Council of the European Union v Lieve de Nil and Christiane Impens.
Date: 1998-05-14
16 It must be pointed out that the Court has held that, by virtue of Article 176 of the Treaty, it is for the competent institution to take, as regards the person concerned, having due regard to the Community rules applicable, such decision as will provide due compensation for the damage which he has suffered as a result of the decision which has been annulled (see Case 76/79 Könecke v Commission [1980] ECR 665, paragraph 15).
18 As regards, first, the date of reclassification, it must be noted that, in accordance with Article 45(2) of the Staff Regulations, an official may be promoted from one category to another only on the basis of a competition. Since success in a competition is thus a conditio sine qua non of appointment in a higher category (see Case 28/72 Tontodonati v Commission [1973] ECR 779, paragraph 8), that condition must be satisfied on the date on which the appointment takes effect. Article 45(2) of the Staff Regulations therefore precludes an appointment taking effect from a date prior to success in a competition.
20 As regards the Council's argument that the organisation of a second competition and the reclassification of the successful candidates in Category B 5 with effect from 1 January 1994 satisfy the requirements of Article 176 of the Treaty, it follows from the Court's case-law (Parliament v Meskens, cited above, paragraph 24) that Article 176 of the Treaty requires not only that the administration take the necessary measures to comply with the judgment of the Court but that it make good further damage which may be caused by the unlawful measure which has been annulled, subject to the conditions laid down in the second paragraph of Article 215 of the EC Treaty. Thus Article 176 of the Treaty does not make compensation for the damage dependent on the existence of a new fault distinct from the original unlawful measure which has been annulled, but provides for compensation for the damage which results from that measure and which continues after its annulment and compliance by the administration with the judgment whereby it was annulled.
23 It is settled case-law (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 42) that for the liability of the Community to be incurred in the case of a claim for damages brought by an official a number of conditions must be satisfied as regards the illegality of the conduct of the institution of which he complains, the actual harm suffered and the existence of a causal link between that conduct and the damage alleged to have been suffered.
32 As regards the plea in law based on a breach of the principle of proportionality, according to the case-law of the Court (Commission v Brazzelli Lualdi and Others, cited above, paragraph 81), it is for the Court of First Instance alone to assess, within the confines of the claim, the method and extent of compensation for the damage. However, in order for the Court to be able to review the judgments of the Court of First Instance, those judgments must be sufficiently reasoned.
33 In this case the reasoning of the Court of First Instance at paragraph 51 of the judgment under appeal, according to which the damage suffered by each of the applicants amounted ex aequo et bono to BFR 500 000, does not enable the Court to acquaint itself with the criteria taken into account for the purposes of determining that amount. In the absence of such information, the Court is not, however, in a position to decide whether the judgment under appeal is in breach of the principle of proportionality on that point.