JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

21 March 2013

Case F‑94/11

Markus Brune

v

European Commission

(Civil service — Open competition — Annulment of a decision not to include the applicant on the reserve list — Implementation of a judgment — Principle of legality — Plea of illegality directed against the decision to reopen the competition procedure)

Application: under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Brune seeks, principally, annulment of the decision, communicated to him by a letter of 11 February 2011 from the chairman of the selection board, not to include him on the reserve list for open competition EPSO/AD/26/05.

Held: The action is dismissed. Mr Brune is to bear his own costs and is ordered to pay the costs incurred by the Commission.

Summary

1. Actions brought by officials — Act adversely affecting an official — Concept — Preparatory act — Decision of a selection board to reopen the competition procedure — Not included — Decision open to review only by way of a plea in support in an action directed against a decision not to include a candidate on the reserve list

(Staff Regulations, Arts 90 and 91)

2. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Annulment of a selection board’s decision not to include a candidate on the reserve list — Reopening of the competition solely for the applicant — Appropriate implementation method

(Art. 266 TFEU; Staff Regulations, Art. 27)

3. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Administration’s discretion — Possibility of establishing a dialogue with the victim

(Art. 266 TFEU)

1. A decision which informs a candidate who has wrongly been eliminated from a competition that the competition has been reopened and which states the conditions directly relating to the reopening of the competition procedure does not constitute an act adversely affecting that person, but is a preparatory act for the decision, taken at the end of the procedure, on whether or not to include the candidate in the reserve list for the competition. Consequently, the candidate concerned cannot bring a direct action against that preparatory decision, but can only challenge it by way of a plea in support in an action directed against the decision not to include him on the reserve list.

(see para. 37)

See:

15 July 1993, T‑17/90, T‑28/91 and T‑17/92 Camara Alloisio and Others v Commission, para. 42

2. As a consequence of a judgment annulling a decision, the institution concerned is required, by virtue of Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities as found in the judgment, which, in the case of an act that has already been executed, may take the form of restoring the applicant to the legal position he was in prior to that act.

In order to fulfil the obligation placed upon it by Article 266 TFEU, the institution must adopt specific measures capable of reversing the illegality committed in respect of the person concerned. Thus it cannot, in order to avoid that obligation, rely on any practical difficulties involved in restoring the applicant to the legal position he was in prior to the adoption of the act that has been annulled. It is only as an alternative, where it encounters major obstacles in complying with a judgment, that the institution concerned may fulfil its obligations by taking a decision capable of providing fair compensation for the detriment to the party concerned resulting from the decision which has been annulled.

In that regard, while it is for the institution concerned to determine what measures are required to comply with a judgment ordering annulment, its power of assessment is circumscribed by the need to observe the operative part and the grounds of the judgment with which it is required to comply as well as the provisions of Union law. The defendant institution must therefore, in particular, ensure that the measures adopted are not affected by the same irregularities as those identified in the judgment annulling the original act.

However, in the case of an open competition organised in order to establish a reserve pool for recruitment, the administration may seek an equitable outcome in the individual case of a candidate who has been unlawfully eliminated. Where the tests in such an open competition have been invalidated, therefore, a candidate’s rights are adequately protected if the appointing authority reopens the competition for the establishment of a reserve pool in respect of that candidate, since that reopening restores the situation prevailing prior to the occurrence of the facts found unlawful by the court. However, a solution in which the applicant is included on the reserve list from the competition without having to resit the oral test may not be adopted without infringing not only the principles of equal treatment and objective marking and the competition notice, but also Article 27 of the Staff Regulations.

(see paras 58-60, 63-67)

See:

14 July 1983, 144/82 Detti v Court of Justice, para. 33; 6 July 1993, C‑242/90 P Commission v Albani and Others, para. 13

22 June 1990, T‑32/89 and T‑39/89 Marcopoulos v Court of Justice, para. 44; 8 October 1992, T‑84/91 Meskens v Parliament, para. 78; 23 April 2002, T‑372/00 Campolargo v Commission, para. 109 and the case-law cited therein; 5 December 2002, T‑119/99 Hoyer v Commission, para. 37 and the case-law cited therein; 13 September 2005, T‑283/03 Recalde Langarica v Commission, paras 50 and 51

24 June 2008, F‑15/05 Andres and Others v ECB, para. 132 and the case-law cited therein

3. Since the administration acts unilaterally, it is for the administration to determine what measures are required in order to comply with an annulling judgment. Consequently, the administration is able, but not obliged, to establish a dialogue with the victim of an unlawful measure in order to reach an agreement offering that victim fair compensation.

(see para. 71)

See:

Meskens v Parliament, para. 80; 26 June 1996, T‑91/95 De Nil and Impens v Council, para. 34