JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

19 October 1995

Case T-562/93

Dieter Obst

v

Commission of the European Communities

‛Officials — Recruitment procedure — Act adversely affecting an official — Article 45 of the Staff Regulations — Vacancy notice — Misuse of powers — Statement of reasons — Compensation for damage’

Full text in German II-737

Application for:

— annulment of Opinion No 45/93 of the Advisory Committee on Appointments, in so far as it indicated that the applicant's candidature should not be taken into consideration;

— annulment of the Commission's decision not to accept that candidature;

— compensation for the material and nonmaterial loss allegedly suffered by the applicant.

Decision:

The Commission ordered to pay compensation; remainder of the application dismissed.

Abstract of the Judgment

Following the ‘republication’, in terms which were identical in all respects, of a vacancy notice, the applicant, who had applied for the post, brought an action for the annulment of the ‘implied decision rejecting’ his candidature, which the Court of First Instance dismissed as inadmissible on 20 May 1994 (Case T-510/93 Obst v Commission [1994] ECR-SC II-461).

After the appointment of another candidate to the vacant post and the notification to the applicant of the decision of the appointing authority not to accept his candidature, the applicant lodged a further complaint against the note of the Advisory Committee on Appointments informing him of the conclusion in its Opinion No 45/93 that his candidature for the post in question should not be considered, and against the decision of the appointing authority.

After the implied rejection of his complaint against those decisions, the applicant brought the present action.

The claim for annulment of the Opinion of the Advisory Committee on Appointments, in so far as it indicates that the applicant's candidature should not be considered

Admissibility

Only measures producing binding legal consequences liable to affect the applicant's interests directly and immediately by significantly changing his legal situation constitute acts or decisions which may be the subject of an action for annulment (paragraphs 22 and 23).

See: T-20/92 Moat v Commission [1993] ECR II-799, para. 39; T-586/93 Kolzonis v Commission [1995] ECR-SC II-203, paras 28 and 29

The Advisory Committee on Appointments (‘the ACA’) has merely advisory powers. Accordingly, its opinion is a preparatory measure and as such not liable to affect the position of the applicant under the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) or, consequently, to affect him adversely (paragraph 24).

See: T-27/90 Latham v Commission [1991] ECR II-35, para. 27; T-58/92 Moat v Commission [1993] ECR II-1443, para. 36; T-3/92 Latham v Commission [1994] ECR-SC II-83, para. 20; T-108/92 Caló v Commission [1994] ECR-SC II-213, para. 13

The applicant's argument that the appointing authority regards itself as being bound by the opinion of the ACA is not supported by any evidence in the documents in the case. The Court considers therefore that there is no need to depart from the case-law referred to above (paragraph 25).

That conclusion is not affected by the fact that the action also challenges the decision made by the appointing authority at the conclusion of the appointment procedure. The validity of a preparatory act may be challenged only indirectly in connection with an action challenging the decision rejecting a candidature taken at the conclusion of the procedure (paragraph 26).

See: T-27/90 Latham v Commission, cited above; Caló v Commission, cited above, para. 13

The claim for annulment of the Commission's decision, communicated by note of 22 March 1993, rejecting the applicant's candidature

1. The plea alleging procedural errors

With regard to the question whether the appointing authority failed to undertake its own examination of the merits of the candidates, the Court notes that it is clear from the wording of the Commission's decision of 19 July 1988 concerning the procedure for filling middle-management posts that the appointing authority is not bound by the AC A's opinion. On the basis of the findings of fact, and since the applicant has adduced no other evidence capable of showing that the appointing authority did not make the appointment in question in accordance with the procedure laid down by the decision, that head of claim must be rejected (paragraphs 32 to 34).

See: T-27/90 Latham v Commission, cited above, para. 27

As regards the decision to republish the vacancy notice, the Court held earlier in its order in Case T-510/93 Obst v Commission, against which no appeal was lodged, that the Commission cannot be accused of overstepping the bounds of the discretionary power of appraisal which the appointing authority possesses in order to seek candidates of the highest quality. It is settled case-law, first, that the appointing authority is not bound to act upon the results of a recruitment procedure initiated pursuant to Article 29 of the Staff Regulations and, secondly, that even officials who fulfil the conditions for promotion do not have a personal right to promotion. Consequently, that head of claim cannot be upheld (paragraph 35).

See: T-38/89 Hochbaum v Commission [1990] ECR II-43; C-119/94 P Coussios v Commission ECR I-1439

With respect to the allegation of irregularity in the procedure followed within the ACA, it is sufficient to state that that plea, which was not raised until the stage of the oral procedure, must in accordance with Article 48(2) of the Rules of Procedure be dismissed as inadmissible. Furthermore, the effect of the ACA's opinion that the post should be filled at A 5/A 4 level was not to exclude the applicant's candidature, since he was a Grade A 4 official (paragraph 36).

See: T-16/94 Benecos v Commission [1995] ECR-SC II-335

2. The plea alleging breach of Article 45 of the Staff Regulations

In evaluating the interests of the service and the merits to be taken into account in connection with a promotion decision under Article 45 of the Staff Regulations, the appointing authority has wide discretion. Review by the Community judicature must be confined to the question whether, having regard to the various considerations which may have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its authority in a manifestly incorrect manner (paragraph 44).

See: 26/85 Vaysse v Commission [1986] ECR 3131, para. 26; T-45/91 McAvoy v Parliament [1993] ECR II-83, para. 47

The essential puipose of the vacancy notice is to inform those concerned as accurately as possible of the nature of the conditions required to occupy the post. Therefore the vacancy notice is the legal framework which the appointing authority lays down for itself (paragraph 46).

