JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

11 September 2008

Case F-51/07

Philippe Bui Van

v

Commission of the European Communities

(Civil service – Officials – Recruitment – Classification in grade and step – Incorrect classification – Withdrawal of a measure tainted with illegality – Legitimate expectations – Reasonable period of time – Rights of the defence – Right to good administration)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bui Van seeks annulment of the decision of the Director-General of the Joint Research Centre of the Commission dated 4 October 2006 reclassifying him in grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2, and the decision of the appointing authority of 5 March 2007 rejecting his complaint, and seeks the payment of one symbolic euro as compensation for the non-material damage allegedly suffered.

Held: The Commission is ordered to pay the applicant the sum of EUR 1 500 by way of damages and interest. The remainder of the action is dismissed. The applicant is to bear two thirds of his own costs. The Commission is to bear its own costs and one third of the costs incurred by the applicant.

Summary

1. Officials – Principles – Protection of legitimate expectations – Conditions

(Staff Regulations, Art. 85, first para.)

2. Acts of the institutions – Withdrawal – Unlawful acts – Conditions – Reasonable time – Calculation

(Staff Regulations, Art. 91(3))

3. Officials – Principles – Rights of the defence

(Charter of Fundamental Rights of the European Union, Art. 41(2))

1. While it must be acknowledged that any Community institution which establishes that a measure which it has just adopted is tainted with illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof, where he has not provoked the adoption of the measure by means of false or incomplete information. In that respect, the operative time for determining whether the addressee of an administrative act has acquired legitimate expectations is not the date on which the act was adopted or withdrawn but the date on which it was notified.

It is necessary to seek guidance in this regard in the case-law on the conditions justifying the recovery of overpayments by the administration, set out in the first paragraph of Article 85 of the Staff Regulations, especially the condition that the payment be patently incorrect.

Furthermore, even if the addressee of the unlawful measure had legitimate expectations, an overriding public interest, in particular in the sound management and protection of the institution’s financial resources, may prevail over the beneficiary’s interest in the maintenance of a situation which he could count on as stable.

(see paras 51, 53, 54, 56, 62)

See:

42/59 and 49/59 Snupat v High Authority [1961] ECR 53, 86 and 87; 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority [1962] ECR 253, 269 and 271; 14/81 Alpha Steel v Commission [1982] ECR 749, paras 10 to 12; 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paras 12 to 17; C-248/89 Cargill v Commission [1991] ECR I‑2987, para. 20; C‑365/89 Cargill [1991] ECR I‑3045, para. 18; C-90/95 P De Compte v Parliament [1997] ECR I‑1999, paras 35 to 37 and 39; C-183/95 Affish [1997] ECR I‑4315, para. 57 and the case-law cited therein.

T-38/93 Stahlschmidt v Parliament [1994] ECR-SC I‑A‑65 and II‑227, para. 19; T-205/01 Ronsse v Commission [2002] ECR-SC I‑A‑211 and II‑1065, para. 47; T-180/02 and T-113/03 Gouvras v Commission [2004] ECR-SC I‑A‑225 and II‑987, para. 110; T‑416/04 Kontouli v Council [2006] ECR-SC I-A-2-181 and II‑A‑2‑897, paras 161, 162 and 167; T-324/04 F v Commission [2007] ECR-SC I‑A-2-0000 and II-A-2-0000, para. 142

2. The withdrawal of an unlawful administrative measure must take place within a reasonable period which is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity, the conduct of the parties involved, whether the measure in question confers subjective rights, and the balance of interests. It must be considered, as a general rule, that a period for withdrawal corresponding to the three-month period for bringing proceedings laid down in Article 91(3) of the Staff Regulations is reasonable. Given that that period applies to the administration itself, it is appropriate to take, as the starting point, the date on which the administration adopted the measure which it intends to withdraw.

(see paras 63, 67-69)

See:

Snupat v High Authority, p. 86; Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority, p. 272; De Compte v Parliament, para. 35; C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, para. 187

T-20/96 Pascall v Commission [1997] ECR-SC I‑A‑361 and II‑977, paras 72 and 77; T-197/99 Gooch v Commission [2000] ECR‑SC I‑A‑271 and II‑1247, para. 53; T-144/02 Eagle and Others v Commission [2004] ECR II‑3381, para. 66; Kontouli v Council, para. 161

3. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle, which reflects the requirements of good administration, demands that the person concerned should have been afforded the opportunity to effectively make known his views on any matters which might be taken into account to his detriment in the measure to be taken. In that regard, Article 41(2) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000, provides that the right to good administration ‘includes ... the right of every person to be heard, before any individual measure which would affect him or her adversely is taken …’.

However, not every infringement of the rights of the defence is to be penalised by annulment of the contested measure. That is the case where the unlawfulness of the contested measure did not influence its content. Nevertheless, an unlawful act that constitutes an administrative fault is capable of giving rise to compensation.

Thus, an official to whom the administration has not afforded a hearing before adopting a decision adversely affecting him suffers non-material damage as a result of feeling that he has been presented with a fait accompli and must therefore be adequately compensated.

