JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

5 June 2014

Case T‑269/13 P

Markus Brune

v

European Commission

(Appeal — Civil service — Officials — Recruitment — Open competition — Non-inclusion on the reserve list — New decision of the Commission adopted following annulment by the Civil Service Tribunal — No participation in the oral test)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 21 March 2013 in Brune v Commission (F‑94/11), seeking to have that judgment set aside.

Held:      The appeal is dismissed. Mr Markus Brune is to bear his own costs and is ordered to pay those incurred by the European Commission in the present proceedings.

Summary

1.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of the decision of a competition selection board not to include a candidate on the reserve list — Reopening of the competition solely vis-à-vis the applicant — Adequate method of compliance

(Art. 266 TFEU; Staff Regulations, Arts 27 and 29(1), second para.)

2.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of the decision of a competition selection board not to include a candidate on the reserve list — Reopening of the competition solely vis-à-vis the applicant — Obligations of the selection board and the appointing authority

(Art. 266 TFEU)

3.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Administration’s discretion — Possibility of establishing a dialogue with the victim

(Art. 266 TFEU)

1.      Following a judgment annulling a measure, where the implementation of the judgment 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.

In that regard, in an open competition organised in order to establish a reserve pool for recruitment where the tests have been invalidated, the organisation of a new test may, under certain conditions, provide the person concerned with due compensation for the illegality he has suffered, even if it does not eliminate the irregularity.

However, the direct inclusion of the person concerned on the reserve list would infringe not only the principles of equal treatment and objective marking and the competition notice, but also Article 27 of the Staff Regulations, which states that the purpose of any recruitment procedure is to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity. It is true that there is no provision of the Staff Regulations which specifies the method for assessing candidates’ ability. The Staff Regulations do, however, lay down the method for recruiting officials. The second paragraph of Article 29(1) of the Staff Regulations states that officials are to be recruited by ‘competitions on the basis either of qualifications or of tests, or of both qualifications and tests’, the procedure for which is laid down in Annex III of the Staff Regulations. It is thus expressly clear from Article 27 of the Staff Regulations, in combination with Article 29, that officials are to be recruited by means of competitions, under the conditions laid down in Annex III of the Staff Regulations, in order to select candidates with highest standard of ability, efficiency and integrity.

(see paras 25, 29, 60, 64)

See:

T‑84/91 Meskens v Parliament [1992] ECR II‑2335, para. 80; T‑91/95 De Nil and Impens v Council [2006] ECR-SC I‑A‑327 and II‑959, para. 34

2.      Where the institution concerned decides, in order to comply with a judgment annulling a decision not to include the applicant on the reserve list, to reopen the competition procedure and to organise a new test for the person concerned, it is for the appointing authority and the selection board strictly to ensure that the level of the tests and the assessment criteria are equivalent to those in the original competition, in order to guarantee observance of the principles of equal treatment and objective assessment of the person concerned in relation to the other competition candidates.

(see para. 40)

See:

Meskens v Parliament, para. 79

3.      It is for the administration, in the exercise of the discretion conferred on it by Article 266 TFEU, to choose between the various possible measures which are consistent with the grounds of the annulling judgment and with the principles and rules of EU law, in order to reconcile the interests of the service and the need adequately to protect the rights of the victim of an unlawful measure. The Union judicature may not, therefore, assume the role of the administrative authority in determining the specific measures which the administration should have adopted.

Since the administration acts unilaterally, the administration is able, but not obliged, to establish a dialogue with that victim in order to reach an agreement offering him fair compensation.

(see paras 51, 52)

See:

Meskens v Parliament, paras 78 and 79