JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 June 2011

Case F-55/10

AS

v

European Commission

(Civil service — Officials — Notice of vacancy — Rejection of candidature — Legal interest in bringing proceedings — Official on invalidity — Decision to reject candidature not inseparable from decision to appoint — Distinction drawn between officials in the same function group and holding the same grade and at a different stage in their career — Correspondence between grade and post)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which AS seeks annulment, in particular, of the Commission’s decision of 30 September 2009 rejecting her application for a post as a library assistant, and an order for the Commission to pay her the total sum of EUR 30 000 as compensation for the material and non-material damage she considers she has suffered.

Held: The decision of 30 September 2009 by which the Commission rejected the applicant’s application is annulled. The Commission is ordered to pay the applicant the sum of EUR 3 000. The remainder of the action is dismissed. The Commission is ordered to pay, in addition to its own costs, three quarters of the applicant’s costs. The applicant is ordered to pay a quarter of her own costs.

Summary

1. Officials — Actions — Interest in bringing proceedings — Action directed against the rejection of a candidature for a vacant post

(Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Interest in bringing proceedings — Decision rejecting a candidate

(Staff Regulations, Arts 90 and 91)

3. Fundamental rights — Respect for private and family life — Medical confidentiality — Scope

(Charter of Fundamental Rights of the European Union, Art. 7)

4. Procedure — Application initiating proceedings — Formal requirements

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

5. Procedure — Introduction of new pleas during the proceedings — Conditions

(Rules of Procedure of the Civil Service Tribunal, Arts 35(1)(e) and 43(1))

6. Officials — Vacancy notice — Post in category AST with career restrictions — Examination of candidatures — Exclusion of candidates in category AST without career restrictions — Unlawfulness

(Staff Regulations, Arts 5(4) and 7(1); Annex XIII, Art. 10)

7. Officials — Actions — Actions for damages — Annulment of contested measure not providing adequate compensation for non-material damage — Award of monetary damages

(Staff Regulations, Art. 91)

1. The situation of an official who has automatically been retired as a result of total permanent incapacity recognised by the Invalidity Committee is a reversible situation, and an official with such invalidity, who could one day return to work, unless there is evidence to the contrary, thus retains an interest in seeking annulment of the rejection of his candidature for a post declared vacant.

(see para. 29)

See:

9 December 2010, T-526/08 P Commission v Strack, paras 73 and 74

2. In the case of an action brought by an official under Articles 90 and 91 of the Staff Regulations, where a decision to reject a candidature is inseparable from the appointment decision corresponding to that candidature, the official’s interest in obtaining annulment of those decisions must be the subject of one overall assessment.

However, that does not mean that those decisions are inseparable and that an applicant is obliged, if his action is to be admissible, to seek annulment of both decisions simultaneously. The applicant may seek annulment only of the decision to reject his candidature.

Furthermore, it is consistent with the principle of proportionality for an official, in an effort to protect the rights of third parties, to be able to seek only annulment of the decision to reject his candidature, without being forced to seek annulment of the appointment of other officials in order to prevent his action from being inadmissible.

(see paras 30-33)

See:

28 February 2008, C-17/07 P Neirinck v Commission

Commission v Strack, para. 45

3. Medical confidentiality covers, inter alia, information which a health professional acquires in the performance of his duties and which is communicated to him by a person under his care. The right to the protection of medical confidentiality, which is one aspect of the right to respect for private life, is a fundamental right protected by the Union’s legal order. Those two rights may be restricted, provided that those restrictions in fact correspond to objectives of general interest pursued by the Union and do not constitute, with regard to the objective pursued, a disproportionate and intolerable interference affecting the very substance of the rights thus guaranteed.

In that regard, and taking Article 8 of the European Convention on Human Rights as a reference point, interference by a public authority with private life, which includes a person’s right to keep his state of health confidential, may be justified provided that it is ‘in accordance with the law’, it pursues one of the objectives laid down in paragraph 2 of that article, such as ‘economic well-being’ and ‘protection of health’, and it is ‘necessary’ in order to achieve those objectives.

That does not apply to the use by an institution, in an action brought by an official, of information contained in the official’s medical file solely in order to develop an argument demonstrating that he does not have an interest in bringing proceedings.

(see paras 41, 42)

See:

13 July 1995, T-176/94 K v Commission, paras 34 to 46

4. Although the Union judicature may not of its own motion base its decision on a plea in law which has not been raised by the parties, unless it is a matter of public policy, it must nevertheless interpret an applicant’s pleas in the light of their substance rather than their legal characterisation, provided, however, that the pleas are sufficiently clearly identifiable from the application. However, irrespective of any question of terminology, the pleas must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Civil Service Tribunal to give judgment in the action, if appropriate, without having to seek further information.

(see para. 50)

See:

15 December 1961, 19/60, 21/60, 2/61 and 3/61 Fives Lille Cail and Others v High Authority; 13 December 2005, C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum, para. 45

24 February 2000, T-145/98 ADT Projekt v Commission, para. 66

26 March 2010, T-577/08 Proges v Commission, para. 21

5. Where an applicant relies, in his complaint and his action, on a plea of substantive legality, he may raise a fresh plea of substantive legality, such as infringement of the Staff Regulations, for the first time before the Civil Service Tribunal. The fact that the new plea is based on a precise legal reasoning which is substantially different from the first plea has no bearing in that respect.

(see paras 51-53)

See:

1 July 2010, F-45/07 Mandt v Parliament, paras 108 to 123

6. In providing that the appointing authority is to assign each official to a post in his function group which corresponds to his grade, Article 7(1) of the Staff Regulations prevents the appointing authority from denying certain officials access to a post corresponding to grades AST 1 to AST 7 solely on the ground that they are eligible for grade AST 11. That article and Article 5(4) of the Staff Regulations merely allow the institutions to establish a correspondence, within a function group, between grades and posts.

In that respect, the fact that the transitional provisions of Article 10 of Annex XIII to the Staff Regulations make certain officials from the former categories C and D subject to restrictions in their career does not authorise an institution, on that basis alone and for that reason alone, to reserve certain posts for them and, consequently, to prevent other officials in the same grade from having access to those posts.

The fact that an institution maintains a fundamental distinction between officials in the same grade and belonging to the same function group, for access to certain posts, is not compatible with one of the aims pursued by the reform of the Staff Regulations, which was to combine the former categories B, C and D into a single AST function group. The appointing authority cannot therefore lawfully consider separately the merits of officials in the same grade according to which of the former categories they belonged to, since the legislature’s intention was to combine them to form a single function group.

(see paras 58, 63-65)

See:

4 March 2010, C-496/08 P Angé Serrano and Others v Parliament, para. 106

7. The non-material damage suffered by an official through maladministration of a nature such as to cause the administration to incur liability entitles him to damages where the annulment of the contested unlawful measure is not in itself adequate compensation for that damage.

That is true where an institution, in unlawfully refusing to consider the candidature of an official for a post declared vacant even though the official had performed that type of duties for a number of years, causes him non-material damage for which the annulment of the unlawful measure alone is not adequate compensation, since the official is no longer able, in view of his invalidity, to benefit from any implementing measure which the institution is required to adopt.

(see paras 79, 80)

See:

7 July 2009, F-99/07 and F-45/08 Bernard v Europol, paras 103 to 107