JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 March 1997

Case T-35/96

Lars Bo Rasmussen

v

Commission of the European Communities

‛Officials — Vacancy notice — Annulment of the procedure in progress — Notice of competition — Post reserved for nationals of new Member States — Action for annulment — Admissibility — Articles 4 and 29 of the Staff Regulations — Principle of Üte protection of legitimate expectations — Principle of legal certainty — Misuse of powers — Action for damages’

Full text in French II-187

Application for:

first, annulment of the Commission's decision to annul die procedure relating to Vacancy Notice COM/116/94 and, so far as may be necessary, of die Commission's decision to reserve die post which was die subject of diat vacancy notice to nationals of new Member States and to publish Notice of Open Competition COM/A/929 (Head of Unit V.F.3) and also of the Commission's decision of 14 December 1995 rejecting the applicant's complaint of 14 July 1995 and, second, the Commission to be ordered to pay compensation for die nonmaterial damage suffered.

Decision:

Application dismissed.

Abstract of the Judgment

On the basis of Articles 4 and 29(l)(a) of the Staff Regulations of Officials of the European Communities (Staff Regulations), the Commission of the European Communities (Commission) published, on 13 October 1994, in Emplois d'Encadrement — Vacances d'Emplois No 32, a notice declaring vacant the post of Head of the Unit ‘Promotion of health and monitoring of diseases’ of Directorate F (‘Public health and safety at work’) of Directorate-General V (Employment, Industrial Relations and Social Affairs) (DG V) (COM/116/94 — A 3/A 4/A 5 — V.F.3, Vacancy Notice).

The applicant, a principal administrator in Grade A 5, and five other officials applied for that post.

At the end of November 1994 the Director of Directorate F of DG V sent to the Director-General the names of four candidates, including the applicant, who fulfilled the necessary requirements for appointment as Head of Unit V.F.3.

On 25 March 1995 Council Regulation (EC) No 626/95 of 20 March 1995 introducing special and temporary measures applicable to the recruitment of officials of the European Communities as a result of the Accession of Austria, Finland and Sweden (OJ 1995 L 66, p. 1, hereinafter ‘Regulation No 626/95’) entered into force. Article 1(1) of the regulation provides: ‘Notwithstanding the second and third paragraphs of Article 4, Article 5(3), Article 7(1) the third paragraph of Article 27, Article 29(l)(a), (b) and (c) and Article 31 of the Staff Regulations of Officials of the European Communities, provision may be made until 31 December 1999 for a vacant post to be filled by Austrian, Finnish and Swedish nationals up to the limit set in the context of budgetary discussions within the institutions responsible.’

On 30 March 1995 the Commission annulled the vacancy notice. The annulment was published in Emplois d'Encadrement — Vacances d'Emplois No 9 of 30 March 1995 distributed to the Commission's staff in Luxembourg by the internal mail service on 5 April 1995.

On 3 April 1995 the Commission decided to reserve the post which was the subject of the vacancy notice to a national of a new Member State.

By note dated 5 April 1995 the administration sent to the applicant a note informing him that the vacancy notice had been annulled and that, as a result, his application for the post of Head of Unit V.F.3 could not be accepted. On the same day the Director of Directorate F of DG V sent to the applicant a note informing him that the post of Head of Unit V.F.3 ‘Promotion of health and monitoring of diseases’ would be reserved for a national of one of the three new Member States.

On 5 April 1995, at 7.00 a.m., the applicant left on mission and then on holiday. He returned to Luxembourg on 25 April 1995.

On 1 June 1995 the Commission published in the Official Journal of the European Communities a notice of open competition for the filling of nine posts of Head of Unit by persons of Austrian, Finnish or Swedish nationality. The puipose of one of those open competitions, Competition COM/A/929, was to fill the post of ‘Head ofUnitV.F.3’.

The claim for annulment of the decision to annul Vacancy Notice COM/116/94 and of the decision to reserve the post concerned to a national of a new Member State

Admissibility

The fact that an institution gives an answer, on its merits, to an administrative claim that is out of time and therefore inadmissible cannot derogate from the system of mandatory time-limits established by Articles 90 and 91 of the Staff Regulations or deprive the administration of the possibility of raising, at the stage of the proceedings before the Court, a plea of inadmissibility based on the lateness of the claim and still less exempt the Court from its obligation to verify that the time-limits laid down by the Staf f Regulations have been complied with (paragraphs 29 and 30).

See: T-130/89 B v Commission [1990] ECR II-761, summary publication, para. 16; T-6/90 Petrilli v Commission [1990] ECR II-765, summary publication, para. 26; T-14/91 Weyrich v Commission [1991] ECR II-235, paras 40 to 42; T-54/90 Lacroix v Commission [1991] ECR II-749, paras 24 and 25; T-129/89 Offermann v Parliament [1991] ECR II-855, paras 31 and 34

It is for the administration to ensure that officials are effectively notified of acts concerning them individually. That being so, it cannot be required of a normally diligent official that he make sure that he obtains a publication, of whose date he is unaware, emanating from the administration, distributed by the internal mail service and concerning middle-management posts declared vacant, even though he is awaiting important decisions concerning him (paragraph 36).

