Language of document : ECLI:EU:F:2013:94

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 June 2013

Case F‑12/12

Rita Di Prospero

v

European Commission

(Civil service — Appointment — Success in a competition following a request to the applicant to sit the competition with a view to complying with a judgment — Appointment in grade with retroactive effect)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Di Prospero seeks annulment of the European Commission’s implied decision rejecting her request for classification at grade AD 11 with retroactive effect as at 1 January 2010, as well as compensation for the material and non-material damage she suffered.

Held:      The decision of the European Commission of 18 October 2011 refusing to classify Ms Di Prospero at grade AD 11 with retroactive effect from 1 January 2010 is annulled. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay those incurred by Ms Di Prospero.

Summary

Officials — Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a decision of the European Personnel Selection Office (EPSO) not to allow an applicant to apply for a competition — Applicant having passed a different competition for recruitment at a lower grade — Obligation for the administration to appoint the applicant at the higher grade with retroactive effect

(Art. 266 TFEU; Staff Regulations, Arts 3 and 31(1))

Where the Union judicature has annulled a decision of the European Personnel Selection Office (EPSO) refusing to allow a candidate to apply for a competition, the administration must, if it is to comply properly with that judgment, restore the candidate to exactly the situation he would have been in if he had been able to apply for the competition. In that respect, allowing the person concerned to submit an application may not be regarded as adequate compliance with the obligation arising from Article 266 TFEU if, having passed a different competition, organised in parallel, for recruitment at a lower grade, he has not been able to be recruited at the higher grade in the first competition with effect from the date on which the other candidates in that competition were recruited.

As a result of the judgment annulling the decision, it was for the institution, in the exercise of the discretion conferred on it by Article 266 TFEU, to choose between the various measures possible in order to reconcile the interests of the service and the need to remedy the damage caused to the applicant. Given that it was required to adopt specific measures to eliminate the effects of the unlawful act committed in respect of the candidate, the institution should, pursuant to Article 3 of the Staff Regulations, have taken account of the material change in the candidate’s situation since the judgment annulling the decision, that is to say, his taking up his duties. Consequently, there was nothing to prevent the institution from appointing the candidate at the higher grade, under Article 31(1) of the Staff Regulations, with retroactive effect.

Provided that the legitimate expectations of the person concerned are properly respected, the retroactive effect of an administrative measure may be precisely what is required to ensure compliance with a fundamental principle, in the present case the principle of an effective legal remedy.

(see paras 31-36)

See:

8 October 1992, T‑84/91 Meskens v Parliament, para. 78; 29 June 2005, T‑254/04 Pappas v Committee of the Regions, para. 44

11 September 2008, F‑135/07 Smajda v Commission, para. 48