JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

9 November 2004

Case T-116/03

Oreste Montalto

v

Council of the European Union

(Officials – Recruitment – Temporary agent – Vacancy notice – Recruitment procedure)

Full text in French II - 0000

Application: first, for annulment of the Council decision of 23 May 2002 appointing an additional Chairperson of a Board of Appeal and President of the Appeals Department of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 2002 C 130, p. 2) and, second, for damages.

Held: The Council decision of 23 May 2002 appointing an additional Chairperson of a Board of Appeal and President of the Appeals Department of OHIM is annulled. The remainder of the action is dismissed. The Council is ordered to pay the costs.

Summary

1. Officials – Members of the temporary staff – Staff in Grade A 1 or A 2 – Post of Chairperson of the Boards of Appeal of the Office for Harmonisation in the Internal Market – Recruitment – Consideration of comparative merits – Discretion of the administration – Limits – Respect for the conditions set by the vacancy notice and for the procedural rules adopted for the exercise of that discretion

(Council Regulation No 40/94, Arts 120(1) and 131(1))

2. Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Burden of proof

3. Officials – Actions – Action for damages – Annulment of the contested unlawful act – Adequate compensation for non-material damage

1. The authority authorised to conclude contracts of engagement has a very broad discretion when comparing the merits of the candidates, in particular where the post to be filled is at a very high level, corresponding to Grade A 1 or A 2. However, the fact remains that the exercise of that broad discretion presupposes at the very least scrupulous observance of the relevant regulations, in other words not just of the vacancy notice, but also of any procedural rules which the authority has adopted for the exercise of its discretion.

In that regard, it is for the authority authorised to conclude contracts of engagement to examine meticulously the candidates’ files and observe scrupulously the requirements set out, inter alia, in the vacancy notice, so that that authority is required to reject any candidate who does not meet one of those requirements, given that they are cumulative. The vacancy notice constitutes a legal framework which the authority authorised to conclude contracts of engagement imposes on itself and to which it must adhere strictly.

Those requirements also apply to the Administrative Board of the Office for Harmonisation in the Internal Market when it exercises the power conferred on it by Regulation No 40/94 on the Community trade mark in the procedure for the appointment of the Chairperson of the Boards of Appeal of that body. Even if it does not make that appointment itself, it has the task of drawing up the list of three candidates from which the Council will make that appointment, so that it has a wide discretion in selecting candidates and thus a decision-making role.

(see paras 63-68, 107)

See: C-35/92 P Parliament v Frederiksen [1993] ECR I‑991, paras 15 and 16; T‑356/94 Vecchi v Commission [1996] ECR-SC I‑A‑437 and II‑1251, paras 50 to 58; T‑95/01 Coget and Others v Court of Auditors [2001] ECR-SC I‑A‑191 and II‑879, para. 113; T‑158/01 Tilgenkamp v Commission [2002] ECR-SC I‑A‑111 and II‑595, para. 58; T‑73/01 Pappas v Committee of the Regions [2003] ECR‑SC I-A-207 and II-1011, paras 52 to 54

2. The Community incurs non-contractual liability only 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. It follows that, even if fault on the part of an institution is established, the Community does not incur liability unless the applicant can show that he actually suffered harm.

(see paras 125-126)

See: T‑82/91 Latham v Commission [1994] ECR-SC I‑A‑15 and II‑61, para. 72; T‑165/95 Lucaccioni v Commission [1998] ECR-SC I‑A‑203 and II‑627, para. 57; T‑172/00 Pierard v Commission [2001] ECR-SC I‑A‑91 and II‑429, paras 34 and 35

3. The annulment of an act which has been challenged in itself constitutes appropriate and, in principle, sufficient reparation for any non-material harm which the applicant may have suffered.

(see para. 127)

See: C‑343/87 Culin v Commission [1990] ECR I‑225, paras 25 to 29; T‑60/94 Pierrat v Court of Justice [1995] ECR-SC I‑A‑23 and II‑77, para. 62