(see paras 72-74, 81, 84, 92-94)

See:

234/84 Belgium v Commission [1986] ECR 2263, para. 27; C‑301/87 France v Commission [1990] ECR I‑307, para. 31; C‑142/87 Belgium v Commission [1990] ECR I‑959, para. 48; C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, para. 99; C-288/96 Germany v Commission [2000] ECR I‑8237, paras 99 and 101; Limburgse Vinyl Maatschappij and Others v Commission, paras 318 and 324; C-344/05 P Commission v De Bry [2006] ECR I‑10915, paras 37 and 38

T-372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, para. 31; T-277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 64

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

11 September 2008 ( )

(Civil service – Officials – Recruitment – Classification in grade and step – Incorrect classification – Withdrawal of a measure tainted with illegality – Legitimate expectations – Reasonable period of time – Rights of the defence – Right to good administration)

In Case F‑51/07,

ACTION under Articles 236 EC and 152 EA,

Philippe Bui Van, official of the Commission of the European Communities, residing in Hettange-Grande (France), represented by S. Rodrigues and R. Albelice, lawyers,

applicant,

v

Commission of the European Communities, represented by J. Currall and G. Berscheid, acting as Agents,

defendant,

THE TRIBUNAL (Second Chamber),

composed of S. Van Raepenbusch (Rapporteur), President, I. Boruta and H. Kanninen, Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 5 June 2008,

gives the following

Judgment

1 By application received at the Registry of the Tribunal on 30 May 2007 by fax (the original being lodged on 4 June 2007), Mr Bui Van seeks annulment of the decision of the Director-General of the Joint Research Centre of the Commission of the European Communities (the ‘JRC’) dated 4 October 2006, in that it reclassifies him in grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2 (the ‘contested decision’) and the decision of the appointing authority of 5 March 2007 rejecting his complaint, and seeks the payment of one symbolic euro as compensation for the non-material damage allegedly suffered.

Legal context

2 Article 85 of the Staff Regulations of Officials of the European Communities (the ‘Staff Regulations’) provides as follows:

‘Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.

The request for recovery must be made no later than five years from the date on which the sum was paid. Where the Appointing Authority is able to establish that the recipient deliberately misled the administration with a view to obtaining the sum concerned, the request for recovery shall not be invalidated even if this period has elapsed.’

3 Under Article 13(1) of Annex XIII to the Staff Regulations, entitled ‘Transitional measures applicable to officials of the Communities’, which was introduced by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1) and which entered into force on 1 May 2004, officials who were included in a list of suitable candidates before 1 May 2006 and recruited after that date were classified, as regards the successful candidates in an open competition for grades B 5 and B 4, at grade AST 3.

4 The notice for open competition EPSO/B/23/04, which was held to constitute a reserve pool of laboratory technicians (B 5/B 4) in technical and research fields (OJ 2004 C 81A, p. 17; the ‘notice of competition’), included a footnote worded as follows:

‘These grades [B 5/B 4] are those used by the institutions under the current Staff Regulations. However, the Commission has formally transmitted to the Council a proposal to amend the Staff Regulations that would introduce a new career system. If placed on a reserve list, therefore, you may be offered a post on the basis of amended Staff Regulations, once they have been adopted by the Council. According to the rules laid down in Articles 11 and 12 of section 2 of Annex XIII to the amended Staff Regulations, grades B 5 and B 4 are to be replaced, throughout the transition period (1 May 2004 to 30 April 2006) by grade B*3 and thereafter by grade AST 3.’

Facts

5 The applicant is a successful candidate in the EPSO/B/23/04 competition.

6 After having been entered on the list of suitable candidates drawn up in December 2005 by the selection board for open competition EPSO/B/23/04, the applicant was recruited, by decision of the appointing authority of 28 June 2006, as a probationary official in function group AST, grade 4, step 2, with effect from 16 September 2006 and assigned to the Institute for Transuranium Elements in Karlsruhe (Germany) within the JRC. On 18 July 2006 the applicant acknowledged receipt of that decision, which he confirmed having read, by electronic medium, on 6 July 2006.

7 The applicant took up his duties, not on 16 September 2006, but on 1 October 2006.

8 By means of the contested decision annulling and replacing that of 28 June 2006, the applicant was classified in function group AST, grade 3, step 2, with effect from 1 October 2006. That decision was delivered to him personally on 19 October 2006.

9 By e-mail of 7 November 2006, recorded on that day to the Complaints Unit of the Personnel and Administration DG of the Commission, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations. In that complaint the applicant stated, essentially, that his reclassification three days after taking up his duties presented him ‘with a fait accompli’ and that he had resigned from his previous job for an appointment in grade AST 4, step 2.

10 On 15 December 2006, three other officials, Messrs B., H. and L., who had been recruited to the Institute for Transuranium Elements and who had likewise been reclassified from grade AST 4 to grade AST 3, also lodged a complaint against the reclassification decisions affecting them.

11 By a decision of 5 March 2007, the appointing authority rejected the applicant’s complaint. However, it upheld the complaints from the other three officials mentioned above.

Forms of order sought

12 The applicant claims that the Tribunal should:

– declare the application admissible;

– annul the decision of 5 March 2007 rejecting his complaint;

– annul the contested decision;

– specify to the appointing authority the effects that the annulment of the contested decision entails, especially as regards his classification, the backdating of the appointment to the date on which he took up his duties, the difference in remuneration, the interest for arrears and promotion;

– award him one symbolic euro by way of damages for non-material loss;

– order the Commission to pay the costs.

13 The Commission contends that the Tribunal should:

– dismiss the application;

– make an appropriate order as to costs.

