JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 December 2003

Case T-324/02

Hans McAuley

v

Council of the European Union

‛Compliance with a judgment of the Court of First Instance — Appointment of a Language Adviser in the English and Irish Language Division of the Council — Termination of the procedure for filling the post under Article 29(1) (a) of the Staff Regulations — Misuse of powers — Action for damages’

Full text in French II-1657

Application for:

first, annulment of the decision contained in the letter of 30 January 2002 of the Director General of Directorate General A of the Council to terminate the procedure under Article 29(1)(a) of the Staff Regulations for filling the post of Language Adviser in the English and Irish Language Division and to proceed to the next stage, namely the organisation of an internal competition under Article 29(1)(b) of the Staff Regulations, and, second, for damages.

Held:

The decision contained in the letter of 30 January 2002 of the Director General of Directorate General A of the Council to terminate the procedure under Article 29(1) (a) of the Staff Regulations for filling the post of Language Adviser in the English and Irish Language Division and to proceed to the next stage, namely the organisation of an internal competition under Article 29(1) (b) of the Staff Regulations, is annulled. The applicant's application for compensation is dismissed. The Council is ordered to pay the costs.

Summary

Officials — Actions — Annulling judgment — Effects — Obligation to adopt measures to comply with a judgment — Scope — Consideration of both the grounds and the operative part of the judgment — Annulment of a decision of the appointing authority rejecting a candidature at the end of the phase of the recruitment procedure provided for in Article 29(1) (a) of the Staff Regulations — Obligation to reexamine the candidature — Immediate progression to an internal competition, the next phase of the recruitment procedure — Unlawful

Officials — Actions — Act adversely affecting an official — Definition — Preparatory act — Decision, deemed to be in compliance with an annulling judgment, not to follow the procedure laid down in Article 29(1) (a) of the Staff Regulations to fill a vacant post, but to follow the procedure under Article 29(1)(b) — Admissibility

Only acts or decisions producing binding legal consequences likely to affect the applicant' s interests by significantly changing his legal situation may be the subject of an action for annulment. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, only a measure definitively establishing the position of the institution at the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision, is generally challengeable. Moreover, as regards staff cases, acts preparatory to a decision do not adversely affect officials within the meaning of Article 90(2) of the Staff Regulations and therefore cannot be contested incidentally in an appeal against measures capable of being annulled. However, in so far as a decision to progress from the procedure in Article 29(1) (a) of the Staff Regulations to the procedure in Article 29(1) (b) in order to fill a vacant post is a measure to comply with a judgment of the Community judicature annulling a decision of the appointing authority to reject the applicant's candidature at the end of the phase of the recruitment procedure provided for in Article 29(1)(a) and appointing another person to the post in question, the applicant must be regarded as entitled to bring an action for annulment of that decision if the action is for a declaration that the decision was taken in disregard of the defendant institution's obligations under Article 233 EC. (see paras 28, 34) See: 60/81 IBM v Commission [1981] ECR 2639, para. 9; T-6/93 Pérez Jiménez v Commission [1994] ECRSC I-A-155 and II-497, para. 34; T-586/93 Kotzonis v ESC [1995] ECR II-665, paras 28 and 29

Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case it is for the person concerned to submit to the appointing authority, within the prescribed time-limit, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request. Where there is a direct link between the action for annulment and the claim for compensation, the latter may be declared admissible as incidental to the action for annulment, without necessarily having to be preceded by a request to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of the request. On the other hand, where the alleged damage does not arise out of the act whose annulment is sought but from a series of alleged wrongful acts and omissions on the part of the administration, it is mandatory that the pre-litigation procedure should commence with a request for the appointing authority to make good that damage. In addition, where there is a direct link between an action for annulment and an action for damages, if the action for damages is brought separately it is still admissible even though it might also have been brought as ancillary to the action for annulment, without having been preceded by a request to the appointing authority for compensation for the damage allegedly suffered and a complaint challenging the validity of the implied or express rejection of the request. (see paras 91-92) See: T-15/96 Liao v Council [1997| ECRSC I-A-329 and II-897. paras 57 and 58: T-78/96 and T-170/96 W v Commission (1998) ECRSC I-A-239 and II-745. para. 159: T-378/00 Morello v Commission [20021 ECRSC I-A-311 and II-1497. para. 102

Under Article 29(1) of the Staff Regulations, the appointing authority must be scrupulous in examining candidatures for promotion or transfer to fill a vacant post, but it is not bound absolutely to proceed by way of promotion or transfer, even where there are suitable candidatures from officials who satisfy all the conditions and requirements set out in the vacancy notice. It follows that if, after a judgment annulling a decision of the appointing authority to reject the applicant's candidature and to appoint another person to the post in question, the appointing authority was bound to reexamine the applicant's candidature in order to observe the order of priority set out in Article 29(1) of the Staff Regulations, it was nevertheless not bound to appoint the applicant. (see para. 99) See: C-174/99 P Parliament v Richard [2000] ECR I-6189. paras 38 to 40; Campolargo v Commission. cited earlier, paras 93 to 98