JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

11 September 2008

Case F-51/07

Philippe Bui Van

v

Commission of the European Communities

(Civil service – Officials – Recruitment – Classification in grade and step – Incorrect classification – Withdrawal of a measure tainted with illegality – Legitimate expectations – Reasonable period of time – Rights of the defence – Right to good administration)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bui Van seeks annulment of the decision of the Director-General of the Joint Research Centre of the Commission dated 4 October 2006 reclassifying him in grade AST 3, step 2, whereas he had initially been classified in grade AST 4, step 2, and the decision of the appointing authority of 5 March 2007 rejecting his complaint, and seeks the payment of one symbolic euro as compensation for the non-material damage allegedly suffered.

Held: The Commission is ordered to pay the applicant the sum of EUR 1 500 by way of damages and interest. The remainder of the action is dismissed. The applicant is to bear two thirds of his own costs. The Commission is to bear its own costs and one third of the costs incurred by the applicant.

Summary

1.      Officials – Principles – Protection of legitimate expectations – Conditions

(Staff Regulations, Art. 85, first para.)

2.      Acts of the institutions – Withdrawal – Unlawful acts – Conditions – Reasonable time – Calculation

(Staff Regulations, Art. 91(3))

3.      Officials – Principles – Rights of the defence

(Charter of Fundamental Rights of the European Union, Art. 41(2))

1.      While it must be acknowledged that any Community institution which establishes that a measure which it has just adopted is tainted with illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof, where he has not provoked the adoption of the measure by means of false or incomplete information. In that respect, the operative time for determining whether the addressee of an administrative act has acquired legitimate expectations is not the date on which the act was adopted or withdrawn but the date on which it was notified.

It is necessary to seek guidance in this regard in the case-law on the conditions justifying the recovery of overpayments by the administration, set out in the first paragraph of Article 85 of the Staff Regulations, especially the condition that the payment be patently incorrect.

Furthermore, even if the addressee of the unlawful measure had legitimate expectations, an overriding public interest, in particular in the sound management and protection of the institution’s financial resources, may prevail over the beneficiary’s interest in the maintenance of a situation which he could count on as stable.

(see paras 51, 53, 54, 56, 62)

See:

42/59 and 49/59 Snupat v High Authority [1961] ECR 53, 86 and 87; 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority [1962] ECR 253, 269 and 271; 14/81 Alpha Steel v Commission [1982] ECR 749, paras 10 to 12; 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paras 12 to 17; C-248/89 Cargill v Commission [1991] ECR I‑2987, para. 20; C‑365/89 Cargill [1991] ECR I‑3045, para. 18; C-90/95 P De Compte v Parliament [1997] ECR I‑1999, paras 35 to 37 and 39; C-183/95 Affish [1997] ECR I‑4315, para. 57 and the case-law cited therein.

T-38/93 Stahlschmidt v Parliament [1994] ECR-SC I‑A‑65 and II‑227, para. 19; T-205/01 Ronsse v Commission [2002] ECR-SC I‑A‑211 and II‑1065, para. 47; T-180/02 and T-113/03 Gouvras v Commission [2004] ECR-SC I‑A‑225 and II‑987, para. 110; T‑416/04 Kontouli v Council [2006] ECR-SC I-A-2-181 and II‑A‑2‑897, paras 161, 162 and 167; T-324/04 F v Commission [2007] ECR-SC I‑A-2-0000 and II-A-2-0000, para. 142

2.      The withdrawal of an unlawful administrative measure must take place within a reasonable period which is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity, the conduct of the parties involved, whether the measure in question confers subjective rights, and the balance of interests. It must be considered, as a general rule, that a period for withdrawal corresponding to the three-month period for bringing proceedings laid down in Article 91(3) of the Staff Regulations is reasonable. Given that that period applies to the administration itself, it is appropriate to take, as the starting point, the date on which the administration adopted the measure which it intends to withdraw.

(see paras 63, 67-69)

See:

Snupat v High Authority, p. 86; Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority, p. 272; De Compte v Parliament, para. 35; C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, para. 187

T-20/96 Pascall v Commission [1997] ECR-SC I‑A‑361 and II‑977, paras 72 and 77; T-197/99 Gooch v Commission [2000] ECR‑SC I‑A‑271 and II‑1247, para. 53; T-144/02 Eagle and Others v Commission [2004] ECR II‑3381, para. 66; Kontouli v Council, para. 161

3.      Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle, which reflects the requirements of good administration, demands that the person concerned should have been afforded the opportunity to effectively make known his views on any matters which might be taken into account to his detriment in the measure to be taken. In that regard, Article 41(2) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000, provides that the right to good administration ‘includes ... the right of every person to be heard, before any individual measure which would affect him or her adversely is taken …’.

However, not every infringement of the rights of the defence is to be penalised by annulment of the contested measure. That is the case where the unlawfulness of the contested measure did not influence its content. Nevertheless, an unlawful act that constitutes an administrative fault is capable of giving rise to compensation.

Thus, an official to whom the administration has not afforded a hearing before adopting a decision adversely affecting him suffers non-material damage as a result of feeling that he has been presented with a fait accompli and must therefore be adequately compensated.

(see paras 72-74, 81, 84, 92-94)

See:

234/84 Belgium v Commission [1986] ECR 2263, para. 27; C‑301/87 France v Commission [1990] ECR I‑307, para. 31; C‑142/87 Belgium v Commission [1990] ECR I‑959, para. 48; C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, para. 99; C-288/96 Germany v Commission [2000] ECR I‑8237, paras 99 and 101; Limburgse Vinyl Maatschappij and Others v Commission, paras 318 and 324; C-344/05 P Commission v De Bry [2006] ECR I‑10915, paras 37 and 38

T-372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, para. 31; T-277/03 Vlachaki v Commission [2005] ECR-SC I‑A‑57 and II‑243, para. 64