Law

A – The claims, first, for annulment of the decision of 5 March 2007 and, secondly, that the Tribunal specify the effects that annulment of the contested decision would entail

14 Although the forms of order sought by the applicant are directed primarily at annulment of the appointing authority’s decision of 5 March 2007 dismissing the complaint lodged on 7 November 2006 under Article 90(2) of the Staff Regulations, in accordance with established case-law this action has the effect of bringing before the Tribunal the act adversely affecting the applicant against which the complaint was submitted (to that effect, see, in particular, Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8, and Case F‑100/05 Chatziioannidou v Commission [2006] ECR‑SC I‑A‑1‑129 and II‑A‑1‑487, paragraph 24). It follows that the object of the present action is annulment of the contested decision, taken on 4 October 2006, reclassifying the applicant to grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2.

15 Consequently, the plea formally directed against the decision rejecting the complaint must be considered as being equally directed against the contested decision and merges with the main claim for annulment raised against that decision.

16 Secondly, the applicant asks the Tribunal to specify the effects that annulment of the contested decision would have.

17 In this regard, it is sufficient to point out that the Tribunal may not give directions to a Community institution (see, in particular, Case T‑156/89 Valverde Mordt v Court of Justice [1991] ECR II‑407, paragraph 150, and Case F‑17/05 De Brito Sequeira Carvalho v Commission [2006] ECR‑SC I‑A‑1‑149 and II‑A‑1‑577, paragraph 134), apart from the general obligation, set out in Article 233 EC, for the institution whose act has been declared void to take the necessary measures to comply with the judgment annulling it.

18 As a result, the plea seeking to have the Tribunal issue orders is inadmissible and must therefore be dismissed.

1. Admissibility of the action for annulment

a) Arguments of the parties

19 The Commission observes that the essential argument set out in the applicant’s complaint is that the applicant had accepted the offer of appointment in grade AST 4. The expression ‘legitimate expectations’ was not used in the complaint, but the institution accepts that the applicant’s intention was to rely on that principle.

20 Nor, according to the Commission, was there any mention in the complaint of an alleged infringement of the principle of equal treatment. The Commission nevertheless recognises that the applicant could not raise this aspect until he had received a reply to his complaint and compared it with those given to the three other persons who had made similar complaints. In these circumstances, the Commission considers that the applicant could reasonably be excused for not complying strictly with the rule requiring consistency between the complaint and the application.

21 The applicant maintains that, according to case-law, it is not the purpose of Article 91(2) of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint (Case 52/85 Rihoux and Others v Commission [1986] ECR 1555, paragraph 12). Hence the submissions and arguments made to the Community Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it (Rihoux and Others v Commission, paragraph 13).

22 The applicant also points out that in its judgment in Del Amo Martinez v Parliament (Case 133/88 [1989] ECR 689, paragraph 11), the Court of Justice emphasised that since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind.

23 In the present case, the applicant observes that he lodged his complaint without the assistance of a lawyer and that in support of his complaint he relied on a reclassification error, in that he had allegedly been presented with a fait accompli and had not been classified in the grade that had led him to resign from his previous post. He maintains that the pleas raised in support of his action should be considered admissible in that they are closely linked to this head of claim.

b) Findings of the Tribunal

24 According to settled case-law, the subject-matter of the forms of order sought in actions brought by officials must be the same as that set out in the prior administrative complaint and the heads of claim must be based on the same legal basis as that relied on in the complaint (see, to that effect, Case T‑193/96 Rasmussen v Commission [1998] ECR‑SC I‑A‑495 and II‑1495, paragraph 47, and Case F‑31/07 Putterie-De-Beukelaer v Commission [2008] ECR‑SC I‑A‑0000 and II‑0000, which is the subject of an appeal pending before the Court of First Instance in Case T‑160/08 P, paragraph 43). However, those heads of claim may be developed by the submission of pleas and arguments not necessarily appearing in the complaint, but which are closely linked to it (Case C‑62/01 P Campogrande v Commission [2002] ECR I‑3793, paragraph 34; Case T‑58/91 Booss and Fischer v Commission [1993] ECR II‑147, paragraph 83; Case T‑496/93 Allo v Commission [1995] ECR‑SC I‑A‑127 and II‑405, paragraph 26; order in Case T‑293/02 Vranckx v Commission [2003] ECR‑SC I‑A‑187 and II‑947, paragraph 41; and Case T‑165/04 Vounakis v Commission [2006] ECR‑SC I‑A‑2‑155 and II‑A‑2‑735, paragraph 27).

25 In the present case, it is common ground that the subject-matter of the complaint and the action is the decision to reclassify the applicant, with retroactive effect, to grade AST 3, step 2, whereas when he was recruited he had been classified in grade AST 4, step 2. Furthermore, the heads of claim contained in the action rest on the same bases as those on which the complaint is grounded, namely the fact that the applicant had been denied the grade for which he claims to have resigned from his previous job and had been presented with a fait accompli. The plea based on infringement of the principle of the protection of legitimate expectations is therefore closely linked to these heads of claim.

26 Furthermore, as the Commission acknowledges, it was precisely the appointing authority’s response to the applicant’s complaint in comparison with that given to the complaints of Messrs B., H. and L. that led the applicant to raise, in his action, a plea based on infringement of the principles of equal treatment and non-discrimination.

