JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

6 October 2004

Case T-294/02

Miguel Vicente-Nuñez

v

Commission of the European Communities

(Compliance with a judgment of the Court of First Instance – Decision on promotion – Seniority in grade – Date of taking effect)

Full text in French II - 0000

Application:         for, first, annulment of the Commission’s decision promoting the applicant to Grade A 5, step 3, under the 1998 procedure, adopted in order to comply with the judgment delivered by the Court of First Instance on 9 March 2000 in Case T-10/99, in so far as it limits its effect to 1 April 2000, and, second, a claim for damages.

Held:         The Commission’s decision of 11 June 2002 is annulled in so far as it does not have the effect of replacing Mr Vicente-Nuñez in a situation comparable, from the point of view of his seniority in grade, to the situation in which he would have been had he been promoted to Grade A 5 on 1 April 1998. The remainder of the application is dismissed. The Commission is ordered to pay the costs.

Summary

1.     Officials – Actions – Annulling judgment – Effects – Obligation to adopt measures to comply with a judgment – Respect for Community law – Compensation for damage to applicant connected with annulled measure – Particular difficulties – Payment of fair compensation for the disadvantage suffered by the applicant

(Art. 233 EC, first para.)

2.     Officials – Promotion – Promotion entailing a change of career – Promotion only intended to fill a post declared vacant – Any retrospective effect precluded – Retrospective effect intended to ensure compliance with annulling judgment – No effect – Need to offset, by appropriate means, the effects of a delayed promotion

(Art. 233 EC, first para.; Staff Regulations, Arts 4(1) and (2) and 45)

3.     Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Obligation to furnish evidence necessary to assess damage and determine amount of compensation

4.     Officials – Non-contractual liability of the institutions – Conditions – Damage – Material damage allegedly caused by delayed promotion hampering the subsequent career of the person concerned – Damage not certain in the absence of any right to promotion

(Staff Regulations, Art. 45)

5.     Officials – Decision adversely affecting an official – Obligation to state reasons – Scope

(Staff Regulations, Art. 25)

1.     In order to comply with the obligation laid down by the first paragraph of Article 233 EC, it is for the institution concerned to adopt the measures required to give effect to a judgment delivered in an action for annulment, exercising, subject to review by the Community Court, the discretion which it has for this purpose, complying with both the operative part and grounds of the judgment it is required to give effect to and the provisions of Community law. Where compliance with a judgment annulling a measure presents particular difficulties, the institution concerned may satisfy the obligation arising from Article 233 EC by taking such decisions as will provide due compensation for the damage which the persons concerned have suffered as a result of the decision which has been annulled.

(see paras 46, 79)

See: T-177/97 Simon v Commission [2000] ECR-SC I-A-75 and II-319, para. 23, and the case-law cited therein; T-298/97, T-312/97, T-313/97, T-315/97, T‑600/97 to T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98 Alzetta and Others v Commission [2000] ECR II-2319, para. 42

2.     A promotion entailing a change of career may only be made for the purpose of filling a vacant post which has been advertised as vacant. Accordingly, even where an annulling judgment is being complied with, such promotion may not be retrospective regardless of the implications of the principles of equal treatment and the right to career advancement.

However, it is for the administration, in order fully to comply with that judgment, to take steps to ensure that the delay in promotion to which the person concerned was subject does not cause him damage in his subsequent career, by virtue of the fact that seniority in grade is a factor to be taken into consideration when decisions on promotion are adopted.

(see paras 54, 63, 86-91)

See: 58/75 Sergy v Commission [1976] ECR 1139, para. 17

3.     Non-contractual liability on the part of the Community is subject to a number of conditions relating to the illegality of the conduct alleged against the Community institutions, actual damage and the existence of a causal link between the conduct of the institution and the damage complained of. Accordingly, an application seeking compensation for damage caused by a Community institution must contain information making it possible to identify, in particular, the nature and extent of the damage. Moreover, where the Court assesses damage ex aequo et bono, it is under an obligation to state reasons comprising, in particular, the criteria taken into account for the purposes of determining that amount. It follows that the applicant must indicate, in support of his claims, the relevant criteria to allow the Court to make that assessment.

(see paras 66, 103-104)

See: C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, para. 42; C-259/96 P Council v de Nil and Impens [1998] ECR I-2915, paras 32 and 33; C-327/97 P Apostolidis and Others v Commission [1999] ECR I-6709, para. 37; T-205/96 Bieber v Parliament [1998] ECR-SC I-A-231 and II-723, para. 48

4.     As the Staff Regulations do not confer any right to promotion, even on officials who fulfil all the conditions for promotion, and as the possibility of advancement is very uncertain and hypothetical, the fact that an official could not be promoted retrospectively under the Staff Regulations, despite a judgment annulling the refusal of promotion to which he had been subject, does not point to material damage to the person concerned in terms of the subsequent development of his career, nor a fortiori does it allow that damage to be assessed precisely.

(see para. 68)

See: 126/75, 34/76 and 92/76 Giry v Commission [1977] ECR 1937, paras 27 and 28; T-22/99 Rose v Commission [2000] ECR-SC I-A-27 and II-115, para. 37

5.     The purpose of the obligation to state grounds laid down by Article 25 of the Staff Regulations is both to give the person concerned a sufficient indication to determine whether the decision taken by the administration is well founded and whether it is appropriate to bring an action before the Court of First Instance and to enable the latter to carry out its review. The extent of that obligation must be determined on the basis of the specific circumstances of each case, in particular the content of the act, the nature of the grounds put forward and the interest which the addressee may have in receiving explanations.

(see para. 94)

See: T-10/99 Vicente-Nuñez v Commission [2000] ECR-SC I-A-47 and II-203, para. 41