Language of document : ECLI:EU:F:2016:76

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

12 April 2016

Case F‑98/15

CP

v

European Parliament

(Civil service — Officials — Head of unit — Trial period — Not confirmed in the post of Head of unit — Enforcement of a judgment annulling a measure — Loss of opportunity)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which CP essentially seeks, first, annulment of Article 2 of the decision of the European Parliament of 18 July 2014, in so far as it provides that the increase in his basic salary relating to his appointment as Head of unit (‘the management allowance’) will be made after a period of nine months, and, second, compensation for the ‘material and financial’ harm allegedly suffered.

Held:      The European Parliament is ordered to pay CP the sum of EUR 3 219.55. Default interest calculated at the rate fixed by the European Central Bank for its main refinancing operations and applicable to the material period, increased by two points, to run from 1 July 2011 until the date of actual payment, is to be added to that sum. The remainder of the action is dismissed. Each party is to bear its own costs.

Summary

1.      Actions for annulment — Judgment annulling a measure — Effects — Obligation to implement — Particular difficulties — Due compensation for the damage suffered by the applicant as a result of the annulled measure

(Art. 266 TFEU)

2.      Actions brought by officials — Unlimited jurisdiction — Compensation for material harm associated with loss of opportunity — Assessment — Criteria

(Staff Regulations, Art. 91(1))

1.      Where a measure of an institution or agency is annulled by the judicature, it is for the institution or agency, pursuant to Article 266 TFEU, to take the appropriate measures to comply with the judgment. In order to comply with the judgment annulling the measure and to implement it fully, the institution responsible for the annulled measure is required to have regard not only to the operative part of the judgment 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 which, 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 which the institution concerned must take into account when replacing the annulled measure. As regards the effects of the annulment of a measure by the judicature, it operates ex tunc and therefore has the effect of retroactively eliminating the annulled measure from the legal order. The defendant institution is therefore required, pursuant to Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities found to exist, which, in the case of a measure which has already been implemented, involves restoring the applicant’s legal position to what it was prior to that measure.

An institution responsible for a measure which has been annulled cannot rely on practical difficulties in order to avoid its obligation to eliminate the illegality committed. If the implementation of a judgment annulling a measure presents particular difficulties, the institution concerned may satisfy the obligation arising from Article 266 TFEU by taking such decisions as will provide due compensation for the damage which the person concerned has suffered as a result of the decision which has been annulled.

(see paras 59, 71)

See:

Judgment of 8 October 1992 in Meskens v Parliament, T‑84/91, EU:T:1992:103, para. 78

Judgments of 15 April 2010 in Angelidis v Parliament, F‑104/08, EU:F:2010:23, paras 35 and 36 and the case-law cited therein; 13 September 2011 in AA v Commission, F‑101/09, EU:F:2011:133, para. 81, and 21 March 2013 in Brune v Commission, F‑94/11, EU:F:2013:41, para. 59

2.      Provided that it is substantiated, loss of opportunity constitutes material damage for which compensation may be claimed. In order to determine the amount of compensation to be paid in respect of loss of opportunity, it is necessary, having identified the nature of the opportunity of which the official has been deprived, to determine the date from which he would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the official of that loss of opportunity. In addition, where possible the opportunity of which an official has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this way it is accepted that the damage suffered may be assessed ex æquo et bono.

(see paras 68, 79)

See:

Judgment of 10 November 2010 in OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461, para. 104

Judgment of 13 March 2013 in AK v Commission, F‑91/10, EU:F:2013:34, paras 69, 91 and 92 and the case-law cited therein