27 It follows from the foregoing that the plea of inadmissibility raised by the Commission against the claim for annulment or, at least, the doubts expressed by the Commission in that regard must be dismissed.

2. Merits of the action for annulment

28 In support of his action, the applicant raises two pleas based, first, on infringement of the principles of equal treatment and non-discrimination and, second, on a manifest error of assessment and infringement of the principles of legal certainty and the protection of legitimate expectations.

29 The second plea can appropriately be examined first.

a) The second plea, alleging a manifest error of assessment and infringement of the principles of legal certainty and the protection of legitimate expectations

Arguments of the parties

30 In his second plea, the applicant states at the outset that, according to settled case-law, the withdrawal of an unlawful measure is permissible, provided that the withdrawal occurs within a reasonable time and provided that the institution that issued it has had sufficient regard to how far the addressee of the measure might have been led to rely on the lawfulness of the measure. If those conditions are not met, the withdrawal is contrary to the principles of legal certainty and of the protection of legitimate expectations and must therefore be annulled (Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paragraphs 12 and 17).

31 The applicant alleges that in the present case the appointing authority committed an error of assessment by taking as the starting point for calculating the reasonable period the date of notification of the decision to appoint, that is to say 6 July 2006, and not the date on which the initial appointment decision was adopted, namely 28 June 2006.

32 Although the date to be taken into account for assessing the acquisition of legitimate expectations is the date on which the applicant was notified or became aware of the measure, according to the applicant the same does not apply when it comes to assessing the period available to the administration to withdraw an unlawful measure. In his view, that period does not depend on notification of the unlawful act to the person concerned and runs between the date of its adoption and the date of its withdrawal, irrespective of its notification, which is a formality as far as the addressee of the measure is concerned.

33 Consequently, the period to be taken into consideration for calculating the reasonable period in the present case is, according to the applicant, the period between the date on which the initial decision to appoint was adopted (28 June 2006) and the date on which that measure was withdrawn (4 October 2006), a period of three months and seven days.

34 Secondly, the applicant complains that the appointing authority regarded as reasonable, within the meaning of the case-law, the period of more than three months which elapsed before it withdrew the decision of 28 June 2006.

35 According to case-law, the reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties involved (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 187, and Case T‑144/02 Eagle and Others v Commission [2004] ECR II‑3381, paragraph 66).

36 In the present case, well before the appointment of the applicant on 28 June 2006, the administration had adopted three decisions appointing Messrs B., H. and L., on 7 April, 2 May and 12 May 2006 respectively, which contained the same classification error, so that a period of more than three months between the appointment of the applicant on 28 June 2006 and its withdrawal on 4 October 2006 was manifestly not, in the view of the applicant, reasonable in view of the circumstances of the case and in particular the significance that classification in a lower grade had for the person concerned.

37 The applicant also calls on the Commission to explain why, if it considered that a reasonable period in the present case was four months, it withdrew the decision to reclassify Mr L. If one follows the reasoning of the Commission, according to which the reasonable period for the withdrawal of an unlawful measure extends from notification of the measure to notification of its withdrawal, the appointing authority would have been within the reasonable period of four months to withdraw the initial appointment of Mr L., 3 months and 23 days having elapsed between notification of the relevant measure and its withdrawal. The applicant maintains that it follows that the administration treated the applicant and his colleague, Mr L., differently.

38 Finally, the applicant relies on infringement of the principle of the protection of legitimate expectations in so far as, when he learnt of the appointment decision of 28 June 2006, he was entitled to have confidence in the apparent lawfulness of the decision and to argue that it should be upheld. Although it is true that a footnote to the notice of competition refers to ‘a [Commission] proposal to amend the Staff Regulations’ introducing ‘a new career system’, the terms used (namely ‘[successful candidates in this competition] may be offered a post on the basis of amended Staff Regulations ...’) could, in the view of the applicant, be interpreted as meaning that there was simply an option to recruit on the basis of the amended Staff Regulations.

39 The Commission observes, as a preliminary matter, that the notice of competition drew the attention of candidates in the disputed competition to the fact that, if appointed, they would be classified in grade B*3 or, where applicable, in grade AST 3. According to the Commission, it was only because of an error on the part of the Institute for Transuranium Elements, which was discovered at the end of September 2006 by the Human Resources Unit of the JRC, that appointment to grade AST 4 had initially been decided. The Commission maintains that that error was an obvious one. Once it had been realised, a decision rectifying the error was rapidly taken on 4 October 2006 by the Director-General of the JRC and notified to the applicant on 19 October 2006 during a discussion in which the applicant was allegedly informed of the financial consequences and the means of redress available.

40 The Commission points out that, according to case-law, where a measure is tainted with illegality the institution which adopted it has the right to withdraw it within a reasonable period, with retroactive effect (Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 10; Consorzio Cooperative d’Abruzzo v Commission, paragraph 12; Case C‑248/89 Cargill v Commission [1991] ECR I‑2987, paragraph 20; and Case T‑197/99 Gooch v Commission [2000] ECR‑SC I‑A‑271 and II‑1247, paragraph 53).

41 In the present case, according to the Commission, the illegality, which the applicant does not appear to dispute, was obvious from a reading of Article 13 of Annex XIII to the Staff Regulations.

