JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

25 September 2008

Case F-44/05

Guido Strack

v

Commission of the European Communities

(Civil service – Officials – Recruitment – Vacancy notice – Rejection of candidature – Action for annulment and for damages – Admissibility – Interest in bringing proceedings – Retirement – Preselection committee – Composition – Temporal application of new provisions – Independence – Impartiality – Notification of a decision)

Application: brought under Articles 236 EC and 152 EA, in which Mr Strack seeks, essentially, annulment of the decision of the Publications Office of the European Communities rejecting his candidature for the post of head of its ‘Calls for tender and contracts’ unit (A 5/A 4) and of the decision to appoint Mr A to the contested post, as well as an order for the Commission to pay damages for the non-material damage allegedly suffered.

Held: The application for annulment of the decision to appoint Mr A to the post of head of the ‘Calls for tender and contracts’ unit of the Publications Office of the European Communities is dismissed as inadmissible. The decision to reject the applicant’s candidature for the post of head of the ‘Calls for tender and contracts’ unit of the Publications Office is dismissed. The Commission is ordered to pay the applicant EUR 2 000 by way of damages. The remainder of the action is dismissed. The applicant is to bear half of his own costs. The Commission is to pay its own costs and half of the costs incurred by the applicant.

Summary

1.      Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 53, 78 and 90; Annex VIII, Art. 14)

2.      Officials – Rights and obligations – Obligation of independence and integrity

(Staff Regulations, Art. 11a)

3.      Officials – Vacancy – Consideration of candidates’ comparative merits

(Staff Regulations, Art. 29)

4.      Officials – Individual decision – Late notification – Effects

(Staff Regulations, Art. 25, second para.)

1.       An applicant must prove that he has a vested and present interest in seeing the contested measure annulled, and if the interest upon which he relies concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain. In the case of an official who has retired because of permanent invalidity deemed to be total before he brought his action for annulment of the appointment of another official to the post for which the applicant had applied, the possibility of any reinstatement in the service under Article 14 of Annex VIII to the Staff Regulations is merely a possible event the future occurrence of which is uncertain, creating a purely hypothetical interest which is therefore insufficient to prove that his legal situation would be affected if the contested decision were not annulled. It is therefore for the applicant to demonstrate the existence of a special circumstance proving a current, personal interest in obtaining the annulment of the contested decision.

However, the application for annulment of the decision to reject the applicant’s candidature for the post in question is admissible, since he still has an interest in obtaining a declaration that the decision to reject his candidature was unlawful, in order to obtain compensation for the damage that decision may have caused him.

(see paras 70, 72, 74, 76, 79)

See:

204/85 Stroghili v Court of Auditors [1987] ECR 389, para. 11

T-82/91 Latham v Commission [1994] ECR-SC I‑A‑15 and II‑61, para. 25; T-97/94 N v Commission [1998] ECR-SC I‑A‑621 and II‑1879, paras 26 and 27; T-175/04 Gordon v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, paras 33 and 35

2.      Article 11a of the Staff Regulations pursues the objectives of independence, integrity and impartiality, which are of a fundamental nature. The obligation laid down in Article 11a(2) consists, for the official concerned, in informing the appointing authority as a precaution so that the latter can take the appropriate steps in the light of the context of the matter, and not in automatically giving up the handling or resolution of that matter or in excluding, for the purposes of such handling or resolution, those aspects which could involve his personal interest. Consequently, Article 11a of the Staff Regulations has a wide scope, covering any circumstance which, in the light of the position held by him and of the specific circumstances of the matter, must reasonably be understood by the official as being likely to be seen by third parties as a possible source of impairment of his independence.

(see para. 132)

See:

T-21/01 Zavvos v Commission [2002] ECR-SC I‑A‑101 and II‑483, para. 39; T-89/01 Willeme v Commission [2002] ECR-SC I‑A‑153 and II‑803, para. 47; T-157/04 De Bry v Commission [2005] ECR‑SC I‑A‑199 and II‑901, para. 33

3.      In exercising the discretion available to it regarding an appointment or promotion, the administration must examine carefully and impartially all the relevant parts of each application and meticulously observe the requirements laid down in the vacancy notice, thus being required to reject any candidate who does not meet those requirements. The vacancy notice constitutes a legal framework which the appointing authority or the authority authorised to conclude contracts of engagement imposes on itself and to which it must adhere strictly.

As regards the determination of any error in the choice of an official, such an error must be manifest and must exceed the wide discretion enjoyed, within the framework laid down in the vacancy notice, by the appointing authority in comparing the merits of candidates and in assessing the interests of the service. The Tribunal’s review must be confined to the question whether, having regard to the considerations which influenced that authority in making its assessment, the latter remained within reasonable bounds and did not use its power in a manifestly incorrect way or for purposes other than those for which that power was conferred on it.

The Tribunal cannot therefore substitute its assessment of the merits and qualifications of the candidates for that of the appointing authority where there is nothing in the file to suggest that, in assessing those merits and qualifications, the authority in question committed a manifest error.

(see paras 155-156)

See:

188/73 Grassi v Council [1974] ECR 1099, paras 26, 38 and 41; 111/83 Picciolo v Parliament [1984] ECR 2323, para. 16; 324/85 Bouteiller v Commission [1987] ECR 529, para. 6

T-20/89 Moritz v Commission [1990] ECR II‑769, para. 29; T-73/01 Pappas v Committee of the Regions [2003] ECR-SC I‑A‑207 and II‑1011, para. 54; T-116/03 Montalto v Council [2004] ECR-SC I‑A‑339 and II‑1541, para. 65; T-30/04 Sena v EASA [2005] ECR‑SC I‑A‑113 and II‑519, paras 80 and 81

4.      The first sentence of the second paragraph of Article 25 of the Staff Regulations provides that any decision relating to a specific individual must at once be communicated in writing to the official concerned. The finding that that notification was belated cannot, however, in itself, constitute an infringement of that provision, such as to entail annulment of the contested decision.

(see paras 195, 198)

See:

T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECR-SC I‑A‑51 and II‑155, paras 28 and 29; T‑131/97 Gómez de Enterría y Sanchez v Parliament [1998] ECR‑SC I‑A‑613 and II‑1855, para. 69; T-118/04 and T-131/04 Caló v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, para. 79