JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

17 October 2013

Case F‑59/12

BF

v

Court of Auditors of the European Union

(Civil service — Appointment — Recruitment of a director — Vacancy notice — Act adversely affecting an official — None — Inadmissibility)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BF, the applicant, essentially seeks annulment of vacancy notice ECA/2011/67 for the post of Director of Human Resources in the Secretariat-General of the Court of Auditors of the European Union, and compensation for the material and non-material harm suffered.

Held:      The action is dismissed. BF is to bear his own costs and is ordered to pay the costs incurred by the Court of Auditors of the European Union.

Summary

Actions brought by officials — Act adversely affecting an official — Definition — Vacancy notice not affecting the applicant’s legal position — Not included

(Staff Regulations, Art. 90)

Any measure the legal effects of which are binding on and capable of affecting the interests of the applicant directly and immediately, by bringing about a distinct change in his legal position, is an act adversely affecting an official which may be the subject of an action under Article 91 of the Staff Regulations.

In an action against a vacancy notice which opens a recruitment procedure for a second time and does not have the effect of excluding the applicant’s candidature, the effects which the applicant attributes to that vacancy notice — that it makes it impossible in practice for him to be appointed to the contested post pursuant to any judgment of the Civil Service Tribunal annulling decisions taken at the end of a first recruitment procedure to appoint a third person to the contested post and to reject his candidature — are, on the date when the vacancy notice is published, purely hypothetical and are therefore not such as to prove that the notice affects his interests directly and immediately.

At the end of the second recruitment procedure, the appointing authority is not necessarily obliged to fill the contested post. Also, there is no reason to think, on the date when the contested vacancy notice is published, that, if the second recruitment procedure is completed, the applicant will not be appointed to the contested post. As for the effects of the judgment to be issued in the case for annulment of the decisions taken at the end of the first recruitment procedure, those decisions are presumed to be legal, and the mere fact of having brought proceedings does not give the applicant any subjective right to be appointed to the contested post, or the right to paralyse any possible administrative initiative to fill that post. Moreover, if the Civil Service Tribunal were to annul the decisions taken at the end of the first recruitment procedure, it would then be for the institution concerned to take appropriate measures to comply with the judgment, and the applicant could challenge those measures in due course, if necessary.

Consequently, the contested vacancy notice and the second recruitment procedure do not, as such, produce any binding legal effects capable of affecting the interests of the applicant directly and immediately. The contested vacancy notice does not, therefore, adversely affect the applicant merely by its publication.

(see paras 20-26)

See:

11 May 1978, 25/77 De Roubaix v Commission, paras 7 and 8

18 May 2006, F‑13/05 Corvoisier and Others v ECB, para. 44; 9 July 2009, F‑91/07 Torijano Montero v Council, paras 24 and 27 and the case-law cited therein