42 As regards the reasonable period, the Commission argues that, according to case-law, the operative time for determining whether the addressee of an administrative act has acquired legitimate expectations is not the date on which the act was adopted but the date on which it was notified (Case C‑90/95 P De Compte v Parliament [1997] ECR I‑1999, paragraph 35, and Case T‑20/96 Pascall v Commission [1997] ECR‑SC I‑A‑361 and II‑977, paragraph 79). Hence, such expectations could not exist if the applicant himself did not know of the existence of the measure on which they are supposedly based. Similarly, the time at which expectations are damaged should, according to the Commission, be the date of notification of the second measure withdrawing the first.

43 Hence, the Commission considers that the period for withdrawal of the initial appointment decision began, in any case, on 18 July 2006, the date on which the applicant acknowledged receipt of the first letter of appointment (or 6 July 2006, the date on which the measure was sent electronically). The period for effecting withdrawal was terminated on 19 October 2006 by notification of the decision withdrawing the first incorrect measure.

44 In the submission of the Commission, this position accords with the solution established by the second indent of Article 90(2) of the Staff Regulations regarding determination of the start of the period for lodging complaints against individual measures, the period commencing ‘on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’.

45 Furthermore, the Commission considers that a period of three months and one day is reasonable. It points out that the reasonableness of a period must be assessed in the light of the circumstances of the case and that the period for lodging a complaint or commencing proceedings in staff cases may, in that regard, serve as a valid benchmark for assessing whether or not the period for the withdrawal of a measure creating rights is reasonable.

46 The fact that some judgments in other areas of Community law lay down a period of the order of two months is, according to the Commission, because they rely on the period of two months laid down in Article 230 EC for the bringing of proceedings. The Commission deduces from this case-law that the reasonable period for withdrawal should be slightly longer than the applicable period for bringing proceedings.

47 The Commission maintains that, where staff cases are concerned, there is another even more relevant period, namely the period laid down for the appointing authority to respond to a complaint, which is set at four months in the last subparagraph of Article 90(2) of the Staff Regulations. In the view of the Commission, that longer period for the appointing authority than for the official takes account of the fact that, unlike each official taken individually, the institution must deal with a multitude of cases simultaneously, demanding numerous internal consultations (see, to that effect, Alpha Steel v Commission, paragraph 12).

48 The Commission submits, primarily, that the period to be taken into account must run from 18 July 2006 (or even from 6 July 2006) to 19 October 2006 and is reasonable in the light of the case-law. It adds that the period used in the case of Mr L. was not 3 months and 23 days (from the date of acknowledgement of receipt of the initial measure), but 4 months and 5 days (from the date of its notification) and was therefore longer than the benchmark period of four months. According to the applicant himself, that period in his case was only 3 months and 13 days. Hence, according to the Commission, the argument is misconceived on the facts.

49 In the alternative, the Commission considers that, even if a period slightly longer than three months were to be regarded as excessive, account would have to be taken of the fact that the appointment decision is normally adopted at a given date but takes effect at another date, as is evident from Article 3 of the Staff Regulations.

50 The Commission deduces from this that, as an exception to the general rule that it is the date on which the measure is notified that is taken into account, legitimate expectations are not acquired until the date on which the decision takes effect, it being impossible for the person concerned to have such expectations until he is actually in the situation created by the appointment decision. That situation did not come into existence in the present case until 1 October 2006, the actual date on which the applicant took up his duties. On the basis of that analysis, the period between the date on which legitimate expectations were acquired and the date of notification of withdrawal was, according to the Commission, only two weeks and five days (from 1 to 19 October 2006). The Commission maintains that that period is significantly less than is considered reasonable.

Findings of the Tribunal

51 It must be pointed out at the outset that the retroactive withdrawal of a favourable administrative act is generally subject to very strict conditions (see Case 54/77 Herpels v Commission [1978] ECR 585, paragraph 38, and De Compte v Parliament, paragraph 35). Hence, according to settled case-law, while it must be acknowledged that any Community institution which establishes that a measure which it has just adopted is tainted with illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof (Alpha Steel v Commission, paragraphs 10 to 12; Consorzio Cooperative d’Abruzzo v Commission, paragraphs 12 to 17; Cargill v Commission, paragraph 20; Case C‑365/89 Cargill [1991] ECR I‑3045, paragraph 18; De Compte v Parliament, paragraph 35; and Case T‑416/04 Kontouli v Council [2006] ECR‑SC I‑A‑2‑181 and II‑A‑2‑897, paragraph 161).

52 That case-law calls for the following clarifications.

– Legitimate expectations

53 First, as regards the need to fulfil legitimate expectations, it is apparent from the case-law that the operative time for determining whether the addressee of an administrative act has acquired legitimate expectations is not the date on which the act was adopted or withdrawn but the date on which it was notified (De Compte v Parliament, paragraph 36, and Kontouli v Council, paragraph 162).

54 Furthermore, the beneficiary cannot rely on legitimate expectations where he has provoked the adoption of the measure by means of false or incomplete information (Joined Cases 42/59 and 49/59 Snupat v HighAuthority [1961] ECR 53, 87; Case 14/61 Hoogovens v High Authority [1962] ECR 253, 269; De Compte v Parliament, paragraph 37; and Kontouli v Council, paragraph 163).

