JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

31 March 2004

Case T-10/02

Marie-Claude Girardot

v

Commission of the European Communities

(Staff case – Article 29(1) of the Staff Regulations – Permanent post remunerated on research and investment credits – Temporary agent within the meaning of Article 2(d) of the CEOS – Rejection of application – No consideration of comparative merits – Interim judgment)

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Application: for, first, annulment of the Commission’s decision of 13 March 2001 rejecting seven applications for permanent posts remunerated on research credits, secondly, annulment of the Commission’s decision of 15 March 2001 rejecting one application for a permanent post remunerated on research credits and, thirdly, annulment of the Commission’s decisions making appointments in respect of those posts.

Held: The Commission’s decision of 13 March 2001 rejecting Mrs Girardot’s application for seven permanent posts remunerated on research credits is annulled. The Commission’s decision of 15 March 2001 rejecting Mrs Girardot’s application for a permanent post remunerated on research credits is annulled. For the rest the application is dismissed. The parties are ordered to provide to the Court within a period of three months of delivery of this judgment either an agreed amount of monetary compensation attaching to the decisions of 13 and 15 March 2001 or their submissions, with figures, on that amount. Costs are reserved.

Summary

1. Officials – Recruitment – Vacant post – Post which may be filled by either an official or a member of the temporary staff – Applications received all from members of the temporary staff – Rejected without examination – Unlawful

(Staff Regulations, Arts 4 and 29(1))

2. Officials – Recruitment – Vacant post – Consideration of comparative merits – Onus on the administration to prove that such consideration was undertaken despite a consistent body of evidence to the contrary

3. Officials – Actions – Judgment annulling a decision – Effects – Annulment of the decision rejecting an application – Restoration of the person concerned to his previous legal position – Resulting annulment of subsequent acts affecting third parties – Conditions – Resulting annulment not an excessive penalty – Respect for the principles of proportionality and the protection of legitimate expectations – Interests of the service

(Staff Regulations, Art. 91(1))

4. Officials – Actions – Unlimited jurisdiction of the Court of First Instance – Possibility for the Court to order of its own motion that the defendant institution pay compensation – Possibility of asking the defendant institution to provide adequate protection for the applicant’s rights by seeking a just solution in his case

(Staff Regulations, Art. 91(1))

1. Although the structure of Article 29(1) of the Staff Regulations means that candidatures submitted in the first stage of the procedure for filling vacant posts must be considered with the utmost care, it does not mean that, in the course of that examination, account may not also be taken of the possibility of obtaining better candidates by using the subsequent stages of that procedure. The Commission may therefore prefer to go on to one of those subsequent stages, even where there are candidates who satisfy all the prescribed conditions.

However, where permanent posts remunerated on research credits are to be filled in the Commission, their vacancies are published in a ‘research special vacancy’ notice pursuant to Articles 4 and 29(1)(a) of the Staff Regulations, candidatures are received only from members of the temporary staff as defined in Article 2(d) of the Conditions of Employment of Other Servants of the European Communities, and those candidatures satisfy the prescribed conditions of admission, the Commission is not entitled to reject the candidature of a member of the temporary staff without even examining it.

(see paras 58-59)

See: 10/82 Mogensen and Others v Commission [1983] ECR 2397, para. 10; C174/99 P Parliament v Richard [2000] ECR I-6189, paras 39 and 40; T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] ECR-SC I-A-193 and II‑987, paras 38 and 39

2. Where there is a sufficiently consistent body of evidence substantiating an applicant’s argument that no real examination of the comparative merits of the candidates for a vacant post took place, it is for the Commission to show, by objective evidence amenable to judicial review, that it undertook such an examination.

(see para. 62)

See: T-25/90 Schönherr v ESC [1992] ECR II-63, para. 25; T-143/98 Cendrowicz v Commission [1999] ECR-SC I-A-273 and II-1341, para. 59

3. The annulment of an act by the Court has the effect of retroactively eliminating the annulled measure from the legal system. Where the annulled act has already been executed, reversing its effects means, as a rule, that the applicant must be restored to the legal position he was in prior to that act.

However, where restoring the position prior to the annulled act involves the annulment of subsequent acts but which relate to third parties, that resulting annulment will be ordered only if it does not appear excessive, particularly in the light of the nature of the unlawful act committed and the interests of the service.

The principles of proportionality and the protection of legitimate expectations make it necessary to reconcile the interests of the applicant, who has been the victim of the unlawful act, to have his rightful position restored, and the interests of third parties, whose legal position may have led them to entertain legitimate expectations. Various operations following on from the procedures provided for in Article 29(1) of the Staff Regulations, such as placing a successful candidate in a competition on a reserve list, promoting an official or appointing an official to a vacant post, may be regarded as creating a legal position which the person concerned may legitimately expect to be lawful.

(see paras 84-86)

See: 22/70 Commission v Council [1971] ECR 263, para. 60; 24/79 Oberthür v Commission [1980] ECR 1743, paras 11 and 13; 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, para. 30; C-242/90 P Commission v Albani and Others [1993] ECR I-3839, paras 13 and 14; C‑119/94 P Coussios v Commission [1995] ECR I-1439, para. 24; T-18/92 and T‑68/92 Coussios v Commission [1994] ECR-SC I-A-47 and II-171, para. 105; T‑159/96 Wenk v Commission [1998] ECR-SC I-A-193 and II-593, para. 121; T‑357/00, T-361/00, T-363/00 and T-364/00 Martínez Alarcón v Commission [2002] ECR-SC I-A-37 and II-161, para. 97; T-372/00 Campolargo v Commission [2002] ECR-SC I-A-49 and II-223, para. 109

4. Where a comparison of the interests involved shows that the interests of the service and the interests of third parties preclude the consequential annulment of decisions following on from a decision which has been annulled, but which led the third parties to entertain legitimate expectations, the Community judicature may, in order to ensure that the annulling judgment has a practical effect in the applicant’s interests, use the unlimited jurisdiction conferred on it in proceedings concerning pecuniary matters and order, even on its own initiative, the defendant institution to pay compensation. It may also request the institution to provide adequate protection for the applicant’s rights by seeking a just solution in his case.

(see para. 89)

See: Oberthür v Commission, para. 14; Commission v Albani and Others, para. 13; Coussios v Commission, para. 107; Wenk v Commission, para. 122