JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
25 October 2013
Case T‑476/11 P
European Commission
v
Chrysanthe Moschonaki
(Appeal — Civil service — Officials — Notice of vacancy — Rejection of application — Action for annulment — Legal interest in bringing proceedings — Admissibility — Rule that the application corresponds to the complaint — Article 91(2) of the Staff Regulations — Action for damages)
Appeal: against the judgment of the European Union Civil Service Tribunal (First Chamber) of 28 June 2011 in Case F‑55/10 AS v Commission [2011] ECR-SC, seeking to have that judgment set aside.
Held: The judgment of the European Union Civil Service Tribunal (First Chamber) of 28 June 2011 in Case F‑55/10 AS v Commission [2011] ECR-SC is set aside in so far as it declares the plea in law alleging infringement of Article 7 of the Staff Regulations of Officials of the European Union to be admissible, in so far as it annuls the decision of 30 September 2009 whereby the European Commission rejected Ms Chrysanthe Moschonaki’s application on the basis of that plea in law, and in so far as it ordered the Commission to pay Ms Moschonaki the sum of EUR 3 000. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.
Summary
1. Actions brought by officials — Interest in bringing proceedings — Decision rejecting a candidate — Decision indissociable from the decision appointing another official — Need for a single overall assessment of the interest in bringing proceedings — Application for annulment solely of the decision rejecting the candidate — Lawfulness
(Staff Regulations, Arts 90 and 91)
2. Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Particular difficulties — Fair compensation for the disadvantage resulting for the applicant from the annulled measure
(Art. 266 TFEU)
3. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted
(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))
4. Appeals — Pleas in law — Plea against a ground of the judgment not necessary to support the operative part — Invalid plea in law
5. Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and cause of action — Pleas and arguments not made in the complaint but closely related to it — Admissibility — Plea of substantive legality or procedural legality — Condition not sufficient to establish that plea is admissible
(Staff Regulations, Arts 90 and 91)
6. Actions brought by officials — Prior administrative complaint –Correspondence between complaint and action — Same subject-matter and cause of action — Respect for the principles of effective judicial protection and legal certainty — Broad interpretation of the notions of subject-matter and cause of action — Change of legal basis of a dispute — Condition not sufficient to establish that the dispute has a new cause of action
(Charter of Fundamental Rights of the European Union, Art. 47; Staff Regulations, Arts 90 and 91)
7. Actions brought by officials — Prior administrative complaint — Correspondence between complaint and action — Same subject-matter and cause of action — Pleas and arguments not made in the complaint but seeking to challenge the validity of the reasoning set out in the reply to the complaint — Admissibility
(Staff Regulations, Arts 90 and 91)
8. Appeals — Appeal held to be well founded — Judgment to be given on the substance by the appeal court — Condition — Whether the state of the proceedings permits final judgment to be given
(Statute of the Court of Justice, Annex I, Art. 13(1))
1. Where an action is brought by an official under Articles 90 and 91 of the Staff Regulations seeking annulment of a decision to reject his candidature and of a decision appointing another official to the post he aspired to, the decision rejecting his candidature and the decision appointing the other official are not just linked but are indissociable, so that a single, overall assessment must be made of the applicant’s interest in obtaining annulment of the two decisions.
However, the official does not have to seek annulment of both the decision rejecting his candidature for a post and the decision appointing a third person to the post in question. If he intends to apply solely for annulment of the decision rejecting his candidature, he is under no obligation to seek annulment of both decisions.
Furthermore, it is consistent with the principle of proportionality for an official, in an effort to protect the rights of third parties, to be able to seek only annulment of the decision to reject his candidature, without being forced to seek annulment of the appointment of other officials in order to prevent his action from being inadmissible.
Hence, an official may wish to seek annulment of the decision rejecting his candidature in order to ensure that the illegality he alleges is not repeated in future in any similar procedure in which he might take part, but without seeking to call into question the decision to appoint a third person. In that case, the official’s interest in bringing proceedings must be assessed solely in the light of his application for annulment of the decision rejecting his candidature.
Moreover, the approach according to which, if the post in question has already been filled when the action is brought, the official’s application for annulment of the decision rejecting his candidature will only be admissible if he also seeks annulment of the appointment decision, would have the effect of introducing a condition for the admissibility of actions brought concerning the legality of acts adversely affecting officials within the meaning of Article 90(2) of the Staff Regulations which is not laid down in those Staff Regulations. There is no requirement either under Article 91 of the Staff Regulations, relating to actions brought by officials before the Courts of the European Union against acts adversely affecting them, or indeed in any other legislation, that in order for an official’s action to be admissible it must be directed against both the decision rejecting his candidature and the appointment decision.