55 As concerns, in particular, the retroactive withdrawal of a measure conferring subjective rights or similar advantages on an official, the requirement that the addressee of the measure in question have legitimate expectations cannot be regarded as having been met if the illegality justifying the withdrawal could not escape the notice of a normally diligent official, who, in view of his ability to carry out the necessary checks, cannot be absolved from the duty to make every effort to be attentive and verify.

56 It is necessary to seek guidance in this regard in the case-law on the conditions justifying the recovery of overpayments by the administration, set out in the first paragraph of Article 85 of the Staff Regulations, especially the condition that the payment be patently incorrect, such that the recipient could not have been unaware of it (Case T‑38/93 Stahlschmidt v Parliament [1994] ECR‑SC I‑A‑65 and II‑227, paragraph 19; Case T‑205/01 Ronsse v Commission [2002] ECR‑SC I‑A‑211 and II‑1065, paragraph 47; Joined Cases T‑180/02 and T‑113/03 Gouvras v Commission [2004] ECR‑SC I‑A‑225 and II‑987, paragraph 110; and Case T‑324/04 F v Commission [2007] ECR II‑0000, paragraph 142). These requirements precisely reflect the need to fulfil the legitimate expectations of the addressee of the measure in so far as he was able to have confidence in the lawfulness of that measure.

57 The notice of competition in the present case included the footnote reproduced in paragraph 4 of this judgment.

58 A simple reading of that footnote should have led any normally diligent official who was successful in the EPSO/B/23/04 competition to question the correctness of his classification at the time of recruitment if that classification did not correspond to grade B*3 or grade AST 3, particularly as the Council of the European Union approved the amended Staff Regulations on 22 March 2004, which were published in the Official Journal of the European Union on 27 April 2004, whereas the notice of competition, published on 31 March 2004, provided for applications to be submitted by 30 April 2004 at the latest. That means that at that date there could be no doubt about the applicability of the amended Staff Regulations, and in particular of Annex XIII thereto, when successful candidates in that competition were recruited.

59 In these circumstances, even supposing that he could not determine the precise extent of the error made by the administration, the applicant should normally have had doubts whether the decision in question was well founded, such that he should at the very least have contacted the administration so that it could carry out the necessary checks (see, by analogy, Case T‑14/99 Kraus v Commission [2001] ECR‑SC I‑A‑7 and II‑39, paragraph 41, and F v Commission, paragraph 157).

60 Moreover, as regards the applicant’s argument that the illegality escaped the notice of the administration itself four times, since it also related to Messrs B., H. and L., it must be emphasised that in the present case it is not a question of determining whether the error did or did not escape the notice of the administration but of ascertaining whether the person concerned could or could not have confidence in the lawfulness of his initial classification. In any case, the situation of an administrative authority, which is responsible for thousands of administrative decisions of all kinds, cannot be compared to that of an official who has a personal interest in checking his classification in a grade and step at the time of recruitment (see, by analogy, Case 252/78 Broe v Commission [1979] ECR 2393, paragraph 11).

61 If follows that on 6 July 2006, when he learnt of the decision of 28 June 2006, the applicant could not have confidence in the apparent lawfulness of that measure. Consequently, he cannot, on the basis of that fact alone, claim to have had legitimate expectations that it was lawful.

– The balance of interests

62 Secondly, even if the addressee of the unlawful measure had legitimate expectations, it is clear from the case-law that an overriding public interest, in particular in the sound management and protection of the institution’s financial resources, may prevail over the beneficiary’s interest in the maintenance of a situation which he could count on as stable (see, to that effect, Snupat v HighAuthority, p. 87; Hoogovens v High Authority, p. 274; De Compte v Parliament, paragraph 39; Case C‑183/95 Affish [1997] ECR I‑4315, paragraph 57 and the case-law cited; and Kontouli v Council, paragraph 167). That balance of interests must also be taken into account in assessing the reasonableness of the period for withdrawal, as pointed out in paragraph 67 of this judgment.

– The reasonable period

63 Thirdly, it is settled case-law that the withdrawal of an unlawful administrative measure must take place within a reasonable period (De Compte v Parliament, paragraph 35; Pascall v Commission, paragraphs 72 and 77; Gooch v Commission, paragraph 53; and Kontouli v Council, paragraph 161).

64 A preliminary point to be noted is that, as a result of the reform of the Staff Regulations, the second paragraph of Article 85 of those regulations provides that ‘the request for recovery must be made no later than five years from the date on which the sum was paid’, unless the administration is able to establish fraud on the part of the recipient.

65 The second paragraph of Article 85 of the Staff Regulations cannot, however, be interpreted as meaning that, in certain circumstances, the administration may be entitled to withdraw any incorrect measure on which an overpayment is based and the adoption of which may date back even more than five years.

66 Article 85 of the Staff Regulations relates only to the circumstances in which an overpayment to an official by the administration may be recovered irrespective of the reason for the incorrect payment; it is not intended to govern the actual withdrawal of unlawful acts, which necessarily occurs before any recovery of the overpayment.

67 As regards the withdrawal of an administrative measure, it is settled case-law that the reasonableness of the period for withdrawal is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties involved (Limburgse Vinyl Maatschappij and Others v Commission, paragraph 187, and Eagle and Others v Commission, paragraph 66). Account must also be taken of whether the measure in question confers subjective rights and of the balance of interests (see, to that effect, Snupat v HighAuthority, p. 87, and Hoogovens v High Authority, p. 272), which in the case in point is between the beneficiary’s interest in the maintenance of a situation which he could count on as stable and that of the administration to uphold the lawfulness of individual measures and to protect the institution’s financial resources.

