JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

12 May 2010

Case T-491/08 P

Philippe Bui Van

v

European Commission

(Appeal — Civil service — Officials — Appointment — Classification in grade — Withdrawal of an administrative measure — Protection of legitimate expectations — Reasonable time — Right to be heard)

Application: appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission [2008] ECR-SC I-A-1-289 and II-A-1-1533 for annulment of that judgment. Cross appeal brought by the Commission.

Held: The judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission is annulled inasmuch as it awards Philippe Bui Van damages of EUR 1 500. The appeal and the remainder of the claims in the cross appeal are dismissed. The case is remitted to the Civil Service Tribunal for it to give judgment on the action for damages. The costs are reserved.

Summary

1. Officials — Principles — Protection of legitimate expectations — Conditions

(Staff Regulations, Art. 85, first para.)

2. Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Invalid plea in law

3. Acts of the institutions — Withdrawal — Unlawful acts — Conditions — Reasonable time

4. Officials — Principles — Rights of the defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope

5. Officials — Actions — Unlimited jurisdiction — Scope — Limits — Compliance with the audi alteram partem rule

(Art. 261 TFEU; Staff Regulations, Art. 91(1))

6. Community law — Principles — Rights of the defence — Audi alteram partem rule — Scope

1. Although the principle of the protection of legitimate expectations may restrict the administration’s right to withdraw an unlawful act with retroactive effect in a case where the addressee of the act has been led to rely on its apparent lawfulness, that condition is not deemed to be satisfied where there are objective circumstances which should have led the person concerned to realise the error in question or, in other words, where there are factors casting doubt on the lawfulness of the act. Thus the person cannot rely on the apparent lawfulness of the withdrawn act in particular where that act has no legal basis or was adopted contrary to the applicable rules of law. The case-law on the withdrawal, with retroactive effect, of unlawful acts conferring individual rights aims to reconcile two principles, that of the protection of legitimate expectations and that of legality. Where an official exercising due care could not fail to be aware of the unlawful nature of the act, his expectations cannot be regarded as legitimate and therefore the principle of legality is fully applicable. It follows that, despite the administration’s obligation to do everything it can to ensure that its decisions are lawful, officials cannot rely on legitimate expectations in the continuation of manifestly unlawful acts. Furthermore, the mere fact that the administration itself failed on a number of occasions to realise its error, however regrettable, cannot be relied on by the official to claim legitimate expectations on that account, given that there were objective circumstances which should have led the official in question to realise that error.

Moreover, the question whether there is an overriding public interest which takes precedence over the interest of the official concerned is relevant only where it has been proved that he was led to rely on the apparent lawfulness of the act in question and seek its continuation.

(see paras 44, 45, 49, 50, 52)

See: 14/81 Alpha Steel v Commission [1982] ECR 749, paras 10 to 12; C-248/89 Cargill v Commission [1991] ECR I-2987, para. 20; C-90/95 P de Compte v Parliament [1997] ECR I-1999, para. 39; T-20/96 Pascall v Commission [1997] ECR-SC I-A-361 and II-977, paras 75 and 76; T-66/96 and T-221/97 Mellett v Court of Justice [1998] ECR-SC I-A-449 and II-1305, para. 122; T-197/99 Gooch v Commission [2000] ECR-SC I-A-271 and II-1247, para. 56; T-416/04 Kontouli v Council [2006] ECR-SC I-A-2-181 and II-A-2-897, paras 164 to 166

2. On an appeal, a plea that is directed against a supererogatory ground of the contested judgment, the operative part of which is already sufficiently supported on other legal grounds, is irrelevant and must therefore be dismissed.

(see para. 52)

See: C-244/91 P Pincherle v Commission [1993] ECR I-6965, para. 25; T-253/06 P Chassagne v Commission [2008] ECR-SC I-B-1-43 and II-B-1-295, para. 95

3. Whether a period is reasonable must be assessed on the basis of all the circumstances of the case. A predetermined duration cannot, as a general rule, be presumed to constitute a reasonable period. The Civil Service Tribunal commits an error of law in ruling that a period of a predetermined duration may be presumed to be reasonable, even if that error does not affect the validity of the contested judgment, since in assessing whether the period was reasonable the Tribunal rejects the presumption which it had wrongly reached.

Furthermore, the importance of the act for the career of the official concerned does not affect the assessment of whether it was withdrawn within a reasonable period. The view cannot be taken that the more important an act is for the person concerned, the longer the administration has to withdraw it. On the other hand, the court may take into account, when assessing whether the period was reasonable, the fact that an act, such as an initial decision classifying an official, has produced its effects for only a short time. Since that fact influences the impact, particularly in financial terms, of the retroactive effect of the withdrawal for the official, there is no reason to preclude it as a circumstance which may be taken into account for assessing whether that period was reasonable.

