JUDGMENT OF THE EUROPEAN UNION
CIVIL SERVICE TRIBUNAL
(Third Chamber)
18 November 2015
Case F‑30/15
Alkis Diamantopoulos
v
European External Action Service (EEAS)
(Civil service — EEAS staff — Promotion — 2012 promotion exercise — Decision not to promote the applicant to grade AD 12 — Implementation of a judgment for annulment based on failure to state reasons — Article 266 TFEU — Confirmation of the initial decision — Interinstitutional transfer)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Diamantopoulos seeks annulment of the decision of the European External Action Service of 29 April 2014 not to promote him to grade AD 12 in the 2012 promotion exercise. He also seeks an award of damages.
Held: The decision of the European External Action Service of 29 April 2014 not to promote Mr Diamantopoulos to grade AD 12 in the 2012 promotion exercise is annulled. The parties are to send the Tribunal, within two months of delivery of this interlocutory judgment, either the mutually agreed amount of financial compensation attaching to the unlawfulness of the decision of 29 April 2014 or, in default of agreement, their submissions as to that amount together with supporting calculations. The costs are reserved.
Summary
1. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Observance of principle of good faith
(Art. 266 TFEU)
2. Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a decision not to promote based on failure to state reasons — Obligation to observe procedural safeguards in adopting a decision in substitution for that decision — Scope
(Art. 266 TFEU; Staff Regulations, Art. 45)
3. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Scope — Relevant EU case-law to be taken into consideration
(Art. 266 TFEU)
1. Judgments for annulment must be implemented in accordance with the principle of good faith, a principle to which the actions of the administration are always subject.
(see para. 21)
See:
Judgment of 8 May 2007 in Citymo v Commission, T‑271/04, EU:T:2007:128, paragraph 107
Judgments of 10 November 2010 in OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461, paragraph 70, and 14 December 2010 in Bleser v Court of Justice, F‑25/07, EU:F:2010:163, paragraph 142
2. In cases where an EU institution has a wide discretion, as it does in the area of promotion, the observance of certain procedural safeguards is of fundamental importance. Among those safeguards is the obligation to examine, carefully and impartially, all relevant aspects of the situation at issue and to provide a sufficient statement of the reasons for decisions.
More specifically, the primary function of the statement of reasons is to reduce the risk of arbitrariness by requiring the administration to organise its reasoning into a coherent whole and by leading it, in this way, to rationalise its opinion and the effect of its decision on the basis of relevant arguments which are unequivocal, free of contradiction and sufficient.
Thus, the primary reason for the obligation to state reasons attaching to the obligations to which the administration is subject under Article 266 TFEU, where one of its acts has been annulled, gives rise to two successive obligations on the part of the institution concerned. First, the institution is required to carry out an effective reconsideration of the grounds which, while not expressed in the annulled decision not to promote, may nonetheless underlie that decision, and must do so in the light of the reasons which form the necessary support for the operative part of the judgment. Secondly, it is required to make the grounds thus reconsidered explicit in the decision made in substitution for the decision not to promote. Otherwise, the obligation to give a sufficient statement of reasons for a decision, especially after an annulment for failure to give reasons, or to give sufficient reasons, would be artificial and meaningless, when the statement of reasons is an essential procedural requirement. Furthermore, the need, after annulment for infringement of the obligation to state reasons, to carry out an effective reconsideration of the grounds which may have formed the basis for a decision for which there was no express statement of reasons, and to make that reconsideration explicit in a statement of reasons, does not relate to the merits of the decision on promotion and, a fortiori, does not require the administration to take a decision in the applicant’s favour. Rather, it is a procedural step which is a prerequisite for the adoption of a lawful decision.
(see paras 24-26)
See:
Judgments of 23 September 2004 in Hectors v Parliament, C‑150/03 P, EU:C:2004:146, paragraph 41, and 16 June 2015 in Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 69
Judgment of 8 September 2009 in ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 163
3. Under Article 266 TFEU, the necessary measures to comply with a judgment for annulment must accord not only with the operative part and the reasoning of that judgment, but also with the provisions of EU law. Having regard, furthermore, to the rule that the lawfulness of an act is to be assessed by reference to the factual and legal circumstances as they stood at the time of its adoption, it is incumbent on the institution concerned to take the relevant case-law of the EU courts into account. The interpretation which an EU court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force.
(see para. 33)
See:
Judgment of 6 October 2004 in Vicente-Nuñez v Commission, T‑294/02, EU:T:2004:291, paragraphs 46 and 47
Judgments of 12 July 2011 in Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 164, and 11 June 2015 in McCullough v Cedefop, T‑496/13, EU:T:2015:374, paragraph 16
Judgment of 28 June 2011 in Mora Carrasco and Others v Parliament, F‑128/10, EU:F:2011:96, paragraph 39