68 In the light of the foregoing, it must be considered, as a general rule, that a period for withdrawal corresponding to the three-month period for bringing proceedings laid down in Article 91(3) of the Staff Regulations is reasonable.

69 As regards the method of calculating the period for withdrawal in order to assess whether or not it is reasonable, given that that period applies to the administration itself, it is appropriate to take, as the starting point, the date on which the administration adopted the measure which it intends to withdraw.

70 In the present case, 3 months and 21 days elapsed between 28 June 2006, the date on which the initial classification decision was adopted, and 19 October 2006, the date on which the applicant was informed that the administration considered that decision to be unlawful. Several circumstances warrant being taken into account:

– first, as is apparent from paragraphs 57 to 61 of this judgment, the applicant did not prove particularly diligent, in that he did not ask the administration to carry out the necessary checks in the light of the footnote to the notice of competition;

– secondly, the classification decision at the recruitment stage is a decision of essential importance for the entire career path of the person concerned, which reinforces the need to uphold the principle of legality as opposed to the principle of legal certainty, which cannot be applied absolutely;

– thirdly, Article 13(1) of Annex XIII to the Staff Regulations, which is the basis of the contested decision, is particularly clear and unequivocal;

– fourthly, the initial classification decision did not, in reality, take effect until 1 October 2006, so that it had effects only during a very short period of 19 days.

71 In these circumstances, the time the Commission took to withdraw the decision of 28 June 2006, counting from the date on which it was adopted, must be considered reasonable, even though that period is slightly longer than the period for bringing proceedings laid down in Article 91(3) of the Staff Regulations.

– The rights of the defence

72 Finally, according to settled case-law, observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question (see, in particular, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 27; Case C‑288/96 Germany v Commission [2000] ECR I‑8237, paragraph 99; Case C‑344/05 P Commission v De Bry [2006] ECR I‑10915, paragraph 37; Case T‑277/03 Vlachaki v Commission [2005] ECR‑SC I‑A‑57 and II‑243, paragraph 64).

73 That principle, which reflects the requirements of good administration, demands that the person concerned should have been afforded the opportunity to effectively make known his views on any matters which might be taken into account to his detriment in the measure to be taken (see, to that effect, Case 234/84 Belgium v Commission, paragraph 27; Case C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, paragraph 99; Commission v De Bry, paragraph 38; Case T‑372/00 Campolargo v Commission [2002] ECR‑SC I‑A‑49 and II‑223, paragraph 31; and Vlachaki v Commission, paragraph 64).

74 In that regard, Article 41(2) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), provides that the right to good administration ‘includes:

– the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

…’.

75 The principal aim of the charter, as is apparent from its preamble, is to reaffirm ‘the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice ... and of the European Court of Human Rights’ (see, to that effect, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 38).

76 Moreover, by solemnly proclaiming the Charter of Fundamental Rights of the European Union, the European Parliament, the Council and the Commission necessarily intended to give it particular significance, account of which must be taken in this case in interpreting the provisions of the Staff Regulations and the Conditions of Employment of other servants of the European Communities (Case F‑1/05 Landgren v ETF [2006] ECR‑SC I‑A‑1‑123 and II‑A‑1‑459, paragraph 72, which is the subject of an appeal pending before the Court of First Instance in Case T‑404/06 P).

77 It must also be remembered that observance of the rights of the defence, and more specifically the right of the official to make known his views on any matters which might be relied on to his detriment as the basis of a decision adversely affecting him, is an essential procedural requirement, breach of which may be raised by the Court of its own motion (see, by analogy, Case C‑291/89 Interhotel v Commission [1991] ECR I‑2257, paragraph 14; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67; Joined Cases T‑186/97, T‑187/97, T‑190/97 to T‑192/97, T‑210/97, T‑211/97, T‑216/97 to T‑218/97, T‑279/97, T‑280/97, T‑293/97 and T‑147/99 Kaufring and Others v Commission [2001] ECR II‑1337, paragraph 134; see also Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 487).

78 The Tribunal may therefore examine of its own motion whether, in the present case, the Commission observed the applicant’s rights of defence in the context of the administrative procedure that led to the adoption of the contested decision.

79 As to the facts, it must be found, as the Commission acknowledged at the hearing, that the applicant was not afforded the opportunity to present his observations and provide explanations before the adoption of the contested decision.

80 Consequently, the Commission must be taken to have infringed the applicant’s rights of defence.

81 Nevertheless, it is also settled case-law that not every infringement of the rights of the defence is to be penalised by annulment of the contested measure. That is the case where the unlawfulness of the contested measure did not influence its content (see, to that effect, Case C‑301/87 France v Commission [1990] ECR I‑307, paragraph 31; Case C‑142/87 Belgium v Commission [1990] ECR I‑959, paragraph 48; Germany v Commission, paragraph 101; and Limburgse Vinyl Maatschappij and Others v Commission, paragraphs 318 and 324).

82 In the present case, it is common ground that the observations submitted by the applicant to the Tribunal contain no material over and above that already available to the Commission and of which the applicant was aware. In those circumstances, the fact that the applicant was not afforded the opportunity to submit his observations before the adoption of the contested decision was not such as to influence the content of that decision, which could not in any case have been different, as is apparent from the explanations set out above.

