Case C-443/07 P: Appeal brought on 28 September 2007 by Clara Centeno Mediavilla, Delphine Fumey, Eva Gerhards, Iona M.S. Hamilton, Raymond Hill, Jean Huby, Patrick Klein, Domenico Lombardi, Thomas Miller, Miltiadis Moraitis, Ansa Norman Palmer, Nicola Robinson, François-Xavier Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von Nordheim Nielsen, and Michaël Zouridakis against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 11 July 2007 in Case T-58/05 Centeno Mediavilla and Others v Commission of the European Communities
Date: 2007-09-28
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), appointment of staff, personnel administration, professional career, recruitment, regulations for civil servants

C 22/20

EN

Official Journal of the European Union

26.1.2008

By its first ground of appeal, the Commission claims that, by
finding, first, that the Commission ‘omitted’ to formulate the
complaint of buttressing of
the positions of Schneider and
Legrand in its statement of objections of 3 August 2001 and,
second, that such formulation presented ‘no particular technical
difficulty’, the Court of First Instance disregarded the authority
of a judgment delivered but still possibly subject to appeal,
made materially incorrect
findings, distorted the evidence
submitted to its evaluation and failed in its duty to state reasons
for its judgments.

Appeal brought on 28 September 2007 by Clara Centeno
Mediavilla, Delphine Fumey, Eva Gerhards,
Iona M.S.
Hamilton, Raymond Hill,
Jean Huby, Patrick Klein,
Domenico Lombardi, Thomas Miller, Miltiadis Moraitis,
Ansa Norman Palmer, Nicola Robinson, François-Xavier
Rouxel, Marta Silva Mendes, Peter van den Hul, Fritz Von
Nordheim Nielsen, and Michaël Zouridakis against the judg-
ment of the Court of First Instance (Fourth Chamber,
Extended Composition) delivered on 11 July 2007 in Case
T-58/05 Centeno Mediavilla and Others v Commission of
the European Communities

By its second ground of appeal, the Commission maintains that
the Court of First Instance erroneously described the facts, made
an error of law and failed in its duty to state reasons in holding
that the procedural error found in the judgment of 22 October
2002 in Case T-310/01 Schneider Electric v Commission was a
‘sufficiently serious’ breach of a rule of law the object of which
was to confer rights on individuals.

By its third ground of appeal, the Commission alleges that the
Court of First
Instance made materially mistaken findings,
distorted the evidence, erroneously described the facts in ques-
tion and made an error of law in holding that there was a ‘suffi-
ciently direct causal link’ between the wrongful act or omission
and the second head of damage pleaded, namely the anticipated
conclusion of Schneider's negotiations with Wendel-KKR on the
transfer price of Legrand SA.

By its fourth ground of appeal, the Commission complains that
the Court of First Instance was in breach of its duty to state
reasons by reason of a contradiction in the grounds vitiating its
reasoning concerning the causal link between the wrongful act
or omission and the various heads of damage pleaded.

By its fifth ground of appeal, the Commission maintains that
the Court of First Instance made materially incorrect findings of
fact, distorted the evidence and made an error of law in not
concluding that Schneider contributed to the entirety of the
second head of damage pleaded. That undertaking failed in
several respects in its duty to take reasonable care to avoid the
damage or mitigate its extent, particularly by failing to bring an
interlocutory application in regard to the obligation to transfer
Legrand to which it claims to have been made subject and by
having chosen to transfer that undertaking at a time when it
was not, anyway, subject to any obligation to do so.

By its sixth ground of appeal, the Commission complains that
the Court of First Instance made rulings beyond those sought,
misapplied the rules governing the burden of proof and
infringed the rights of the defence by identifying a head of
damage which was not pleaded by the applicant undertaking.

the Commission
By its seventh and last ground of appeal,
alleges that the Court of First Instance made an error of law in
awarding Schneider compensatory interest from the accrual of
the second head of damage on 10 December 2002.

(Case C-443/07 P)

(2008/C 22/39)

Language of the case: French

Parties

Appellants: Isabel Clara Centeno Mediavilla, Delphine Fumey, Eva
Gerhards, Iona M.S. Hamilton, Raymond Hill, Jean Huby, Patrick
Klein, Domenico Lombardi, Thomas Millar, Miltiadis Moraitis,
Ansa Norman Palmer, Nicola Robinson, François-Xavier Rouxel,
Marta Silva Mendes, Peter van den Hul, Fritz Von Nordheim
Nielsen,
by: G.
Vandersanden and L. Levi, avocats)

and Michaël Zouridakis

(represented

Other parties to the proceedings: Commission of the European
Communities, Council of the European Union

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities of 11 July 2007 in Case T-58/05;

