JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

4 September 2008

Case F-103/07

Radu Duta

v

Court of Justice of the European Communities

(Civil service – Temporary staff – Recruitment – Legal secretary – Article 2(c) of the CEOS – Act adversely affecting an official – Relationship of trust)

Application: brought under Articles 236 EC and 152 EA, in which Mr Duta seeks annulment of the memorandum of 24 January 2007 informing him that he would not be offered a post as legal secretary and, in so far as is necessary, of the decision of 4 June 2007 of the committee of the Court of First Instance of the European Communities authorised to rule on complaints, rejecting his complaint, as well as, in so far as is necessary, the referral of his candidature to the authority authorised to reconsider it, and an order for the Court of Justice to pay him the sum of EUR 1 100 000 by way of damages.

Held: The action is dismissed as inadmissible. The parties are to bear their own costs.

Summary

Officials – Actions – Act adversely affecting an official – Definition

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 2(c))

Only acts producing binding legal effects capable of affecting, directly and individually, the interests of the parties concerned by bringing about a distinct change in their legal situation can be considered to affect them adversely. In that respect, any formal procedure of appointment or engagement to a post covered by the Staff Regulations or the Conditions of Employment leads to the adoption of an act which brings about a distinct change in the legal situation of a person who has submitted his candidature after the opening of that procedure, whether it is a decision on his appointment or engagement taken by the appointing authority or by the authority authorised to conclude contracts of employment of temporary staff, or whether it is a decision rejecting his candidature adopted by either of those authorities or by one of the bodies specified by the recruitment procedure.

However, in respect of the engagement of legal secretaries within the Community courts, since no formal recruitment procedure has been opened, there are no candidatures other than that presented by the member of the Court of Justice concerned. An unsolicited candidature for such a post necessarily remains informal and cannot give rise to a judicial decision to reject it. The rejection of such a candidature does not therefore constitute an act adversely affecting an official. As a general rule, the engagement of a legal secretary does not lead to the opening of an official recruitment procedure, but is made exclusively by means of the proposal of a single name by the member of the Court of Justice concerned and by the acceptance or rejection of that name by the Court of Justice. That power of proposal is not governed by any legal rules, as the member concerned chooses freely the person whom he intends to propose, by the method which he considers appropriate. The fact that there is no systematic organisation of an official recruitment procedure for that category of temporary staff within the Community courts results from the relationship of trust between the staff concerned and the members of those courts to which they are assigned. Legal secretaries are recruited intuitu personae, the staff concerned being selected both for their professional and personal qualities and for their ability to adapt to the methods of working specific to the member concerned and those of the whole of his Chambers.

(see paras 25, 26, 29-31)

See:

C-32/92 P Moat v Commission [1992] ECR I‑6379, para. 9; judgment of 10 January 2006 in C‑373/04 P Commission v Alvarez Moreno, not published in the ECR, para. 42; C-432/04 Commission v Cresson [2006] ECR I‑6387, para. 130

T-406/04 Bonnet v Court of Justice [2006] ECR-SC I‑A‑2‑213 and II‑A‑2‑1097, paras 31 to 33