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

13 December 2012

Case F‑42/11

Stephanie Honnefelder

v

European Commission

(Civil service — Open competition — Annulment of a decision of a selection board — Implementation of a judgment — Principle of legality — Plea of illegality against a decision to reopen the procedure for an open competition)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Honnefelder seeks annulment of the decision of the selection board for open competition EPSO/AD/26/05 of 11 February 2011 not to place her on the reserve list.

Held: The action is dismissed. The applicant is to bear two thirds of her own costs. The Commission is to bear its own costs and is ordered to pay one third of Ms Honnefelder’s costs.

Summary

1.      Actions brought by officials — Action brought against an act adversely affecting a person taken during a recruitment procedure — Plea alleging the irregularity of a previous act adversely affecting the person concerned taken during the same procedure — Lawfulness — Conditions

(Staff Regulations, Art. 91)

2.      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 competition selection board not to place a candidate on the reserve list — Reopening of the competition solely in respect of the applicant — Appropriate implementing measure

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

3.      Officials — Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Administration’s discretion — Possibility of establishing a dialogue with the victim

(Art. 266 TFEU)

4.      Officials — Non-contractual liability of the institutions — Breach of the obligation to provide information — Wrongful act not entailing annulment of an act

1.      An applicant is entitled to rely on irregularities relating to the arrangements for the organisation of a competition in an action brought against the individual decision rejecting his candidature and cannot be criticised for not having lodged a complaint or brought an action within the prescribed periods against the decision setting out the arrangements for the organisation of the competition.

There is no provision of the Staff Regulations that requires that an applicant wishing to challenge, by way of plea, the legality of an act of the administration must lodge a complaint specifically against that act, notwithstanding that the action meets the conditions of admissibility. Nor is a plea of illegality inadmissible on the sole ground that it was not first raised in a complaint.

(see paras 34, 37)

See:

11 August 1995, C‑448/93 P Commission v Noonan, paras 17 to 19

16 September 1993, T‑60/92 Noonan v Commission, para. 21

1 July 2010, F‑45/07 Mandt v Parliament, para. 121

2.      Following a judgment annulling a measure, the institution concerned is required under Article 266 TFEU to take the necessary measures to eliminate the effects of the illegalities found, which, in the case of an act which has already been implemented, consists in putting the applicant back in the legal situation he was in before that act was adopted.

In order to comply with its obligation under Article 266 TFEU, the institution must adopt specific measures capable of eliminating the illegality committed vis-à-vis the person concerned. Thus, it cannot plead practical difficulties that might be involved in putting the applicant back in the legal situation he was in before the act which has been annulled was adopted in order to avoid that obligation. It is only as a subsidiary matter, where implementation of a judgment annulling a measure encounters serious obstacles, that the institution concerned may fulfil its obligation by taking any decision capable of providing fair compensation for the detriment to the party concerned resulting from the decision which has been annulled.

In that regard, while it is for the institution concerned to determine what measures are necessary in order to implement the judgment of the Tribunal annulling a measure, its discretion is limited by the need to comply with the operative part and the grounds of the judgment which it is required to implement and also with 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 measure.

However, in the case of an open competition organised in order to draw up a recruitment reserve, the administration may seek a fair solution in the particular case of a candidate who was unlawfully excluded. Thus, in the case of an open competition organised in order to draw up a recruitment reserve and the tests of which have been vitiated, a candidate’s rights are adequately protected if the appointing authority reopens, vis-à-vis that candidate, the competition held for the purpose of drawing up a reserve list, such reopening entailing the restoration of the situation as it existed before the circumstances condemned by the Tribunal took place. Conversely, a solution consisting in placing the applicant on the reserve list for the competition without his being required to resit the vitiated test could not be accepted without there being a breach not only of the principle of equal treatment, the principle of objectivity of the concept and the notice of competition, but also Article 27 of the Staff Regulations.

(see paras 44-46, 49, 52)

See:

14 July 1983, 144/82 Detti v Court of Justice, paragraph 33; 6 July 1993, C‑242/90 P Commission v Albani and Others, paragraph 13

8 October 1992, T‑84/91 Meskens v Parliament, paragraph 78; 26 June 1996, T‑91/95 De Nil and Impens v Council, paragraph 34; 23 April 2002, T‑372/00 Campolargo v Commission, paragraph 109 and the case-law cited; T‑119/99 Hoyer v Commission, paragraph 37; 13 September 2005, T‑283/03 Recalde Langarica v Commission, paragraphs 50 and 51

24 June 2008, F‑15/05 Andres and Others v ECB, paragraph 132 and the case-law cited

3.      As the action of the administration is carried out unilaterally, it is for the latter to determine what measures are required in order to implement a judgment annulling a measure. Accordingly, the administration may, but is not required to establish a dialogue with the victim of an illegality in order to reach an agreement providing the victim with fair compensation.

(see para. 53)

See:

Meskens v Parliament, paragraph 80; De Nil and Impens v Council, paragraph 34

4.      An argument taking issue with the administration for having failed to fulfil its obligation to provide information, if it were well founded, could not result in the contested measure being annulled, but only to the administration being held non-contractually liable for its wrongful act.

(see para. 62)

See:

9 December 2010, F‑83/05 Ezerniece Liljeberg and Others v Commission, paragraph 105 et seq.