JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

13 September 2011


Case F‑101/09


AA

v

European Commission

(Civil service – Appointment – Members of the temporary staff appointed as officials – Classification in grade – Compliance with a judgment – Loss of opportunity)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby AA seeks annulment of the decision classifying him in Grade AD 6, Step 2, and, in the alternative, an order that the Commission pay damages for loss of the opportunity to have been recruited under the regime of the Staff Regulations of Officials of the European Communities in the version in force before 1 May 2004 and, subsequently, loss of the opportunity to receive a better salary.

Held:      The Commission is ordered to pay the applicant, in respect of the pecuniary damage before delivery of the present judgment, a sum equal to the difference between, on the one hand, the remuneration, after deduction of social contributions and tax, which he would have received if he had been recruited as an official at intermediate grade A*6 on 1 August 2004 and if, subsequently, his career had proceeded in accordance with the advancement in step provided for in the Staff Regulations of Officials of the European Union and at the average duration spent by an official in each grade, as indicated in Annex I(b) to the Staff Regulations and, on the other, the remuneration after deduction of social contributions and taxes which the applicant received between 1 August 2004 and the date of delivery of the present judgment, first of all in his capacity as a national civil servant, then, from 15 March 2009, in his capacity as an official of the European Union, such difference to be weighted at the rate of 0.8. The Commission is ordered to pay the applicant the sum of EUR 120 000 in respect of the pecuniary harm subsequent to delivery of the present judgment. The Commission is ordered to pay the applicant the amount of the sums already payable in order to comply with the present judgment, plus interest, calculated from the respective dates on which those sums were payable, and if those dates are earlier than 15 March 2009, from that date. That interest must be calculated, until the date of actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the relevant period, plus two percentage points. The Commission is ordered to pay the applicant compensation of EUR 2 000 in respect of non-pecuniary harm. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay two thirds of the applicant’s costs. The applicant is ordered to bear one third of his own costs.

Summary

1.      Officials – Actions – Judgment annulling a measure – Effects – Annulment of a decision refusing to include a person on a reserve list

(Art. 233 EC; Art. 266 TFEU)

2.      Officials – Actions – Action for compensation brought in the absence of an administrative procedure in accordance with the Staff Regulations – Claim for compensation linked with an application for annulment and seeking compensation for the harm resulting from the absence in part of measures to comply with a judgment annulling a measure – Admissibility

(Art. 233 EC; Art. 266 TFEU; Staff Regulations, Arts 90 and 91)

3.      Officials – Actions – Judgment annulling a measure – Effects – Obligation to adopt measures in order to comply with a judgment – Particular difficulties – Fair compensation for the disadvantage resulting for the applicant from the annulled measure

(Art. 233 EC; Art. 266 TFEU; Staff Regulations, Art. 91(1))

4.      Officials – Non-contractual liability of the institutions – Failure to fulfil the obligation to comply with a judgment annulling a measure – Administrative error giving rise in itself to non-pecuniary harm

1.      In accordance with Article 233 EC (now, after amendment, Article 266 TFEU), the institution whose act has been declared void by a Court of the Union is to be required to take the necessary measures to comply with the judgment annulling that act in order to make reparation for the illegality which it committed. Thus, in principle, the administration must itself put the official concerned in exactly the same position in which he would have been today in the absence of the illegality found. To that effect, in order to correct in time the consequences which that illegality may have had, and on condition that the legitimate expectations of those concerned are properly respected, the administration may adopt an act having a retroactive nature.

In that regard, as regards compliance with a judgment annulling a refusal to include a person on a competition reserve list, inclusion on that list gives the person concerned an eligibility and not a right to be appointed as an official, still less within a certain period, even where the competences of the person concerned correspond to the needs of the service. Consequently, even if the person concerned had been included from the outset on the reserve list, he would not necessarily have been recruited before the entry into force of Regulation No 723/2004 amending the Staff Regulations of officials and the Conditions of Employment of other servants.

(see paras 41, 44)

See:

22 December 2008, C‑443/07 P Centeno Mediavilla and Others v Commission, para. 112

31 March 2004, T‑10/02 Girardot v Commission, para. 49; 11 July 2007, T‑58/05 Centeno Mediavilla and Others v Commission, para. 52

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

2.      As regards claims for compensation associated with compliance with the judgment, alleging not that the decisions adopted by the administration in order to comply with the annulment judgment are contrary to that judgment, but that the decisions adopted allow only partial compensation to be made for the consequences of the illegality, which none the less constitutes a case of failure to comply with the judgment, those claims must be regarded as taking issue with the appointing authority for having failed to adopt, pursuant to Article 233 EC (now, after amendment, Article 266 TFEU), a measure comparable to a measure prescribed by the Staff Regulations, within the meaning of Article 90(2) of the Staff Regulations. As failure to adopt a measure prescribed by the Staff Regulations constitutes an act adversely affecting an official, against which he is entitled, first, to lodge, within three months, a complaint, without the admissibility of his action being conditional on submission of a request on the basis of Article 90(1) of the Staff Regulations, the same solution must be applied to claims for compensation, as the applicant takes issue with the administration for not having adopted all the measures prescribed by Article 233 EC, now, after amendment, Article 266 TFEU.