(see paras 58, 60-62)

See: 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, para. 56; de Compte v Parliament; C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, para. 187; Pascall v Commission

4. As regards the right to be heard of an official to whom an act of the administration is addressed, the fact that a decision constitutes, from a procedural point of view, an act adversely affecting the official does not automatically imply, without regard to the nature of the procedure initiated against the official, that the appointing authority is under an obligation to give the official concerned a proper hearing before adopting that decision. However, with a decision which affects an official’s administrative situation, particularly in that it could affect his career by influencing his future professional prospects and leading to a reduction in his remuneration, it is necessary to apply the principle of respect for the rights of the defence, a fundamental principle of EU law, even where there are no rules governing the procedure in question. Such a decision may therefore be taken only once the official has been given an opportunity to make his views on the planned decision properly known.

(see paras 75, 77)

See: C-111/02 P Parliament v Reynolds [2004] ECR I-5475, para. 57; judgment of 6 December 2007 in C-59/06 P Marcuccio v Commission, not published in the ECR, paras 45 to 47 and the case-law cited therein

5. As regards a claim for compensation for non-material damage, even if the Courts of the European Union, when exercising the unlimited jurisdiction conferred upon them, particularly in disputes of a financial character, by Article 91(1) of the Staff Regulations, have the power to increase the amount of compensation to be awarded to the applicant compared with the amount applied for, it cannot be accepted that they can use that power without first inviting the party required to pay the increased amount to state its views on that possibility.

Furthermore, in the context of assessing the admissibility of such a claim, the application must state the subject-matter of the dispute and contain a sufficiently clear and precise summary of the pleas in law on which the application is based, in particular to enable the defendant to prepare its defence. That does not mean that an applicant must quantify the amount of the alleged damage. However, he must provide information enabling the nature and scale of the damage to be assessed in order to allow the defendant to be able to conduct its defence.

In particular, a claim for compensation for non-material damage, whether as symbolic reparation or as true compensation, must specify the nature of the damage pleaded in the light of the defendant’s alleged conduct and, even if only approximately, assess that damage in its entirety. It is true that the unlimited jurisdiction conferred on the Courts of the European Union entrusts them with the task of providing a complete solution to the disputes brought before them and enables them, even in the absence of any formal claim for such relief, not only to annul the measure in point but also, where appropriate, to order of its own motion that compensation be paid by the defendant for the non-material damage caused by maladministration on its part. However, the Courts of the European Union cannot, in principle, proceed in that manner without having first invited the parties to submit their observations on the possible award of that compensation. Consequently, the unlimited jurisdiction enjoyed by the Courts of the European Union in financial disputes between the institutions and their staff cannot be regarded as conferring on those Courts the power to absolve such disputes from compliance with procedural rules governing the principle that the parties have the right to be heard. That finding is borne out by the case-law on the fines referred to in Article 261 TFEU, from which it is clear that the possibility for the Courts of the European Union, in exercising their unlimited jurisdiction, to increase the amount of those fines cannot be used on the basis of information, circumstances or criteria which the party in question could not have expected to be taken into account. Where that party has not been given the opportunity to state its views on the possible increase or, therefore, on whether it is appropriate, or on the factors influencing its amount, the Courts should not carry out that re-assessment.

(see paras 83, 86, 88-89)

See: Opinion of Advocate General Verloren van Themaat in 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, p. 3851; C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, paras 82 and 83; C-197/09 RX-II M v EMEA [2009] ECR I-12033, paras 56 to 58 and the case-law cited therein; T-277/97 Ismeri Europa v Court of Auditors [1999] ECR II-1825, paras 28 to 30 and 81 and the case-law cited therein; T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II-2597, paras 374 to 376; T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering v Commission [2004] ECR II-2501, para. 578

6. Respect for the rights of the defence means that the parties in a case must have been given an opportunity to state their views on the facts and documents on which a judicial decision will be based, and to discuss the evidence and observations submitted to the court and the pleas in law on which it intends to base its decision. In order to satisfy the requirements relating to the right to a fair trial, it is important for the parties to be able to exchange arguments on both the facts and the points of law which are decisive for the outcome of the proceedings. That right must be understood as guaranteeing that the parties are not confronted with an entirely unexpected decision by the court. That does not mean, however, that the court must allow parties to be heard on every point of its legal assessment before delivering its judgment.

(see paras 84-85)

See: Opinion of Advocate General Kokott in C-229/05 P PKK and KNK v Council [2007] ECR I-439, paras 66 and 67; M v EMEA, para. 41 and the case-law cited therein