff Regulations allow recourse to an arbitration system where an official considers that the conclusions of a medical examination organised by the appointing authority in connection with sick leave are unjustified on medical grounds. As regards the procedure for granting an invalidity allowance, the first paragraph of Article 7 of Annex II to the Staff Regulations enables the official concerned to appoint inter alia one of the three doctors who make up the committee responsible for assessing invalidity.
65. As to the facts of the present case, it should be pointed out, first, that the applicant was working for the Commission at the time when she submitted her candidature for the post of head of administration of the Guinea delegation, and that it was intended to recruit her to that post as a member of the temporary staff under Article 2(b) of the CEOS, as is apparent from the memorandum of 17 February 2005 from the ‘External Relations’ DG.
66. Secondly, under the terms of notice of vacancy COM/2004/3510/F, the appointment of a candidate to the post of head of administration of the Guinea delegation ‘[was] subject to the prior favourable opinion of the [m]edical ?s?ervice …’. In the instant case, the medical service’s opinion was that the applicant was unfit for recruitment to the post in question. The applicant was thus informed, through the contested decision, that she would not be recruited.
67. The Commission argues that there are no provisions entitling the applicant to obtain, through a special procedure, a medical review of the opinion of unfitness delivered by the medical officer regarding her posting to a delegation. The Commission does not, however, dispute that a person in receipt of an unfavourable medical opinion should have some means of redress on medical matters. Indeed, the Commission states that the medical officer gave the applicant the details of three psychiatric specialists to enable her to obtain a second opinion.
68. The applicant submits, first, that the medical opinions of the doctors she had chosen should have been taken into account in the recruitment procedure. Second, she considers that the possibility of referring her case to a medical committee provided for in the second paragraph of Article 33 of the Staff Regulations was applicable in her case. The applicant’s claim should therefore be construed as relating to observance of the right to a fair hearing, in that she was not given the opportunity to put her case properly before the contested decision was adopted, in particular through the intervention of a doctor of her choice, as provided for in the second paragraph of Article 33 of the Staff Regulations.
69. It should be noted, first of all, that the procedure followed by the Commission, on the basis of which the contested decision was adopted, did not furnish the safeguards relating to the right to a fair hearing provided for in the second paragraph of Article 33 of the Staff Regulations.
70. Even if the procedure followed in the present case for establishing the medical opinion can be taken not to have been totally unattended by safeguards appropriate to adversarial proceedings, since the applicant had the opportunity to consult other independent experts to counterbalance the opinion of Dr A and the expert report of Dr B, clearly that procedure is nevertheless fundamentally different from those described in paragraphs 63 and 64 above, in that it does not guarantee that the opinion of a doctor chosen by the candidate will be taken into account when establishing the final medical opinion.
71. A further crucial point is that nowhere in its arguments does the Commission suggest that the procedure followed in the present case was prescribed by a legal instrument. Nor does it appear to flow from a pre-established practice known in advance by the persons affected.
72. The Commission submits, however, that because of the specific conditions in some third countries, the interest of the service requires the medical service to deliver its opinion under different conditions from those of the medical examination provided for in Article 13 of the CEOS for members of the temporary staff and of that provided for in Article 33 of the Staff Regulations, which relate only to initial recruitment. In the Commission’s view, the procedure applicable in the present case is a separate one which is based on the notice of vacancy and laid down in the interest of the service.
73. The Commission did not, however, come forward at the hearing with any reason why the specific requirements regarding the physical fitness of candidates for posts in third countries could not be taken into account in the procedure provided for in Article 13 of the CEOS and Article 33 of the Staff Regulations. It also failed to explain why it was justified or necessary in the interest of the service for such a candidate for recruitment not to enjoy the same safeguards as those provided for in Article 13 of the CEOS and Article 33 of the Staff Regulations.
