JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 July 2013

Case F‑9/12

CC

v

European Parliament

(Civil service — Actions for damages — Non-contractual liability — Open competition — Errors in the management of the list of suitable candidates — Measures to implement a judgment — Obligation to keep documents — Loss of opportunity)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby CC seeks, in essence, compensation for the harm caused to her by the various errors committed by the European Parliament in the management of the list of suitable candidates drawn up following competition EUR/A/151/98 and on which she had been placed following delivery of the judgment of the Court of First Instance of the European Communities of 5 March 2003 in Case T‑24/01 [CC] v Parliament.

Held:      The European Parliament is ordered to pay CC the sum of EUR 15 000. The action is dismissed for the remainder. The European Parliament is to bear its own costs and is ordered to pay the costs incurred by CC.

Summary

1.      Actions brought by officials — Actions for damages — Duty to act within a reasonable time — Criteria for assessment

(Staff Regulations, Arts 90 and 91)

2.      Officials — Non-contractual liability of the institutions — Conditions — Injury — Unlawful destruction by an institution of documents relating to the steps taken with respect to a successful candidate included on the list of successful candidates in a competition — Destruction not depriving the successful candidate of any prospect of receiving compensation — No injury suffered

(Art. 340 TFEU)

3.      Actions brought by officials — Time-limits — Request for compensation addressed to an institution — Duty to act within a reasonable time — Criteria for assessment

(Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90(1))

4.      Officials — Recruitment — Competitions — Obligation of the institution holding the competition to inform the other institutions of the results — None — Exception — Existence of assurances to that effect of such a kind as to give rise to a legitimate expectation — Breach — Maladministration

5.      Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Injury — Causal link — Concept — Loss of an opportunity arising from the unlawful rejection of an application — Criteria for evaluation of the harm

(Art. 340 TFEU)

6.      Officials — Non-contractual liability of the institutions — Conditions — Material harm caused to a successful candidate in a competition who did not have the same chances of recruitment as those offered to the other successful candidates — Harm capable of being made good

(Art. 340 TFEU)

7.      Officials — Non-contractual liability of the institutions — Non-material harm — Causal link — Burden of proof — None

(Art. 340 TFEU)

1.      The question whether an applicant submitted a claim for compensation within a reasonable time must be assessed, not globally, but in the light of each of the errors alleged and of the date in which the harm caused by each of those errors occurred.

(see para. 54)

2.      The destruction by an EU institution of the documents relating to the steps taken by that institution to inform the other institutions and bodies of the Union that an applicant has been entered on the list of suitable candidates in a competition, which was considered unlawful owing to the fact that the period during which those documents were kept was less than the period in which a claim for compensation may be submitted, does not deprive the applicant of any prospect of receiving compensation. If that institution was required to inform the other institutions and bodies of the Union that the applicant was included on that list, it would then be for the institution to prove that it fulfilled that obligation. Consequently, the fact that the institution voluntarily placed itself in a position in which it is unable to establish the truth of its claims can be used only as against that institution. Thus, the destruction is incapable of causing harm to the applicant as such.

(see para. 71)

3.      Where claims are strictly for damages, in that they do not seek the annulment of a specific act but solely compensation for harm alleged to have been caused by a series or errors or omissions which, in the absence of any legal effect, cannot be characterised as acts adversely affecting the applicant, the administrative procedure must, if it is not to be declared inadmissible, begin with a request from the person concerned inviting the appointing authority to make good the alleged harm and, where appropriate, proceed by way of a complaint against the decision rejecting the request. As Article 90(1) of the Staff Regulations is silent in that regard, the period for submitting such a request for compensation must be reasonable, which must be assessed in the light of the particular circumstances of the case and, in particular, what is at stake in the dispute for the person concerned, the complexity of the case and the conduct of the parties involved. However, for the purpose of undertaking that assessment, a point of comparison may usefully be drawn from the limitation period of five years laid down in Article 46 of the Statute of the Court of Justice in relation to an action for non-contractual liability of the European Union. Time begins to run when the harm sustained by the victim actually occurred.

(see paras 80-81, 95)

See:

17 July 2008, C‑51/05 P Commission v Cantina sociale di Dolianova and Others, para. 63

2 May 2007, F‑23/05 Giraudy v Commission, para. 69; 11 May 2010, F‑30/08 Nanopoulos v Commission, paras 116 and 117; 8 February 2011, Skareby v Commission, para. 52

4.      It cannot be inferred from the fact that the EU institutions and bodies other than the one(s) that held a competition may recruit the successful candidates on the list of suitable candidates drawn up following that competition that the institution or body responsible for holding a competition is under any obligation to inform all the institutions and bodies of the Union of the results of the competition.

