JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

13 September 1995

Case T-276/94

Adam Buick

v

Commission of the European Communities

‛Officials — Leave on personal grounds — Reinstatement’

Full text in French II-667

Application for:

first, die annulment of the Commission decision not to reinstate the applicant in a post declared vacant in die ‘G-24 Coordination’ Unit of DG I, and, secondly, damages.

Decision:

Annulment of the contested decision and an order against the Commission to compensate the applicant for the material damage directly suffered by him.

Abstract of the Judgment

The applicant, whose leave on personal grounds had ended on 31 December 1991, sought reinstatement with the Commission.

By note of 7 June 1993, the Head of Unit IX.A.5 of the personnel section of the Directorate-General for Personnel and Administration informed the Head of Unit 1.1 of the Directorate-General for External Economic Relations, who had requested the publication of a vacancy notice for a post in the ‘G-24 Coordination’ Unit of DG I (hereinafter ‘the post’), that he intended, pursuant to Article 40(4)(d) of the Staff Regulations, to recommend the applicant for that post, since the latter had the necessary qualifications.

By letter of 25 June 1993, the Head of the ‘G-24 Coordination’ Unit of DG I asked the applicant whether he was interested in working in his unit. The applicant replied in the affirmative by letter of 4 July 1993.

By note of 6 July 1993, the Head of Unit 1.1 informed the Head of Unit IX.A.5 that, having examined the applicant's file, DG I considered that ‘Mr Adam Buick's qualifications do not match the profile sought’.

The applicant contacted DG IX by telephone in September 1993 (29 September 1993 according to him) and was informed at that point that the post in question would not be offered to him.

By registered letter of 17 December 1993 to the Secretariat-General of the Commission, the applicant made a complaint against the decision not to reinstate him in that post. The complaint was the subject of an express decision of rejection, which was notified to the applicant on 30 April 1994.

Admissibility

Although the applicant claims that he learnt by telephone on 29 September 1993 that the appointing authority had taken the decision not to appoint him to the post, and the Commission has doubts as to the admissibility of the applicant's complaint, the Court finds that the Commission is not in any way arguing that the applicant became aware before 29 September 1993 of the decision not to reinstate him in the post concerned. In those circumstances, the complaint, which was registered at the Secretariat-General of the Commission on 17 December 1993, was lodged within the period of three months laid down by Article 90(2) of the Staff Regulations.

Substance

The claim for the annulment of the Commission decision not to reinstate the applicant in the post, and for the annulment of the express decision rejecting his complaint

The alleged infringement of Article 40(4)(d) of the Staff Regulations

Article 40(4)(d) of the Staff Regulations imposes an obligation on the Community institutions to reinstate an official whose leave on personal grounds has come to an end in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post. The procedure for verifying the suitability of an official for reinstatement to a vacant post, having regard to die requirements of that post, which it is the task of the Community institutions to carry out subject to review by the Community judicature, must effectively run its course in such a manner that the institution in question is able to demonstrate that it has been complied with.

See: T-48/90 Giordani v Commission [1993] ECR II-721, para. 52

Since the post in question was one in the applicant's category which corresponded to, his grade, it is necessary to examine whether the decision noj to reinstate him in that post was taken after a detailed examination of his suitability in relation to the requirements of the post.

Itis clear from the note of the Head of Unit IX.A.5 of 7 June 1993 that DG IX considered that the applicant had the qualifications necessary to carry out the functions attaching to the post. Despite the fact that the requirements of the post thus appeared to correspond to the applicant's qualifications, the Head of Unit 1:1 sent a note to the Head of Unit IX. A. 5 on 6 July 1993 in which he alleged, without any justification whatsoever, that the applicant's qualifications did not correspond to the profile sought.

In its decision rejecting the complaint, the Commission gave as the only reason for its decision not to reinstate the applicant in the post that ‘one of the requirements was experience relating to transition to a market economy’. Without there being any need to rule as to whether that reasoning is well founded, given that the vacancy notice referred to experience desired and not to experience required in the area of transition to a market economy, the Court considers that there is nothing in the case-file to show that the Commission came to its conclusion that the applicant had no experience in that area after making a detailed examination of his qualifications.

In the first place, the applicant sent a letter to the Head of the ‘G-24 Coordination’ Unit on 4 July 1993, in which he stated that he would be interested in being reinstated in the post in question. It is also clear from the note of the Head of Unit 1.1 of DG I that the decision not to reinstate the applicant in that post was taken on 6 July 1993 at the latest, either before the Head of the ‘G-24 Coordination’ Unit received the applicant's letter or immediately afterwards. In any event, it is undisputed that there was no contact between the Commission and the applicant between the receipt of the applicant's request and the adoption of the decision not to reinstate him, even though such contact would have enabled the departments concerned to assess the specific knowledge and qualifications of the applicant in relation to the requirements of the post.

Secondly, whilst the applicant's curriculum vitae, which the Commission had at its disposal, did not mention that the applicant had experience in the area of transition to a market economy, the Commission was not entitled to deduce from that that die applicant had no such experience. If the information on the file of an official eligible for reinstatement does not show that the official meets all the requirements of the post concerned, the obligation to carry out a detailed examination means that the administration must ask the official for further particulars, in order to assess his qualifications in relation to the requirements of the post.

Since there is no proof, or even any indication, that there has in fact been a detailed verification of the applicant's qualifications to occupy the post in question, the Commission has not established to the requisite legal standard that it has complied with the procedure for verifying the qualifications of officials seeking reinstatement, which is governed by the rules laid down in Article 40(4)(d) of the Staff Regulations. The contested decision must therefore be annulled.

The claim for damages

The Commission's failure to undertake a detailed examination of the applicant's qualifications for the post in question constitutes maladministration capable of rendering the Commission liable to the applicant. The Commission must therefore be ordered to compensate die applicant for the material damage directly suffered by him as a result of the adoption of the contested decision.

The Court of First Instance, which cannot, eiüier at the current stage of die proceedings or in any event, take the appointing authority's place in assessing die applicant's qualifications, does not consider itself able to rule at tliis stage of Üte proceedings on die amount of any compensation which die Commission may, if appropriate, have to pay to die applicant.

Operative part:

1. The Commission's decision not to reinstate the applicant in the post at grade A 7/A 4 (COM/1816/93) declared vacant in the ‘G-24 Coordination’ Unit of DG I is annulled.

2. The Commission is ordered to compensate the applicant for the material damage directly suffered by him as the result of the adoption of the decision annulled.

3. The parties are ordered to notify to the Court of First Instance, within three months from the date of notification of this judgment, the amount of the principal sum and interest to be paid to the applicant by way of compensation, established by agreement between the parties.

4. The parties are ordered, in the absence of agreement, to submit their proposed figures to the Court of First Instance within the same period.