— consequently, deliver judgment in accordance with the form

of order sought at first instance and, therefore,

— annul the grade classification granted to the appellants
in the decisions relating to their recruitment in so far as
that classification is based on Article 12(3) of Annex XIII
to the new Staff Regulations;

— restructure the appellants' career (including valuation of
their experience in the grade as thus corrected, their
rights to advancement to a higher step and their pension
rights), on the basis of the grade at which they would
have been appointed on the basis of the competition
notice in pursuance of which they were placed on the
list of suitable candidates, either to the grade mentioned
on that competition notice or
to the grade corre-
sponding to its equivalent according to the classification
in the new Staff Regulations (and the appropriate step in
accordance with the rules applicable before 1 May
2004), as from the date of the decision to appoint them;

26.1.2008

EN

Official Journal of the European Union

C 22/21

— award the appellants interest for late payment on the
basis of the rate set by the European Central Bank on all
sums corresponding to the difference between the salary
corresponding to their classification in the decision to
appoint them and the classification to which they ought
to have been entitled, until the date on which the deci-
sion to classify them in their proper grade is taken;

— order the defendant to pay all the costs incurred at first

instance and on appeal.

Grounds of appeal and main arguments

After stating, at the outset, that the Court of First Instance
treated all the appellants in the same way in the contested judg-
ment without taking into account the particular situation of
each of them, and that it based its decision on the presumption,
which they dispute, that the legality of their grade classification
can be assessed only as from the date of their appointment, the
appellants raise two grounds in support of their appeal.

First

By their first ground of appeal the appellants allege that the
Court of
Instance was wrong in concluding that
Article 12(3) of Annex XIII to the Staff Regulations is lawful. In
that regard, they claim, first, that the Court of First Instance
infringed Article 10 of the old Staff Regulations in so far as it
assimilated the substitution of grades which took place in the
present case to a ‘specific’ adaptation of the transitional provi-
sions leading towards the new career structure,
justifying the
fact that the Staff Regulations Committee was not re-consulted,
even though the consequences, in particular financial, of that
substitution of grades for the situation of the persons concerned
are considerable and amply justified consultation of
that
committee.

In support of that same ground of appeal, the appellants claim,
second, an infringement of
the principle of vested rights.
Contrary to what was held by the Court of First Instance, the
relevant question in the present case was not whether there was
a vested right in being appointed, but a vested right in being
classed in a certain grade in the event of appointment. Although
it is not disputed that a competition notice and inclusion in a
list of suitable candidates do not grant entitlement to recruit-
ment, that notice and that inclusion do, however, create a right
for the participants in the competition and, a fortiori, for those
on the list of laureates, to be treated in accordance with the
competition notice. That right constitutes the consideration for
the obligation on the part of the appointing authority to respect
the framework which it laid down for itself in the competition
notice and which corresponds to the requirements of the posts
to be filled and the interests of the service.

their right to rely, in the event of actual recruitment, on the clas-
sification criteria laid down in the competition notice and
applicable, therefore, to the recruitment of all the laureates of
that competition. In addition, the Court in no way carried out
an examination of the possible justification for the difference in
treatment made between the two categories of officials at issue.

The appellants claim, fourth, that the Court of First Instance
infringed the principle of legitimate expectations and misinter-
preted the evidence. The documents submitted to that court
contain a large amount of information capable of substantiating
the claim that the appellants actually received specific assurances
that they would be recruited at the grade stipulated in the
competition notice.

Finally, the appellants claim that the Court of First Instance
misconstrued the scope of Articles 5, 7 and 31 of the Staff
Regulations and, in that regard, also infringed the duty of the
Community judicature to give reasons.

By their second ground of appeal, the appellants contest the
judgment under appeal further in that it dismissed the actions
brought against the decisions concerning their appointment on
the ground that, although the defendant infringed its duty to
in
provide pre-contract information, that inadequacy cannot,
in
itself, render the contested decisions unlawful. They claim,
that regard, the concurrent infringement of the principles of
sound administration,
legitimate expectations,
transparency,
good faith, equal treatment and equivalence between job and
grade and the duty of care.

Reference for a preliminary ruling from the Conseil d'État
(Belgium)
lodged on 24 October 2007 — Association
Générale de l'Industrie du Médicament ASBL, Bayer SA,
Servier Benelux SA, Janssen Cilag SA, Pfizer SA v Belgian
State — Intervener: Sanofi-Aventis Belgium SA

(Case C-471/07)

(2008/C 22/40)

Language of the case: French

Referring court

Conseil d'État

The appellants claim, third, that the Court of First Instance
infringed the principle of equal treatment in making a distinc-
the competition who were
tion between the laureates of
appointed before 1 May 2004 and those who were appointed
after that date since, in any case, the hypothetical nature of the
appointment of the laureates of a competition does not infringe

Parties to the main proceedings

Applicants: Association Générale de l'Industrie du Médicament
ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA

Defendant: Belgian State