JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

28 February 2013

Case F‑51/11

Dimitrios Pachtitis

v

European Commission

(Civil service — Open competition — Annulment of the decision not to admit a candidate to the next stage of a competition — Implementation of a judgment — Decision to reopen an open competition procedure and to invite the unlawfully excluded candidate to re-sit the access tests)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Pachtitis seeks annulment of the decisions of the European Personnel Selection Office (EPSO) to reopen the procedure in open competition EPSO/AD/77/06 and to invite him to re-sit the tests for access to that competition.

Held: The action is dismissed. The applicant is to bear his own costs and is ordered to pay the costs incurred by the Commission.

Summary

Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Annulment of the decision of a selection board for a competition not to admit a candidate to the next stage of a competition — Reopening of the competition solely with respect to the applicant — Adequate method of implementation

(Art. 266 TFEU; Staff Regulations, Art. 27)

Following a judgment annulling a decision, the institution concerned is required, by virtue of the first paragraph of Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities established, which, in the case of an act that has already been executed, entails restoring the applicant to the legal position he was in prior to that act.

In order to do so, the institution which adopted the act which has been annulled is required to have regard not only to the operative part of the judgment annulling the act but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds that, on the one hand, identify the provision held to be illegal and, on the other, indicate the reasons which underlie the finding of illegality contained in the operative part and that the institution concerned must take into account when replacing the annulled measure.

Furthermore, while it is for the institution concerned to determine what measures are required in order to implement the annulment judgment, its discretion is limited by the need to have regard both to the operative part and the grounds of the judgment and to the provisions of EU law. Thus, the defendant institution must, in particular, ensure that the measures adopted are not vitiated by the same irregularities as those identified in the judgment annulling the earlier decision.

In that regard, in the case of an open competition held in order to establish a recruitment reserve, the tests in which have been found to be flawed, a candidate’s rights are sufficiently protected if the appointing authority reopens, with respect to that candidate, the competition intended to establish a reserve list, since reopening the competition entails the restoration of the position as it existed before the circumstances condemned by the courts came into being.

Conversely, the solution consisting in admitting the applicant to participate in the second stage of the competition without having re-sat the access tests could not be applied by the selection board without there being a breach not only of the principle of equal treatment, the principle of objectivity of the marking and the notice of competition, but also of Article 27 of the Staff Regulations.

(see paras 43-45, 48, 49)

See:

13 July 2000, C‑8/99 P Gómez de Enterría Sanchez v Parliament, para. 22

13 September 2005, T‑283/03 Langarica v Commission, para. 51; 5 December 2002, T‑119/99 Hoyer v Commission, para. 37 and the case-law cited

20 June 2012, F‑79/11 Menidiatis v Commission, para. 30 and the case-law cited; 13 December 2012, F‑42/11 Honnefelder v Commission, paras 45, 46, 50 and 52 and the case-law cited