The position is otherwise where the institution that held the competition gave a successful candidate to understand, on a number of occasions, that it had informed the other institutions and bodies of the Union that he had been entered on the list of suitable candidates in the competition and that it had sent them his curriculum vitae. Where an institution provides a person with assurances in the form of specific, unconditional and consistent information, coming from authorised and reliable sources, that person is entitled to expect, under the principle of legitimate expectations, that the institution will comply with the assurances it has given. Should it not do so, the institution in question makes an error of such a kind as to render the Union liable.

In those circumstances, failure to inform the other institutions and bodies of the Union constitutes an error of such a kind as to render the Union liable. That conclusion is not called into question by the fact that the successful candidate himself took the trouble to inform certain institutions and certain bodies of the Union. That circumstance is capable only of having reduced the harm sustained by the successful candidate, but it does not render the conduct of the institution that held the competition free of error.

(see paras 99-100, 104-105)

5.      As regards the non-contractual liability of the Union, the harm must be duly established and certain. It follows, where the alleged harm relates to a loss of opportunity, that, first, the opportunity lost must have been actual and, second, that that loss must have been definitive.

There must be a direct and certain relationship of cause to effect between the error made by the institution and the harm relied on. However, that condition does not preclude the possibility that, where the alleged harm results from the disappearance of a favourable possibility, the person concerned may be compensated for the loss, not of a right to which that possibility gives rise, but of the chance that that possibility will arise.

It is only where those conditions are satisfied, namely, where the lost opportunity was actual and where that loss is definitive, that the person concerned is entitled to be compensated for loss of opportunity, that is to say, as regards the loss of the opportunity to be recruited by an institution of the Union, to obtain payment of the remuneration which he would have received if he had been appointed a probationary official, weighted to reflect the probability that that opportunity would arise in the absence of the illegality committed.

In that regard, the fact that the lost opportunity is small does not constitute an obstacle to a causal link being established between the error made and the harm sustained. The fact that a lost opportunity is small is unrelated to the existence of a causal link, but reflects only the fact that the harm sustained is small. Further, if the lost opportunity were required to have been serious in order for it to be eligible for compensation that would mean that only harm of a certain degree would be compensated, whereas the Union is required to make reparation in full to officials and other staff for the harm which it has caused to them.

Admittedly, the error must indeed have been the determining cause of the failure to realise the alleged opportunity. The Union cannot be held liable for harm unless the harm arises in a sufficiently direct manner from the unlawful conduct of an institution, which assumes that the illegality was the determining cause of the loss of opportunity.

(see paras 115-116, 118-119)

See:

21 June 1984, 69/83 Lux v Court of Auditors, para. 13; 9 September 1999, C‑257/98 P Lucaccioni v Commission, paras 22 and 28

5 October 2004, T‑45/01 Sanders and Others v Commission, para. 150; 5 October 2004, T‑144/02 Eagle and Others v Commission, para. 165; 6 June 2006, T‑10/02 Girardot v Commission, para. 96

25 November 2008, T‑50/07 Hristova v Commission, para. 41; 12 May 2011, F‑50/09 Missir Mamachi di Lusignano v Commission, para. 179 and the case-law cited

6.      The fact that a successful candidate in a competition was not appointed an official does not prevent him from claiming compensation for the harm which he was made to suffer owing to the unlawfulness of the decision of the selection board in the competition not to enter him at the outset on the list of suitable candidates in the competition and relating to the loss of the opportunity to be appointed a probationary official.

While a person entered late on a list of successful candidates may obtain compensation, if he is eventually recruited, for the loss of the opportunity to have been appointed a probationary official sooner than he was, that does not mean that a person who has not been appointed an official cannot obtain compensation for having been unable to have the same opportunities to be recruited as those offered to the successful candidates placed on a list of suitable candidates at the outset where, in particular, it is clear that those opportunities to be recruited were greater and that they corresponded more to those from which that person eventually benefited.

(see para. 126)

See:

13 September 2011, F‑101/09 AA v Commission, para. 81 et seq.

7.      In relation to the non-contractual liability of the European Union, an applicant does not have to prove the existence of non-material harm or of a causal link, as these may be inferred from the circumstances and from the nature of the error that has been established. Thus, it is common ground that the feeling of injustice and distress caused by the fact that an individual is required to undergo an administrative procedure, and then judicial proceedings, in order to secure recognition of his rights constitutes harm that can be inferred from the mere fact that the administration acted unlawfully.

(see para. 128)

See:

7 February 1990, C‑343/87 Culin v Commission, paras 27 and 28