JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 November 2008

Case F-90/07

Amadou Traore

v

Commission of the European Communities

(Civil service – Officials – Vacancy notice – Rejection of the applicant’s candidature – Reassignment – Interest of the service)

Application: brought under Articles 236 EC and 152 EA, in which Mr Traore seeks annulment, first, of the decision of the Director of the External Service of the Directorate-General for External Relations at the Commission, dated 19 January 2007, rejecting his candidature for the post of chargé d’affaires ad interim at the Commission Delegation in Togo, secondly, of the decision of 12 December 2006 of the Director of Resources of the Europe Aid Cooperation Office rejecting his candidature for the post of Head of Operations at the Commission Delegation in Tanzania and, thirdly, of the decisions appointing Mr M and Mr S to those respective posts, together with an order for the Commission to pay damages of EUR 3 500 for the material and non-material harm allegedly suffered.

Held: The decision of 12 December 2006 of the Director of Resources of the Commission’s Europe Aid Cooperation Office rejecting the applicant’s candidature for the post of Head of Operations at the Commission Delegation in Tanzania and the decision to appoint Mr S to that post are annulled. The remainder of the action is dismissed. The applicant is to bear half his own costs. The Commission is to bear its own costs and to pay half of the applicant’s costs.

Summary

1. Officials – Vacancy – Appointing authority’s decision not to fill a post declared vacant but to reassign an official with his post

(Staff Regulations, Arts 4 and 29)

2. Officials – Organisation of departments – Determination of the level of a post to be filled

(Staff Regulations, Art. 7(1); Annex I, Section A)

3. Officials – Actions – Action for damages – Annulment of the illegal act in dispute – Whether appropriate reparation for non-material damage

(Staff Regulations, Art. 91)

1. Even if the appointing authority enjoys a wide discretion in that regard, it may decide not to fill a post declared vacant and to take a measure, not subject to the provisions of Articles 4 and 29 of the Staff Regulations, to reassign an official with his post only for objective reasons relating to the interest of the service, which it must explain.

(see paras 49-50)

See:

316/82 and 40/83 Kohler v Court of Auditors [1984] ECR 641, para. 22

T-32/92 Rasmussen v Commission [1993] ECR II‑765, para. 37; T‑331/00 and T‑115/01 Bories and Others v Commission [2003] ECR-SC I‑A‑309 and II‑1479, paras 150 to 153

2. Apart from the function of head of unit, for which Section A of Annex I to the Staff Regulations lays down specific rules for determining the level of the post to be filled, it follows from the general principles of law governing the organisation of the Community civil service that the level of a post to be filled must be decided according to the importance of the duties conferred on the function in question and in the light of the interest of the service alone. Article 7(1) of the Staff Regulations expressly sets out the latter requirement.

(see para. 83)

See:

T-10/94 Kratz v Commission [1995] ECR II‑1455, paras 56 to 60; T‑36/94 Capitanio v Commission [1996] ECR-SC I‑A‑449 and II‑1279, para. 57; T-37/94 Benecos v Commission [1996] ECR-SC I‑A‑461 and II‑1301, para. 56; T-3/97 Campogrande v Commission [1998] ECR-SC I‑A‑89 and II‑215, para. 30

F-122/05 Economidis v Commission [2006] ECR-SC I‑A‑1‑179 and II‑A‑1‑725

3. Save in special circumstances, the annulment of the decision contested by an official is in itself appropriate and, in principle, adequate compensation for the non-material damage suffered by the applicant.

(see para. 114)

See:

T-165/89 Plug v Commission [1992] ECR II‑367, para. 118; T‑140/97 Hautem v EIB [1999] ECR-SC I‑A‑171 and II‑897, para. 82; T-89/01 Willeme v Commission [2002] ECR-SC I‑A‑153 and II‑803, para. 97