Case T-526/08 P: Appeal brought on 3 December 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 25 September 2008 in Case F-44/05 Strack v Commission
Date: 2008-12-03
Institutions: Court of First Instance
Subjects: EC conformity marking, admissibility, appeal, interest in bringing an action, recruitment, supplementary pension

21.2.2009

EN

Official Journal of the European Union

C 44/53

— Breach of the general principles of the protection of legiti-
legal certainty and proportionality in

mate expectations,
ordering the alleged aid to be repaid by the recipient.

Appeal brought on 3 December 2008 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 25 September 2008 in
Case F-44/05 Strack v Commission

(Case T-526/08 P)

(2009/C 44/93)

Language of the case: German

Parties

Appellant: Commission of the European Communities (repre-
sented by: H. Krämer and B. Eggers)

Other party to the proceedings: Guido Strack (Cologne, Germany)

Form of order sought

— set aside the judgment of

the Civil Service Tribunal of

25 September 2008 in Case F-44/05 Strack v Commission;

— order the original applicant to pay the costs of the proceed-
ings before the Civil Service Tribunal as well as the costs of
the appeal.

Pleas in law and main arguments

The appeal is brought against the judgment of the Civil Service
Tribunal of 25 September 2008 in Case F-44/05 Strack v
Commission. That judgment annulled the decision of the Office
for Official Publications of the European Communities to reject
the candidature of the original applicant for the post of head of
the ‘Calls for tenders and contracts’ unit and ordered the Commis-
sion to pay him EUR 2 000 by way of damages
for
non-material harm.

In support of its appeal, the appellant puts forward two pleas in
law.

argues, was wrong in law and could give rise to uncertainty as
regards the implementation measures under Article 233 EC. The
rule which states that inadmissibility of an action for annulment
automatically entails the inadmissibility of a claim for damages
directly connected to that action is not applicable where there is
no danger that the claim for damages is being used as a means
by which to circumvent the necessary preliminary proceedings
or other conditions governing admissibility, with the result that
a claim for damages may be admissible even though the action
for annulment is inadmissible because of the absence of a defen-
sible interest.

2. Failure to provide a statement of

reasons in interpreting and

making a finding of ‘non-material harm’

Second, the Civil Service Tribunal erred in paragraph 219 of the
judgment under appeal when it found that the original applicant
had actually suffered non-material harm on the ground that he
had been denied the right to a proper review of his application.
That finding necessarily implies that the unlawfulness of a deci-
sion rejecting a candidature constitutes, per se, non-material
harm. Such an interpretation fails to recognise that non-contrac-
tual
liability on the part of the Community depends on the
presence of three cumulative conditions: first, the unlawfulness
of the conduct of which the institutions are accused; second, the
third, a causal
actual occurrence of
connection between the two.

the harm alleged; and,

Action brought on 5 December 2008 — Norilsk Nickel
Harjavalta Oy and Umicore NV v Commission

(Case T-532/08)

(2009/C 44/94)

Language of the case: English

Parties

Applicants: Norilsk Nickel Harjavalta Oy (Harjavalta, Finland) and
Umicore SA/NV (Brussels, Belgium) (represented by: K. Nord-
lander, lawyer)

Defendant: Commission of the European Communities

1. Infringement of Community law resulting from the confirmation
that there was a defensible interest in bringing the action for annul-
ment

Form of order sought

The Commission's first head of challenge is that the application
for annulment of the rejection decision was held to be admis-
sible, notwithstanding the fact that the original applicant did
not have a defensible interest in bringing the action challenging
the appointing decision inasmuch as a claim for damages was
introduced at the same time. That finding, the Commission

— Declare the present application admissible;

— annul the contested acts;

— order the Commission to pay the applicants' costs for these

proceedings.