Case T‑688/16

Mercedes Janssen-Cases

v

European Commission

(Civil service — Officials — Recruitment — Vacancy notice — Commission’s mediator — Competent Appointing Authority — Delegation of powers — Procedure — Consultation of the Staff Committee — Responsibility)

Summary — Judgment of the General Court (Fifth Chamber, Extended Composition), 22 November 2018

Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Damage — Causal link — Damage caused by the unlawful rejection of an application — Loss of the opportunity to advance to grade AD 14 — No direct causal link between the damage and the unlawfulness established

Although the notification to the unsuccessful candidate or candidates constitutes an act having adverse effect and must be regarded as the formal rejection of an application, which triggers the time-limit for lodging a complaint for the purposes of Article 90 of the Staff Regulations, the fact remains that the act terminating the selection procedure with the choice of a candidate also gives rise to legal effects, the inevitable consequence of which is the above-mentioned formal rejection. (see para. 22)

A delegation of power constitutes an act which deprives the delegating authority of the power delegated to the authority receiving the delegation. The delegation of power therefore has the effect of causing a transfer of powers, which prohibits the delegating authority from referring to the transferred power, without rendering its decision invalid on the ground of a lack of competence. The delegating authority may exercise the power again only where it first adopts an act under which it recovers the delegated power. In the same way as a delegation of power requires the adoption of an express act transferring the power concerned, the principle of legal certainty, which underpins the formal nature of operations involving the delegation of power, requires that the withdrawal of that delegation be made through the adoption of an express act. Assuming that the mechanism for determining the competent appointing authority laid down in Article 2(1) of the Staff Regulations must be classified as a delegation of power or treated in the same way as such a delegation, it is by disregarding the loss of competence resulting from such a delegation that a delegating authority claims to be competent itself to exercise, instead of the authority which was delegated, the power to appoint an official, where it considers it appropriate to do so. (see paras 31, 32)

Article 6(3) of the decision on the reinforced Commission Mediation Service must be interpreted as requiring that the Staff Committee be consulted by the body responsible for making the final decision closing the procedure for appointing the mediator. Furthermore, although that consultation consists merely of a right to be heard, and does not confer on the Staff Committee the right to co-decide with the decision-making body, the consultation must be such as to have an influence on the substance of the measure adopted, which implies the exercise of a broad discretion. In that context, the effectiveness of the consultation in question may be guaranteed only where the subject of the consultation is the same as the subject to be assessed by the body that is to take the final decision. Thus, the consultation of the Staff Committee must concern the same candidates as those in respect of which the body in question is required to exercise its discretion. That consultation is not effective where the Staff Committee was called upon to give its opinion in respect of only one candidate whereas the decision-making body undertook to assess several candidates before deciding which one to select. (see paras 39, 40)

In disputes arising from relations between the institutions and their officials, a right to reparation is recognised if three conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. However, the fact that another candidate was able to be selected for a post is not, in itself, detrimental to the candidates who were not ultimately selected. Even where that choice means that another candidate was considered to be more deserving on that occasion, that fact does not imply any negative assessment as regards the merit of the other candidates. (see paras 51, 53)