The knowledge of an act, to which Article 90(2) of the Staff Regulations alludes, and which causes the period of three months for submitting a complaint to start to run, is the knowledge resulting from notification or publication of such an act, and not the knowledge which a person acquires by unofficial means (paragraph 40).

In view of all the foregoing considerations, it must be held that the applicant did not have knowledge of the two acts referred to in his claim for annulment until 25 April 1995. The applicant's complaint of 14 July 1995 was therefore brought within the time-limit prescribed by Article 90(2) of die Staff Regulations, so that the subsequent application for annulment must be held to be admissible (paragraphs 41 and 42).

Substance

The first plea in law, based on infringement of Articles 4 and 29(1 )(a) of the Staff Regulations and on breach of the principle of the protection of legitimate expectations and of legal certainty

The appointing authority is not required to continue to pursue a recruitment procedure initiated under Article 29 of the Staff Regulations if there are objective reasons, such as the need to recruit nationals of the new Member States to the institution, which justify such a decision (paragraphs 60 and 61).

See: 26/68 Fiix v Commission [1969] ECR 145, points 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-3/92 Latham v Commission [1994] ECRSC II-83, para. 50; T-507/93 Branco v Court of Auditors [1995] ECRSC II-797, para. 28; T-262/94 Baiwir v Commission [1996] ECRSC II-739, para. 67

Accordingly, the appointing authority could legitimately adopt in this case a decision annulling the procedure initiated, so long as the post remained vacant, in order to prescribe new conditions for filling the post (paragraph 62).

Finally, the applicant could not legitimately expect the appointing authority to continue its selection procedure until the last step in that procedure had been completed. In the absence of precise assurances given to him by the administration, no official may plead a breach of the principle of the protection of legitimate expectations (paragraph 63).

See: T-123/89 Chomelv Commission [1990] ECR II-131, para. 26; T-498/93 Domonvillede la Cour v Commission [1994] ECRSC II-813, para. 46

The appointing authority's right not to continue to pursue a procedure initiated under Article 29 of the Staff Regulations if there are objective reasons for such a decision means, furthermore, that the principle of legal certainty could not have been breached by the contested decisions (paragraph 65).

The second plea, alleging misuse of powers

A misuse of powers is deemed to exist only if it is proven that the appointing authority, in adopting the contested act, was pursuing an objective other than that pursued by the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act in question was adopted for purposes other than those stated. In this case, the applicant has adduced no evidence of any misuse of powers (paragraphs 70 and 71).

See: T-38/89 Hochbaum v Commission [1990] ECR II-43, para. 22; T-106/92 Frederiksen v Parliament [1995] ECRSC II-99, para. 47; T-586/93 Kotzonis v ESC [1995] ECRSC II-203, para. 73

The claim for annulment of the Commission's decision to publish Notice of Open Competition COM/A/929

Admissibility

In this case the applicant does not have an interest in bringing an action for annulment of the notice of open competition. If a post to be filled has been lawfully reserved for nationals of new Member States pursuant to a transitional recruitment system such as that set up by Regulation No 626/95, an official who, by reason of his nationality, is not eligible for the post, has no interest in contesting the decision to publish the notice of open competition which sets in motion the procedure for filling the post at issue (paragraph 78).

See: C-95/88 Laval v ESC [1990] ECR I-253, summary publication, para. 37

The claim for compensation

Liability on the part of the Community presupposes that a number of conditions are satisfied as regards the illegality of the conduct for which the institutions are criticized, actual damage and the existence of a causal link between the conduct and the harm which is alleged. A claim by an official for compensation for damage allegedly caused to him by conduct of the administration which deprived him of a possibility of promotion must be dismissed if the illegality of that conduct is not established (paragraph 82).

See: C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, para. 42; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 75; T-3/92 Latham v Commission [1994] ECRSC II-83, para. 66; T-506/93 Moat v Commission [1995] ECRSC II-147, paras 46 to 49; T-36/93 Ojha v Commission [1995] ECRSC II-497, para. 130

Since it has been held that the Commission was entitled to annul the vacancy notice and reserve the post of Head of Unit V.F.3 for nationals of the three new Member States, no charge of unlawful conduct can be made against it (paragraph 83).

Operative parts

The application is dismissed as inadmissible in so far as it seeks the annulment of the Commission's decision to publish Notice of Open Competition COM/A/929 (Head of Unit V.F.3).

For the rest, the application is dismissed as unfounded.