74. Finally, there is nothing in the provisions of Article 13 of the CEOS or Article 33 of the Staff Regulations which suggests that the procedure they prescribe can apply only to members of the temporary staff engaged for the first time by the Communities. In that respect, the Commission’s assertion that candidates newly recruited to the Commission for postings in third countries would be subject to two medical examinations, one prescribed by Article 33 of the Staff Regulations and the second by the notice of vacancy, is not convincing. Furthermore, in its reply to the applicant’s complaint, the appointing authority expressly referred to the provisions of Article 33 of the Staff Regulations and Article 13 of the CEOS.
75. It is apparent from all of the above considerations that, as far as medical monitoring procedures are concerned, the Community legislature has prescribed mechanisms which give candidates for recruitment, officials and other staff the opportunity to put their case properly by enabling them, in particular, to have a doctor of their choice involved in the procedure.
76. Given the aim of guaranteeing observance of the right to a fair hearing through the mechanisms described above, and in the absence, first, of provisions laying down a separate procedure for members of the temporary staff posted to a third country or of other relevant grounds, and second, of reasons why the second paragraph of Article 33 of the Staff Regulations should not apply in the circum stances of the present case, it must be considered that the recruitment procedure for such staff members should comply with the second paragraph of Article 33 of the Staff Regulations. In the present case, as was stated in paragraphs 69 and 70 of this judgment, the procedure followed was at variance with the provisions of the second paragraph of Article 33 of the Staff Regulations.
77. Consequently, the contested decision must be deemed to have infringed the second paragraph of Article 33 of the Staff Regulations.
78. It follows that the contested decision must be annulled, without any need to consider the other pleas presented by the applicant in connection with her claim for annulment.
The claim for damages
Arguments of the parties
79. The applicant claims that the contested decision caused her exceptional harm resulting from loss of opportunity and flouting of procedures.
80. She asks that the principle of an award of compensation on material (preparations for moving house, rent, etc.) and non-material grounds be accepted. In her reply the applicant seeks payment of the sum of EUR 1, as a provisional interim payment and subject to all necessary reservations, in compensation for the material and non-material damage suffered.
81. The Commission contends, first, that where damage is the result of conduct of the administration which is not in the nature of a decision, the administrative procedure must begin with the submission of a request as provided for in Article 90(1) of the Staff Regulations. In the present case, the applicant did not follow that procedure. Her claim for compensation is therefore inadmissible.
82. Secondly, the Commission argues that the applicant did not define the extent of the damage suffered in her application. Consequently, she did not satisfy the requirements of Article 44(1) of the Rules of Procedure of the Court of First Instance. The Commission explains that although the Court of First Instance has recognised that, in certain special cases, it is not absolutely necessary to particularise the exact extent of the damage suffered in the application, in the present case the applicant has not established or even alleged the existence of circumstances justifying such an omission.
83. Thirdly, the Commission maintains that since the contested decision is not unlawful, there is no need to grant the applicant compensation.
Findings of the Tribunal
84. Article 44(1)(c) of the Rules of Procedure of the Court of First Instance was applicable mutatis mutandis to the Civil Service Tribunal pursuant to Article 3(4) of Decision 2004/752 until the entry into force of its Rules of Procedure on 1 November 2007.
85. Since the application was lodged at the Registry of the Court of First Instance on 5 October 2005, the provisions of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance are applicable in the present case.
86. Under the terms of that article, an application must, inter alia, state the subject-matter of the proceedings and give a summary of the pleas in law on which it is based. In order to satisfy those requirements, an application for compensation for damage caused by a Community institution must contain information identifying the conduct which the applicant alleges against the institution, the reasons why he considers there to be a causal link between the conduct and the harm he claims to have suffered, and the nature and extent of that harm. A claim for any unspecified form of damages, on the other hand, is not sufficiently concrete and must therefore be regarded as inadmissible (Case 5/71 Zuckerfabrik Schöppenstedt
v Council
[1971] ECR 975, paragraph 9; orders in Cases T-505/93 Osório
v Commission
[1994] ECR-SC I‑A‑179 and II‑581, paragraph 33, and T-112/94 Moat
v Commission
[1995] ECR-SC I‑A‑37 and II‑135, paragraph 32; Case T‑175/04 Gordon
v Commission
[2007] ECR-SC I-A-0000 and II‑0000, paragraph 42).