83 Consequently, infringement of the applicant’s right to a hearing before adoption of the contested decision cannot, of itself, be held to justify its annulment.

84 It nevertheless remains the case that the administration, for that very reason, committed an unlawful act that constituted a fault on its part capable of giving rise to compensation. That issue is examined in paragraphs 92 to 94 of this judgment.

85 In the light of all of the foregoing, the second plea must be dismissed.

b) The first plea, alleging infringement of the principles of equal treatment and non-discrimination

86 The applicant observes that there are no essential differences between his situation and that of Messrs B., H. and L.:

– all are successful candidates in competitions published at grade B 5/B 4 (the applicant and Messrs H. and L. in competition EPSO/B/23/04 and Mr B. in competition EPSO/B/21/04);

– all were wrongly classified in the new grade AST 4 (the applicant and Mr L.) or in the intermediate grade B*4, which became AST 4 (Messrs B. and H.), and assigned to the Institute for Transuranium Elements;

– their respective appointments were annulled and replaced by decision of the Director-General of the JRC dated 4 October 2006, which provides for each of them to be classified in function group AST 3, step 2.

87 In these circumstances, Messrs B., H., L. and the applicant were, according to the applicant, in a comparable situation. In the applicant’s opinion, he suffered discrimination in comparison with the other three officials, in that the decision to reclassify him in grade AST 3 was upheld, whereas the decisions to reclassify Messrs B., H. and L. in the same grade were withdrawn and replaced by three decisions classifying them in grade AST 4. According to the applicant, the difference in treatment was particularly blatant as between himself and Mr L., since in the light of the Commission’s arguments relating to the second plea the appointing authority considered, in response to Mr L.’s complaint, that a period of 3 months and 23 days between notification of the initial classification and that of the contested decision to withdraw it exceeded the reasonable length.

88 In that regard, as the Commission rightly observed, even supposing that one of the officials named by the applicant was in essentially the same situation as himself and that the appointing authority, by not withdrawing the initial classification measure regarding the applicant, failed to comply with the conditions for the retroactive withdrawal of an unlawful administrative measure as set out in case-law, that fact does not of itself justify identical treatment of the applicant, since no person may plead in his own cause an unlawful act committed in favour of another (see Case T‑82/92 Cortes Jimenez and Others v Commission [1994] ECR‑SC I‑A‑69 and II‑237, paragraph 43; Case T‑22/99 Rose v Commission [2000] ECR‑SC I‑A‑27 and II‑115, paragraph 39; Case T‑290/03 Pantoulis v Commission [2005] ECR I‑A‑241 and II‑1123, paragraph 56; and Case F‑101/05 Grünheid v Commission [2006] ECR‑SC I‑A‑1‑55 and II‑A‑1‑199, paragraph 140).

89 The second plea must therefore be dismissed.

B – The action for compensation

90 The applicant applies for compensation for non-material damage that he claims to have suffered owing to his reclassification in grade AST 3, after having initially been classified in grade AST 4, as a result of an error on the part of the administration. Furthermore, he states that this classification in a lower grade was maintained whereas the decisions to reclassify the three other colleagues who were in a similar situation were withdrawn.

91 The applicant assesses the compensation for his non-material damage at one symbolic euro.

92 In that regard, as pointed out in paragraph 84 of this judgment, the Commission committed a wrongful act in the performance of public duties in not having afforded the applicant a hearing before adopting the contested decision, the arguments for annulment adduced by the applicant having nevertheless been dismissed.

93 The applicant indisputably suffered non-material damage as a result of feeling that he had been presented with a fait accompli, to adopt the phrase he used in his complaint of 7 November 2006. That phrase precisely expresses the consequences of an infringement of the right of any person to be heard before an individual measure is taken that affects him adversely.

94 In the light of the circumstances of the case, the Tribunal, assessing the damage suffered ex aequo et bono, considers that an award of EUR 1 500 constitutes adequate compensation to the applicant.

95 Moreover, the request for compensation of one symbolic euro must be rejected, in that it relates to claims of illegality not upheld in the present judgment.

Costs

96 Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, of those rules relating to costs apply only to cases brought before the Tribunal from the date on which those rules enter into force, that is to say 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

97 Pursuant to paragraph 2 and the first subparagraph of paragraph 3 of Article 87 of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Where there are several unsuccessful parties, the Tribunal is to decide how the costs are to be shared. Where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Tribunal may order that the costs be shared or that each party bear its own costs. Moreover, under Article 88 of those Rules of Procedure, in proceedings between the Communities and their servants the institutions are to bear their own costs.

98 As the applicant has been partially successful, the Tribunal considers that the Commission should be ordered to bear its own costs and one third of the applicant’s costs.

On those grounds,

THE TRIBUNAL (Second Chamber)

hereby:

1. Orders the Commission of the European Communities to pay to Mr Bui Van the sum of EUR 1 500 by way of damages and interest;

2. Dismisses the remainder of the action;

3. Orders Mr Bui Van to bear two thirds of his own costs;

4. Orders the Commission of the European Communities to bear its own costs and one third of the costs incurred by Mr Bui Van.

Van Raepenbusch Boruta Kanninen

Delivered in open court in Luxembourg on 11 September 2008.





W. Hakenberg S. Van Raepenbusch

Registrar President