(see paras 34-35, 44-45, 47)
See:
C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, para. 50
T‑526/08 P Commission v Strack [2010] ECR-SC, para. 45
2. See the text of the decision.
(see para. 39)
See:
76/79 Könecke Fleischwarenfabrik v Commission [1980] ECR 665, para. 15; 144/82 Detti v Court of Justice [1983] ECR 2421, para. 33
T‑84/91 Meskens v Parliament [1992] ECR II‑2335, para. 78; T‑166/04 C v Commission [2007] ECR-SC I‑A‑2-9 and II‑A‑2-49, para. 48
3. See the text of the decision.
(see paras 50-51)
See:
C‑449/99 P EIB v Hautem [2001] ECR I‑6733, para. 44; judgment of 27 April 2006 in C‑230/05 P L v Commission, not published in the ECR, para. 45; C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, para. 39 and the case-law cited therein
Judgment of 18 October 2010 in T‑516/09 P Marcuccio v Commission, not published in the ECR, para. 57
4. See the text of the decision.
(see para. 61)
See:
C‑244/91 P Pincherle v Commission [1993] ECR I‑6965, para. 25
5. In actions brought by officials, claims before the Union judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Union judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.
In order to assess whether heads of claim are based on the same matters as those raised in the complaint, the Union judicature may not base its decision solely on the fact that a plea in law seeks to challenge the substantive legality or, alternatively, the procedural legality of a contested measure.
A contrary interpretation of the rule that the application must correspond to the complaint could allow an applicant to rely, for the first time before the Union judicature, on a plea in law completely unconnected with those relied on in the complaint, where those pleas, taken together, relate either to the substantive legality or to the procedural legality of the measure in question. In those circumstances, the appointing authority would be apprised, in the complaint, of only some of the allegations against the administration. Not being in a position to know with sufficient certainty the complaints or requests of the person concerned, the appointing authority could not therefore seek an amicable settlement.
Furthermore, the fact that pleas in law contained in the application and the complaint seek to challenge the substantive or, alternatively, procedural legality of a measure does not, in itself, prove that those pleas may be regarded as being closely linked. The concepts of substantive legality and procedural legality are too broad and abstract, in view of the precise purpose of the head of claim in question, to ensure that such a link may exist between pleas based exclusively on one or other of those concepts.
(see paras 73, 75, 78-79)
See:
142/85 Schwiering v Court of Auditors [1986] ECR 3177, para. 11; 242/85 Geist v Commission [1987] ECR 2181, para. 9; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 10
T‑361/94 Weir v Commission [1996] ECR-SC I‑A‑121 and II‑381, para. 27
6. The implementation of the rule that the application must correspond to the complaint and its review by the Union judicature must guarantee full compliance with, first, the principle of effective judicial protection, which is a general principle of EU law laid down in Article 47 of the Charter of Fundamental Rights of the European Union, so that the official concerned may be in a position legitimately to challenge a decision of the appointing authority which adversely affects him, and, second, the principle of legal certainty, so that the appointing authority is in a position to know, at the complaint stage, the criticisms which the official concerned raises against the contested decision. Consequently, while it is necessary for the subject-matter and cause of action to remain the same between the complaint and the application in order to allow disputes to be settled amicably by informing the appointing authority, at the complaint stage, of the criticisms raised by the official concerned, the interpretation of those concepts must not have the effect of restricting the possibilities for the official properly to challenge a decision adversely affecting him. That is why the concept of the subject-matter of the dispute, which corresponds to the claims of the official concerned, and the concept of cause of action, which corresponds to the legal and factual basis of those claims, must not be interpreted restrictively.
In that context, merely changing the legal basis of a dispute is not sufficient for it to be regarded as having a new cause of action. There may be a number of legal bases supporting one and the same claim and, therefore, one and the same cause of action. In other words, the fact of relying, in the application, on an infringement of a specific provision which was not referred to in the complaint does not necessarily mean that the cause of action has thereby been changed. Regard must be had to the substance of the cause of action rather than merely to the wording of its legal bases, and the Union judicature must ascertain whether there is a close link between its bases and whether they relate in substance to the same claims.
(see paras 82-85)
7. In an action brought by an official, if the complainant is apprised of the reasoning for the act adversely affecting him through the response to his complaint, or if the reasoning for that response substantially alters or supplements the reasoning contained in that act, any plea in law put forward for the first time in the application and seeking to challenge the validity of the reasoning set out in the response to the complaint must be deemed admissible. In such situations, the official concerned has not been placed in a position to have precise and definitive knowledge of the reasons underlying the act adversely affecting him.
(see para. 86)
8. See the text of the decision.
(see para. 99)