That is all the more true because in any event to require an official claiming non-compliance with an annulment judgment delivered in his favour, first, to lodge a complaint against the decision of the appointing authority which constitutes an imperfect compliance with the annulment judgment and, second, to submit a separate request for compensation, on the basis of Article 90(1) of the Staff Regulations, a request which, in the event of a refusal by the administration, should then also give rise to the submission of a complaint, would run counter to the requirements of procedural economy imposed by the principle of respect for a reasonable time.

(see paras 75, 76)

See:

17 April 2007, F‑44/06 and F‑94/06 C and F v Commission, paras 57 and the case-law cited and 58

3.      Where compliance with a judgment annulling a measure presents particular difficulties, relating, for example, to the fact that it is impossible to determine whether the applicant would have been recruited before a certain date, the institution concerned may meet its obligations under Article 233 EC (now, after amendment, Article 266 TFEU) by adopting a decision of such a kind as to ensure fair compensation for the disadvantage resulting for the person concerned from the decision which was annulled. It follows that, as the administration had the option to compensate the applicant, it ought to have done so in order to make compensation for the financial consequences for the applicant of the loss of the opportunity to have been recruited sooner than he was and, consequently, the loss of the opportunity to receive a better salary, to be now at a more advanced stage in his career, to have better career prospects and to receive a better pension. The loss of an opportunity such as, in particular, the opportunity to be recruited and, consequently, to be promoted sooner constitutes pecuniary harm which is actual and certain and, accordingly, capable of being compensated.

In order to determine the amount of the compensation that ought to have been paid to the applicant on the ground that in confining itself to including him on the reserve list the administration only partially complied with a judgment annulling a measure and therefore only partially compensated for the consequences of the illegality committed by the competition selection board, it is appropriate to identify the nature of the opportunity of which the applicant was deprived, the date from which the applicant ought to have been able to take advantage of that opportunity, then to quantify that opportunity and, last, to specify what were the financial consequences for him of that loss of opportunity.

The opportunity of which the applicant was deprived was the opportunity to be recruited sooner than he was and, subsequently, having regard to the rules applicable to advancement in step and the average time spent in a grade, to receive better remuneration than he actually received, to be at present at a more advantageous stage in his career, to have better career prospects and to receive a better pension. It follows that the financial consequences of that loss of opportunity must be assessed by reference to the difference between the salaries and pensions which the applicant could have received and those which he has received and will receive.

The eligibility to be recruited of every successful candidate in a competition who is entered on a reserve list is transformed into an opportunity to be recruited only from the date on which a post, for which it is reasonable to think that that successful candidate might have been recruited, is to be filled. If the applicant had been included from the outset on the reserve list, it is more than likely that he would have been recruited to the post which he formerly held as a member of the temporary staff, if he had given full satisfaction and had thereby acquired professional experience in that post. It is common ground that possession of proven professional experience is an important factor to be taken into account in order to decide on the choice of the candidate to be recruited.

The opportunity of which a person has been deprived must be determined objectively, in the form of a mathematical coefficient. As regards the loss of the opportunity to receive a better salary, which depends on the person’s opportunity to obtain a better-paid post, such a coefficient may be calculated on the basis of various factors such as, in particular, the candidate’s previous experience in the institution and the extent to which his qualifications match the description of the post in question. However, where the opportunity of which the applicant was deprived cannot be quantified in the form of a mathematical coefficient, the harm sustained may be evaluated on an equitable basis. It must therefore be inferred that, in order to evaluate the harm sustained by the applicant, the Civil Service Tribunal may equitably fix the mathematical coefficient to be used, which reflects the loss of opportunity suffered.

In order to evaluate the financial consequences of a loss of opportunity, it is necessary to begin by determining, on the basis of projections, the financial advantage on which the person who suffered the loss of opportunity would have been able to rely if that opportunity had been realised, then to compare that situation with his present financial situation and, last, to apply to the difference in financial advantages between those two situations the mathematical coefficient reflecting the opportunity which he has lost.

However, when it comes to evaluating the pecuniary harm which an applicant will sustain after delivery of a judgment finding that he has suffered a loss of the opportunity to be recruited and, consequently, promoted sooner than he was, the most relevant method consists in making a lump-sum estimate, on an equitable basis, of the harm, which takes account not only of the applicant’s present grade, the advancement in step provided for in the Staff Regulations, the average period spent by an official in each grade as indicated in Annex I(b) to the Staff Regulations, the life expectancy of a national of the European Union, the mathematical coefficient applied, but also of the fact that when the present judgment is implemented the applicant will receive a sum which will be immediately available to him.

(see paras 81, 83-85, 91, 93, 94, 96, 105)

See:

Girardot v Commission, paras 53, 58 et seq., 96 and 119

10 November 2010, T‑260/09 P OHIM v Simões Dos Santos, para. 104

8 May 2008, F‑6/07 Suvikas v Council, paras 141 to 144; 24 June 2008, F‑15/05 Andres and Others v ECB, para. 132 and the case-law cited

4.      The refusal by a European institution to comply with a decision delivered by a Court of the European Union constitutes a breach of the confidence which every person must have in the EU legal system, based, in particular, on compliance with the decisions delivered by the EU Courts. Accordingly, independently of any pecuniary harm that might flow from the failure to comply with a judgment, the partial compliance with the judgment entails in itself non-pecuniary harm for the applicant.

(see para. 107)

See:

12 December 2000, T‑11/00 Hautem v EIB, para. 51