87. In the present case it should be noted that, in claiming in her application ‘the grant in principle … of her claim for compensation, to be quantified at a later date, resulting from the material and non-material damage … inflicted by the [Commission]’, the applicant did not quantify the total sum of the harm she considers she has sustained. The fact that, in her reply, she sought an order directing the Commission to compensate her ‘for the material and non-material damage suffered, with a provisional interim payment of damages of EUR 1, subject to all necessary reservations’, also does not provide the particulars required by the case-law referred to above.
88. Nor did the applicant adduce any evidence from which the extent of the damage allegedly suffered might be assessed ( Moat
v Commission, paragraph 35). She did admittedly specify that she had suffered material damage as a result of the loss of earnings arising from the refusal to recruit her, and of her preparations for her move (letting out her apartment on a short-term lease, training courses, vaccinations, etc.). However, that summary information does not allow extent of the harm to be assessed precisely.
89. Yet, if there were such material damage the conclusion must be that it could quite easily have been quantified at the time of the complaint, and, a fortiori, when the application was made, since that material damage is based on the loss of earnings resulting from not being recruited, and on the costs incurred by the applicant in preparing for her move to Africa.
90. Furthermore, although the Community judicature has accepted that, in certain special circumstances, it is not absolutely necessary to particularise the exact extent of the alleged loss in the application or to calculate the amount of the compensation claimed (Case C-150/03 P Hectors
v Parliament
[2004] ECR I‑8691, paragraph 62; Osório
v Commission, paragraph 35), it should be pointed out that, in the present case, the applicant has not established, or even asserted, the existence of such special circumstances (see, in support of this, Osório
v Commission, paragraph 35, and Moat
v Commission, paragraph 37).
91. As regards the non-material damage, it should be emphasised that, quite apart from the complete absence of any quantification of that damage, the applicant has not placed the Tribunal in a position to assess its extent or character. Regardless of whether the compensation for non-material damage is claimed as a symbolic reparation or in order to obtain true compensation, it is for the applicant to specify the nature of the alleged non-material damage in relation to the conduct complained of against the Commission, and then to quantify, even approximately, the total of that damage ( Moat
v Commission, paragraph 38; Gordon
v Commission, paragraph 45).
92. It follows that the claim for compensation does not satisfy the conditions for admissibility.
93. A further point to be noted is that, even if the applicant had merely sought token damages, the annulment of the contested decision must be regarded as constituting, in the present case, sufficient and adequate compensation for her losses (see, in support of this, Case T-10/99 Vicente Nuñez
v Commission
[2000] ECR‑SC I‑A‑47 and II‑203, paragraph 48).
94. It follows from all of the foregoing that the action must be upheld as regards the application for annulment of the contested decision, and dismissed as regards the claim for damages.
Costs
95. Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs apply only to cases brought before the Tribunal from the date on which these Rules enter into force. The provisions of the Rules of Procedure of the Court of First Instance continue to apply mutatis mutandis to cases pending before the Tribunal before that date.
96. Under the terms of Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of the same Rules of Procedure, in proceedings between the Communities and their servants the institutions are to bear their own costs. Where each party succeeds on some and fails on other heads, the Tribunal may, under the first paragraph of Article 87(3) of the same Rules of Procedure, order that the costs be shared or that each party bear its own costs.
97. Since the Commission’s pleas have for the main part been unsuccessful, it should be ordered to pay the costs.
Operative part
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby:
1. Annuls the decision of the Director of Directorate K ‘External Service’ of Directorate-General (DG) ‘External Relations’ of the Commission of the European Communities of 15 April 2005, informing the applicant that she would not be recruited as head of administration of the Commission delegation in Guinea;
2. Dismisses the remainder of the action;
3. Orders the Commission of the European Communities to pay the costs.