JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

23 October 2012

Case F‑44/05 RENV

Guido Strack

v

European Commission

(Civil Service — Officials — Referral back to the Tribunal after setting aside — Waiver of immunity of the servants of an institution in respect of words spoken and documents written in the course of legal proceedings — Appointment to a post of Head of Unit — Rejection of an application — Action for annulment — Unsuccessful candidate’s interest in bringing proceedings — Authority of res judicata — Procedural defect — Weighing up the interests involved — Action for damages — Non-material damage suffered by reason of an irregularity)

Referral: back to the Tribunal of an action originally brought under Article 236 EC and Article 152 EA, by judgment of 9 December 2010 in Case T‑526/08 P Commission v Strack (‘the referral judgment’), setting aside in part the judgment of 25 September 2008 in Case F‑44/05 Strack v Commission (‘Strack v Commission’), which contained a ruling on the action brought by Mr Strack, in which he sought annulment of the decision of the Office for Official Publications of the European Communities rejecting his candidature for the post of head of the ‘Calls for tender and contracts’ unit (A 5/A 4) of that Office (‘the post at issue’), annulment of the decision to appoint Mr A to the post at issue, and an order against the European Commission to pay compensation for the non-material damage he allegedly suffered.

Held: The application for waiver of immunity is rejected as inadmissible. The claim for damages is rejected as unfounded. The decision to appoint Mr A and the decision of the Commission rejecting the applicant’s candidature are annulled. The action is dismissed as to the remainder. The Commission is to pay its own costs in Case F‑44/05 Strack v Commission, Case T‑526/08 P Commission v Strack and Case F‑44/05 RENV Strack v Commission and is to pay the costs incurred by the applicant in those cases.

Summary

1. Actions brought by officials — Jurisdiction of the Civil Service Tribunal — Request for waiver of the immunity of the parties’ representatives — Request not submitted by a national court or competent authority — Inadmissibility

(Charter of Fundamental Rights of the European Union, Arts 11 and 47; Statute of the Court of Justice, Art. 19, fifth para.; Rules of Procedure of the Civil Service Tribunal, Art. 30)

2. Actions brought by officials — Prior administrative procedure — Conduct — Time-limits

(Staff Regulations, Arts 90 and 91)

3. Actions brought by officials — Interest in bringing proceedings — Action for annulment brought by a third person against the appointment of an official or other staff member — Admissibility — Annulment constituting an excessive penalty — No effect

(Staff Regulations, Arts 90 and 91)

4. Actions brought by officials — Plea alleging a procedural irregularity — Plea ineffective since a different outcome would not have been reached under a regular procedure

5. Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a decision of appointment — Whether or not annulment constitutes an excessive penalty — Criteria for assessment — Weighing up the interests involved — Possibility for the Tribunal, on its own initiative, to order the defendant institution to pay compensation in the event of the selection procedure not being annulled

(Staff Regulations, Art. 91)

6. Officials — Recruitment — Obligation incumbent on the administration to fill a vacancy — None — Exception

7. Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a decision to appoint an official — Legitimate expectations of the official appointed following the defective selection procedure — None

(Staff Regulations, Art. 91)

8. Actions brought by officials — Actions for damages — Annulment of the illegal act in dispute — Whether reparation for non-material damage is appropriate — Limits

(Staff Regulations, Art. 91)

1. As regards an application for waiver of the immunity enjoyed by the representative of a party under Article 30 of the Rules of Procedure of the Civil Service Tribunal, that provision does not expressly state that an application for waiver of immunity for parties’ representatives may be made by one of the parties. Given that the immunity provided for in Article 30 of the Rules of Procedure is designed to protect parties’ representatives against possible prosecution and, in view of the ratio legis of that provision, the Tribunal considers that it is under no obligation to adjudicate on an application for waiver of immunity unless that application is made by a court or competent national authority. Accordingly, the Tribunal cannot grant an application for waiver of immunity made by a party, since such an application does not fall within the Tribunal’s jurisdiction.

Article 30 must be interpreted in the light of the fifth paragraph of Article 19 of the Statute of the Court of Justice, which provides its legal basis. It is also necessary to take into account in the interpretation of that provision the fact that the immunity of the parties’ representatives reflects the freedom of expression for lawyers enshrined in Article 11 of the Charter of Fundamental Rights of the European Union and in Article 10 of the European Convention on Human Rights. Although proceedings before the Tribunal are not criminal proceedings, Article 10 of that convention provides general protection for the freedom of expression of lawyers and contributes to the achievement in practice of the right to a fair hearing. Lastly, in order to interpret Article 30 of the Rules of Procedure, it is necessary to take into account Article 47(1) and (2) of the Charter, which is designed to ensure the fundamental right to an effective remedy before a tribunal, including the possibility of being advised, defended and represented.

(see paras 73-76, 79)

See:

22 December 2010, C‑279/09 DEB, paras 45 and 46

2. The duration of the pre-litigation procedure cannot, as a matter of principle, be excessive since, as a result of the various time-limits laid down in Articles 90 and 91 of the Staff Regulations, where it is initiated by a request it cannot exceed 14 months and 10 days and where it is initiated by a complaint, it cannot exceed 10 months and 10 days.

(see para. 90)

3. A claim for annulment of the decision to appoint an official or other member of staff, brought by a third party to that decision, is admissible.

