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 (represented by: H. Krämer and B. Eggers)

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

Form of order sought

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 Commission 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.

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

The Commission's first head of challenge is that the application for annulment of the rejection decision was held to be admissible, 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 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 defensible 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 decision rejecting a candidature constitutes, per se, non-material harm. Such an interpretation fails to recognise that non-contractual 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 actual occurrence of the harm alleged; and, third, a causal connection between the two.