JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

2 February 1995

Case T-106/92

Erik Dan Frederiksen

v

European Parliament

‛Officials — Temporary occupation of a post — Lawfulness — Infringement of Article 176 of the Treaty — Misuse of powers’

Full text in French II-99

Application for:

annulment of the decision of the European Parliament of 16 June 1992 appointing Mrs X temporarily to the post of Language Adviser in the Danish Translation Division.

Decision:

Annulment.

Abstract of the Judgment

By judgment of 11 December 1991, the Court of First Instance annulled the promotion of Mrs X to the post of Language Adviser in the Danish Translation Division on the grounds that she failed to fulfil one of the essential conditions laid down in the vacancy notice and that, secondly, owing to the subjective, incomplete and inexact nature of the file forwarded to the appointing authority, the appointment was made without an objective comparison of the respective merits of the candidates (T-169/89 Frederiksen v Parliament [1991] ECR II-1403, hereinafter ‘Frederiksen I’. The Parliament brought an appeal against that judgment and made an application for suspension of compliance therewith. That application was dismissed by order of the President of the Court of Justice in Case C-35/92 PR {Parliament v Frederiksen [1992] ECR I-2399).

On 6 May 1992 the Director General for Translation and General Services proposed that Mrs X be assigned the duties of Language Adviser on a temporary basis while the appeal proceedings were pending. On 16 June 1992 the Parliament appointed Mrs X on a temporary basis to the post at issue.

By judgment of 18 March 1993, the Court of Justice dismissed as unfounded the appeal brought by the Parliament against the judgment in Frederiksen I (C-35/92 P Parliament v Frederiksen [1993] ECR I-991).

Substance

The plea in law alleging failure to comply with the judgment in Frederiksen I and the plea in law alleging misuse of powers

If an act of an institution is declared void, Article 176 of the Treaty requires the institution concerned to take the necessary measures to comply with the judgment. In order to comply with the judgment and to implement it fully, the institution must have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are indispensable for the purpose of determining the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled act (paragraph 31).

See: 97/86, 193/86, 99/86 and 215/86 Asteris v Commission [1988] ECR 2181, para. 27

That obligation relates to all acts intended to replace the annulled act, including those which replace it only on a temporary basis, for instance, while appeal proceedings are pending before the Court of Justice. That this is so clearly emerges from Article 53 of the EEC Statute and the corresponding provisions of the ECSC and the EAEC Statutes of the Court of Justice, which provide that an appeal brought against a judgment of the Court of First Instance does not have suspensory effect, unless the Court of Justice orders compliance with the judgment under appeal to be suspended, which is not the situation in this case since the Parliament's application for such an order was dismissed by the Court of Justice (paragraph 33).

The Court of First Instance considers that, unless die appointing authority proves that no other solution, in conformity with the interests of the service, was available to it, by appointing Mrs X on a temporary basis to the post at issue, it has failed to comply with the judgment in Frederiksen I in so far as it was held in that judgment that she did not possess the necessary qualifications to hold that post in the interests of the service (paragraph 37).

In the Court's opinion, the appointing authority did not seek to ascertain whether it was possible for it to fill the vacant post resulting from the judgment in Frederiksen I otherwise than by the appointment of Mrs X on a temporary basis and, by giving no consideration to the possibility of filling that vacancy by appointing the applicant, it failed to comply with the judgment in Frederiksen I and thereby infringed Article 176 of the Treaty (paragraph 45).

Having found that Article 176 of the Treaty has been infringed, the Court further considers it necessary to consider wheüier tlie defects thus ascertained disclose the existence of a misuse of powers (paragraph 46).

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 47).

See: T-80/92 Turnery Commission [1993] ECR II-1465

In considering whether the appointing authority's failure to comply with the judgment in Frederiksen I is the result of a deliberate intention to favour one applicant for a post to the detriment of all the other candidates and of the interests of the service, the Court finds, first, that the contested decision is not in conformity with the interests of the service and was not preceded by an objective examination of other possibilities of filling the post in question and, secondly, that it was taken on the basis of a proposal from the Director General for Translation and General Services which lacked the required exactitude and objectivity (paragraph 48).

The Court further finds that that objective and relevant evidence of misuse of powers is corroborated by other factors relating to the placing of the Financial Controller's endorsement stamp on the decision by a person who lacked authority for that purpose, the failure to produce certain documents to the Court — an omission which was liable to mislead it — and the situation prevailing in the Danish Translation Division since the judgment of the Court of Justice of 18 March 1993 in Parliament v Frederiksen (paragraph 49).

Operative part:

The decision of the President of the European Parliament of 16 June 1992 appointing Mrs X on a temporary basis to the post of Language Adviser in the Danish Translation Division (Directorate-General of Translation and General Services) is annulled.