See: McAvoy v Parliament, cited above, para. 48

The Court considers that the post in question required a specialist in the practical application of legislation on plant health. Consideration of the file discloses no evidence to support the conclusion that the assessment of the candidates' merits was vitiated by any error of fact or law (paragraphs 47 to 56).

See: Benecos v Commission, cited above, para. 50

3. The plea alleging misuse of powers or abuse of procedure

The concept of misuse of powers has a precisely defined scope and refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (paragraph 62).

See: T-80/92 Turner v Commission [1993] ECR II-1464, para. 70

In this case, the evidence adduced by the applicant is neither relevant nor consistent (paragraphs 63 to 66).

4. The plea alleging breach of the administration's duty to have regard to the welfare of its employees and of its duty of loyalty

As regards filling vacant posts, the requirements of the duty to have regard to the welfare of the employee camiot prevent the authority from adopting the measures it believes necessary in the interests of the service, since each post must be filled primarily on the basis of those interests. The Court's review must be confined to the question whether the administration has remained within reasonable bounds and has not used its authority in a manifestly incorrect manner (paragraphs 69 and 70).

See: Turner v Commission, cited above, para. 77; C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 38

In the circumstances, the Court considers that the Commission has not overstepped the bounds of its discretion; nor, therefore, has it disregarded its duty to have regard to the welfare of officials (paragraphs 71 and 72).

See: 298/81 Colussi v Parliament [1983] ECR 1131

5. The plea alleging breach of the principle of equal treatment

The applicant may not rely upon the principle of equal treatment by pleading in his own cause an unlawful act committed in favour of another (paragraphs 74 and 75).

See: T-30/90 Zoder v Parliament [1991] ECR II-207, para. 26

6. The plea alleging absence of reasons

The appointing authority is not bound to give reasons for its decisions to promote officials to candidates who are not promoted; however, it must provide reasons for its decision to reject a complaint made by a candidate who was not promoted. The total absence of reasons for an appointment decision cannot be made good by explanations provided by the appointing authority following the bringing of an action, since at that stage such explanations no longer fulfil their function, which is, first, to provide the person concerned with sufficient information to enable him to determine whether the rejection of his candidature was well founded and to decide whether it would be appropriate to bring an action before the Court and, secondly, to enable the Court to exercise its power of review. In this case, the Court considers that the applicant's candidature was not rejected in circumstances so well known to him, within the meaning of the case-law, that the Commission could be relieved of the requirement to give reasons for its decision. The mere fact that he knew of the preparatory work for the creation of the new unit was not in itself capable of supplying the applicant with sufficiently precise information as to the reasons which actually led the appointing authority to reject his candidature. Accordingly, the plea is well-founded (paragraphs 79 and 80).

See: Kotzonis v Commission, cited above, para. 105

However, the consequences of the breach of the duty to give reasons must be examined. The Court considers that annulment of the decision rejecting the applicant's candidature would constitute an excessive penalty and that an award of compensation constitutes the form of reparation which best meets both the applicant's interests and the requirements of the service. It follows that the claim for annulment must be dismissed (paragraphs 81 and 82).

The claim for a declaration that the applicant's candidatures for the post at issue were unlawfully rejected

Having regard to the order of the Court of First Instance of 20 May 1994 and to the fact that this head of claim seeks, in essence, the same result as the previous head of claim which has been dismissed, it must therefore be dismissed as well (paragraph 84).

Claims for compensation for material and nonmaterial damage

It is settled case-law that the Community can only be held liable to pay damages if a number of conditions are satisfied as regards the illegality of the conduct of the institutions complained of, the actual harm suffered and the existence of a causal link between the act and the alleged damage. In this instance, the applicant cannot plead any material loss arising from the fact that the disputed post was filled at Grade A 4, which is the applicant's present grade. Moreover, claims for compensation for material or nonmaterial damage must be rejected where they are, as in this case, closely linked with claims for annulment which have themselves been dismissed, either as inadmissible or as unfounded (paragraphs 86 to 88).

See: T-l/91 Della Pietra v Commission [1992] ECR II-2145; T-27/90 Latham v Commission, cited above, para. 43; T-3/92 Latham v Commission, cited above, para. 63

The Community judicature is under a duty to inquire of its own motion whether the Commission has satisfied its obligation to state reasons for rejecting the candidature. It follows that an applicant may not be barred from relying on that plea merely because he did not raise it in his complaint (paragraph 89).

See: T-534/93 Grynberg and Hall v Commission [1994] ECR-SC II-595

The total absence of a statement of reasons for a decision constitutes a breach of administrative duty conferring entitlement to compensation for the nonmaterial damage suffered by the applicant. The Court of First Instance points out that, given its unlimited jurisdiction in proceedings concerning pecuniary matters, it may order the defendant institution to pay compensation for the nonmaterial damage caused by the breach of duty, even in the absence of proper claims to this effect (paragraph 90).

See: Kotzonis v Commission, cited above, para. 108

In assessing the damage suffered, it is necessary to bear in mind that the applicant was compelled to bring legal proceedings in order to learn the reasons for the decision rejecting his candidature. The Court, assessing the damage suffered ex œquo et bono, considers that an award of ECU 2000 represents appropriate compensation for the applicant (paragraph 91).

Operative part:

1. The Commission is ordered to pay the applicant the sum of ECU 2000 by way of damages for breach of administrative duty.