JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

12 September 2007

Case T-250/04

Philippe Combescot

v

Commission of the European Communities

(Civil service – Officials – Filling the post of Head of Delegation, Columbia – Rejection of candidature – Action for annulment – No legal interest in bringing proceedings – Action for damages)

Application: first, for a declaration that the decision to exclude the applicant from the competition to fill the post of Head of Delegation to Columbia is unlawful, annulment of the procedure for that competition and annulment of the decision to fill the post concerned and, secondly, payment of damages to compensate the applicant for the loss allegedly suffered.

Held: The Commission is ordered to pay to the applicant, Mr Philippe Combescot, damages of EUR 3 000. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay half the applicant’s costs. The applicant is ordered to bear half his own costs.

Summary

1.      Procedure – Representation of parties

2.      Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Claim for compensation linked to an application for annulment

(Staff Regulations, Arts 90 and 91)

4.      Officials – Vacancy – To be filled by internal competition

5.      Officials – Vacancy – Consideration of comparative merits of candidates

(Staff Regulations, Art. 29(1))

6.      Officials – Non-contractual liability of the institutions – Conditions

1.      The procedural rules applicable before the Court do not prevent a party from establishing a single authority covering a number of cases before the Court in which it intends to take part and, consequently, do not prevent the same authority from being produced by the representative in question in a number of different actions.

(see para. 19)

2.      In order for an official who has entered retirement to be able to bring an action for annulment of a decision of the appointing authority, he must retain a personal interest in the annulment of the contested decision.

That is not the case where his action is for the annulment of a decision excluding him from a competition to fill a post to which he may no longer lay claim because he has been retired and awarded a permanent and total invalidity pension after bringing the action.

However, the official concerned still has an interest in seeking a ruling on the lawfulness of the decision to exclude him in connection with a claim for compensation for the professional, material and non-material damage which he considers that he has suffered owing to the conduct of the institution concerned.

(see paras 28-29, 33)

See: T-20/89 Moritz v Commission [1990] ECR II‑769, para. 18; T‑112/94 Moat v Commission [1995] ECR-SC I‑A‑37 and II‑135, para. 26; T‑6/96 Contargyris v Council [1997] ECR-SC I‑A‑119 and II‑357, para. 32

3.      The rule developed in the case-law that the inadmissibility of a claim for annulment entails that of the claim for compensation, where there is a close link between the two claims, is expressly designed to prohibit an official who has failed to contest within the prescribed period a decision of the appointing authority which has adversely affected him circumventing the consequences of his being out of time by bringing an action for damages based on the purported unlawfulness of that decision.

Consequently, that rule does not apply in the case of an official who has contested within the prescribed period, by an action for annulment, a decision to exclude him from an internal competition, where it is only after the action has been brought that the claim for annulment has become inadmissible, for a reason beyond the applicant’s control, namely his being retired. The fact of declaring the claim for compensation admissible does not have the effect of allowing the applicant to circumvent the consequences of his being out of time because he failed to follow the correct procedure for seeking annulment of the act which he claims to be unlawful.

(see paras 38-40)

See: 59/65 Schreckenberg v Commission [1966] ECR 543, 551; 4/67 Collignon v Commission [1967] ECR 365, 373; 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, para. 11; 401/85 Schina v Commission [1987] ECR 3911, paras 10 and 13; 346/87 Bossi v Commission [1989] ECR 303, paras 31 and 34; T‑309/03 Camós Grau v Commission [2006] ECR II‑1173, para. 76

4.      Staff notes which do not constitute internal instructions which an institution would be required to follow, but are merely preparatory, advisory or guidance documents with no mandatory effect, cannot be invoked by the institution to justify the application, in respect of an official, of a requirement referred to in those notes in order to participate in an internal competition.

A decision excluding an official from an internal competition to fill a middle management post, which is based on his failure to fulfil a requirement contained in a preparatory internal document but not provided for in the regulatory framework applicable or in the vacancy notice is therefore unlawful.

(see paras 59, 64, 66)

5.      It is for the appointing authority to assess whether a candidate fulfils the conditions required by a vacancy notice, and that assessment may be questioned only in the event of manifest error. Where a vacancy notice requires that candidates possess additional experience in fields relevant to the post to be filled, it is for the appointing authority to determine the relevance of additional experience to the post in question.

(see para. 71)

See: 198/87 Kerzmann v Court of Auditors [1989] ECR 2083

6.      The Community incurs non-contractual liability only if the allegedly wrongful act committed by the institutions is unlawful, the applicant has suffered actual harm and there is a causal link between the act and the damage alleged to have been suffered.

In order for it to be accepted that there is such a link, evidence must be adduced that there is a direct and certain causal nexus between the fault committed by the institution concerned and the injury pleaded.

In the particular context of a competition, the requisite degree of certainty of the causal link is attained where the wrongful act committed by a Community institution has definitely deprived a person, not necessarily of the award of the post in question, to which the person concerned could never prove he had a right, but of a genuine chance of being appointed to that post, resulting in material damage for the person concerned in the form of loss of income. Where it seems eminently probable, in the circumstances of the case, that, if it had abided by the law, the Community institution concerned would have awarded the post to the person in question, the theoretical uncertainty as regards the outcome of a properly conducted recruitment procedure cannot preclude reparation for the material damage he sustained in being excluded from the competition for the post which he would have had every chance of securing.

(see paras 92, 95-96)

See: T‑82/91 Latham v Commission [1994] ECR-SC I‑A‑15 and II‑61, para. 72; T-172/00 Pierard v Commission [2001] ECR‑SC I‑A‑91 and II‑429, para. 34; T‑45/01 Sanders and Others v Commission [2004] ECR II‑3315, paras 149 and 150; T‑144/02 Eagle and Others v Commission [2004] ECR II‑3381, paras 148 and 149; T‑116/03 Montalto v Council [2004] ECR-SC I‑A‑339 and II‑1541, para. 125