Where the act to be annulled benefits an official or agent, which is the case of an appointment decision, the Courts must first determine whether annulment would constitute an excessive penalty for the irregularity committed, but that obligation on the Courts has no effect on the interest of a third party to the decision — the applicant for annulment — in bringing proceedings.

In that regard, examination by the Courts of the question whether annulment is an excessive penalty for the irregularity committed can take place only following an examination of the lawfulness of the contested decision, that examination taking into account inter alia the seriousness of the irregularity established.

However, even where annulment of a decision constitutes an excessive penalty in the light of the irregularity established, an applicant may benefit from a claim for annulment directed against that decision, since the fact that annulment of a decision vitiated by illegality constitutes an excessive penalty does not preclude the Courts upholding the claim but referring back to the administration the task of seeking a just solution of the case or even of its own motion ordering the institution to pay the applicant compensation for the irregularity committed.

(see paras 105-108)

See:

23 January 1975, 29/74 de Dapper v Parliament, para 16; 5 June 1980, 24/79 Oberthür v Commission, paras 13 and 14; 6 July 1993, C‑242/90 P Commission v Albani and Others, para 13

10 July 1992, T‑68/91 Barbi v Commission, para 36; 20 July 2001, T‑351/99 Brumter v Commission, para 97; 14 November 2006, T‑494/04 Neirinck v Commission, paras 66 and 67

22 October 2008, F‑46/07 Tzirani v Commission, para 38; 5 May 2010, F‑53/08 Bouillez and Others v Council, para 90; 29 September 2010, F‑5/08 Brune v Commission, para 18

4. In order for a procedural irregularity to justify annulment of an act of the administration it must be established that, had it not been for that procedural irregularity, the outcome of the procedure might have been different. However, the applicant is not required to show that the measure would necessarily have been different if it had not been vitiated by the procedural irregularity at issue and it is sufficient that it is not totally excluded that the administration might adopt a different decision in order for the existence of an irregularity in its formal legality to lead to the annulment of the measure concerned.

(see para. 114)

See:

21 March 1990, C‑142/87 Belgium v Commission, para. 48

13 September 2011, F‑4/10 Nastvogel v Council, para. 94

5. Where the act to be annulled benefits an official or agent, which is the case of an appointment decision, the European Union Courts must first determine whether annulment would constitute an excessive penalty for the irregularity committed.

In that regard, the inferences which the Courts draw from the irregularity of decisions adopted following a recruitment competition are not the same in the case of decisions adopted following a competition to constitute a reserve list as in the case of decisions adopted following a competition held in order to fill a particular post through an appointment. In the case of a competition to constitute a reserve list, annulment of all the individual decisions entering the names of each of the successful candidates on that list constitutes, in principle, an excessive penalty. However, in the case of decisions adopted following an internal competition to fill a particular post, the Courts of the European Union carry out a case-by-case examination, in which they take into consideration the nature of the irregularity and weigh up the interests involved.

Where the issue is a procedural irregularity in the context of an internal competition to fill a particular post, the Courts consider whether that irregularity affected examination of the applicant’s candidature only or whether it vitiated examination of all the candidatures. In the former case, the procedural irregularity must be regarded as not justifying annulment of the decision appointing the successful candidate. In the second, the Courts weigh up the interests involved, which must be assessed at the time the action is brought.

In that connection, the Courts take into consideration, first, the applicant’s interest in benefiting from a selection procedure free of any irregularities and, secondly, the interest of the official appointed following the defective selection procedure and the interest in his being able to rely in good faith on the lawfulness of the decision appointing him. Lastly, the Courts examine the interests of the service, that is to say, in particular, respect for legality, the budgetary consequences of annulment of the unlawful decision, possible difficulties in complying with the judgment delivered, any adverse effects on the continuity of the service and the danger of a deterioration in the social atmosphere within the institution.

(see paras 116-119)

See:

Bouillez and Others v Council, paras 82, 83, 85 and 87 to 89 and the case-law cited

6. Although the appointing authority is not required to pursue a selection procedure, if it decides to do so that decision must be taken on grounds that are objective and sufficient and were unknown when it began that procedure.

(see para. 122)

See:

14 April 2011, F‑113/07 Šimonis v Commission, para. 90

7. An official appointed following a defective selection procedure cannot rely on the legitimate expectation that his appointment will be maintained, even though eight years have elapsed since the adoption of the appointment decision in question, since that decision was challenged within the prescribed period. The official could not be unaware in those circumstances that his appointment would only be definitive if the unsuccessful applicant’s action were to be rejected

(see para. 123)

See:

Bouillez and Others v Council, para. 88

8. The annulment of an act of the administration contested by an official may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage which that official may have suffered, unless that official demonstrates that he suffered non-material damage separable from the irregularity justifying the annulment and incapable of being entirely remedied by that annulment. That is the case, first, where the annulled act contains an expressly negative assessment of the applicant’s abilities likely to cause him prejudice, secondly, where the irregularity committed is particularly serious and, thirdly, where annulment is deprived of all practical effect, and thus cannot constitute appropriate and sufficient reparation for the non-material damage caused by the contested act.

(see para. 128)

See:

12 May 2011, F‑66/10 AQ v Commission, paras 105, 107 and 109