JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

11 September 2008

Case F-135/07

Daniele Smadja

v

Commission of the European Communities

(Civil service – Officials – Recruitment – Appointment – Classification by step – New appointment of the applicant to the same post after her first appointment was annulled by judgment of the Court of First Instance – Principle of proportionality – Principle of the protection of legitimate expectations – Duty to have regard to the welfare of officials)

Application: brought under Articles 236 EC and 152 EA, in which Ms Smadja seeks, in particular, annulment of the Commission decision of 21 December 2006 placing her in Grade A*15, step 1, with seniority in step as at 1 November 2005, following her re-appointment on 15 November 2005 to the post of Director of Directorate B (Multilateral relations and human rights) of RELEX after the annulment of her first appointment to the same post by the judgment of the Court of First Instance of 29 September 2005 in Case T‑218/02 Napoli Buzzanca v Commission [2005] ECR-SC I‑A‑267 and II‑1221.

Held: The Commission’s decision of 21 December 2006 placing the applicant in grade A*15, step 1, with seniority in step as at 1 November 2005, is annulled. The Commission is ordered to pay all the costs.

Summary

Officials – Actions – Judgment annulling a measure – Effects – Annulment, for failure to state reasons, of the rejection of a candidature and of the appointment of the successful candidate – Re-appointment of the latter following statement of reasons for the rejection

(Art. 233 EC)

Where the administration enforces a judgment annulling a measure, it is obliged, while observing the principle of res judicata, to comply with the principles of Community law, particularly the principles of proportionality and the protection of legitimate expectations, as well as its duty to have regard to the welfare of officials, which implies in particular that the competent authority should take into consideration all the factors which may affect its decision and that it should thus take into account not only the interests of the service but also those of the individual concerned.

Therefore, where a judgment has, on the ground of failure to state reasons, annulled the rejection of a candidature and, consequently, the appointment of the successful candidate, without raising any objections concerning the latter’s substantive legality, and where the administration, having reopened the procedure and stated the reasons for a second decision rejecting the ousted candidate, has decided to re-appoint the successful candidate, but awarding him a classification well below that awarded at the first appointment because of changes to the Staff Regulations in the intervening period, it is for the administration to seek a solution which, while observing the principle of res judicata, avoids reducing the successful candidate’s classification, which would constitute an unreasonable consequence of the annulment of his initial appointment, taking account of the nature of the irregularity committed, for which the administration was responsible and which was sanctioned by the court, of the interests of the service, and of the candidate’s legitimate interest in not having his classification reduced as a result of that irregularity. Thus, the administration may, without infringing the principle of res judicata or prejudicing the effects of the judgment annulling the appointment, by making the effects of the new appointment retroactive to the date of the initial appointment, ensure that the successful candidate receives the higher classification which he held on the day when the judgment was handed down. In failing to adopt such a solution or any other measure capable of reconciling the interests of the service with the legitimate interests of the candidate, the administration infringes the principle of proportionality and its duty to have regard to the welfare of officials.

(see paras 35-37, 39, 40, 45-49)

See:

24/79 Oberthür v Commission [1980] ECR 1743, para. 13; C-242/90 P Commission v Albani and Others [1993] ECR I‑3839, paras 13 and 14; C‑298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38

T-133/89 Burban v Parliament [1990] ECR II‑245, para. 27; T‑159/96 Wenk v Commission [1998] ECR-SC I‑A‑193 and II‑593, para. 121; T-114/98 and T-115/98 Rodríguez Pérez and Others v Commission [1999] ECR-SC I‑A‑97 and II‑529, para. 32; T‑357/00, T‑361/00, T‑363/00 and T‑364/00 Martínez Alarcón and Others v Commission [2002] ECR-SC I‑A‑37 and II‑161, para. 97; T-10/02 Girardot v Commission [2004] ECR-SC I‑A‑109 and II‑483, para. 86; T-218/02 Napoli Buzzanca v Commission [2005] ECR-SC I‑A‑267 and II‑1221

F-21/06 Da Silva v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para. 80;