JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

9 December 2010

Case T-526/08 P

European Commission

v

Guido Strack

(Appeal — Cross-appeal — Civil service — Officials — Recruitment — Notice of vacancy — Rejection of candidature — Appointment to a post of head of unit — Action for annulment — Admissibility — Interest in bringing proceedings — Action for damages — Non-material damage)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 25 September 2008 in Case F-44/05 Strack v Commission [2008] ECR-SC I-A-1-303 and II-A-1-1609 seeking to have that judgment set aside in part. Cross-appeal brought by Mr Strack.

Held: Paragraphs 1, 2, 3, 5 and 6 of the operative part of the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 25 September 2008 in Case F-44/05 Strack v Commission are annulled. The cross-appeal is dismissed as to the remainder. The case is referred back to the Civil Service Tribunal for a ruling on the claims for annulment of the decision to appoint Mr A. to the post of head of the ‘Calls for tenders and contracts’ unit of the Office for Official Publications of the European Communities and the decision to reject Mr Guido Strack’s candidature for that post, on the claims for compensation for non-material damage purportedly suffered by Mr Strack in the sum of EUR 2 000, and on costs. Costs are reserved.

Summary

1.      Appeal — Interest in bringing proceedings — Examination by the General Court of its own motion

(Statute of the Court of Justice, Annex I, Art. 10)

2.      Officials — Actions — Interest in bringing proceedings — Action directed both against the rejection of a candidature for a vacant post and against the appointment of another official — Single overall assessment of the interest in bringing proceedings where decisions are indissociable

(Staff Regulations, Arts 90 and 91)

3.      Officials — Actions — Claim for damages linked to a claim for annulment

(Staff Regulations, Arts 90 and 91)

4.      Officials — Actions — Action for damages — Annulment of the illegal act in dispute — Adequate and, in principle, full compensation for non-material damage

(Art. 233, first para., EC; Staff Regulations, Arts 90 and 91)

5.      Officials — Actions — Interest in bringing proceedings — Action directed against the rejection of a candidature for a vacant post

(Art. 233, first para., EC; Staff Regulations, Arts 53 and 78)

6.      Officials — Actions — Jurisdiction of the Community judicature — Report of the conduct of a party to the competent criminal authorities — Lack of jurisdiction

7.      Officials — Actions — Action for damages — Late notification of a decision adversely affecting an official — Maladministration

(Staff Regulations, Arts 90 and 91)

8.      Officials — Actions — Action for damages — Annulment of the contested measure not adequate compensation for non-material harm — Non-material harm caused by damage to the official’s honour, dignity, self-esteem or good name

(Staff Regulations, Arts 90 and 91)

1.      The General Court may of its own motion raise the objection that a party has no interest in maintaining an appeal on the ground that an event subsequent to the judgment of the Civil Service Tribunal removes the prejudicial effect thereof as regards the appellant, and declare that there is no need to adjudicate on the appeal for that reason. The fact that the appellant has an interest in bringing the proceedings assumes that the appeal is likely, if successful, to procure an advantage to the party bringing it.

(see para. 44)

See: C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, para. 13; C‑111/99 P Lech-Stahlwerke v Commission [2001] ECR I‑727, para. 18; T‑147/04 Ross v Commission [2005] ECR-SC I‑A‑171 and II‑771, para. 25 and the case-law cited therein

2.      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, a single, overall assessment must be made of the applicant’s interest in obtaining annulment of those decisions where the two decisions are indissociable. It is an error of law to assess the official’s interest in bringing proceedings for the annulment of the decision to reject his candidature specifically and separately from his interest in seeking the annulment of the appointment decision.

(see paras 45-46)

See: 131/82 Angelini v Commission [1983] ECR 2801, opinion of Advocate General Mancini, p. 2820, and the case-law cited therein; C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, para. 46

3.      Where claims for annulment and compensation share the same aims, reference should be made, for the purpose of assessing the lawfulness of the conduct alleged against an institution in the claim for compensation, to the pleas in law and arguments relied on in support of the claim for annulment of the contested decisions.

In so far as the purpose of the claim for annulment is indissociable from that of the claim for compensation, the rejection of the claim for annulment as inadmissible because the applicant has no interest in bringing proceedings would not have the effect of denying the Union judicature the possibility of referring, where appropriate, to the pleas in law and arguments relied on in support of that claim in order to assess the lawfulness of the conduct alleged against the institution in the claim for compensation.

(see para. 50)

See: T-166/04 C v Commission [2007] ECR-SC I-A-2-9 and II-A-2-49, para. 29

4.      Having regard to the appointing authority’s obligation to adopt measures to comply with a judgment, which follows from the first paragraph of Article 233 EC, the annulment of an act of the administration contested by an official appears, in itself, to be adequate and, in principle, sufficient compensation for any non-material damage which that official may have suffered, unless he shows that he suffered non-material harm separate from the illegality providing grounds for the annulment and not capable of being fully compensated by that annulment.

(see paras 58, 99)

See: C‑343/87 Culin v Commission [1990] ECR I‑225, paras 26-29; T‑10/02 Girardot v Commission [2006] ECR-SC I‑A‑2‑129 and II‑A‑2‑609, para. 131; C v Commission, paras 69-73

5.      An official with total permanent invalidity who has been automatically retired pursuant to Articles 53 and 78 of the Staff Regulations is in a reversible situation, since he may one day resume his duties within a Union institution. The evolution of his position within the institutions is subject to the continued existence of the conditions which justified that invalidity, which can be reviewed at regular intervals.

Such an official retains an interest in seeking, in the context of the selection procedure to fill a vacant post in which he was admitted to participate, annulment of the decision rejecting his candidature and the decision to appoint another candidate, in order to be able to continue to aspire to the post in question should he return to work, or even merely to ensure, in such a case, that the illegalities he alleges regarding the conduct of the selection procedure do not happen again in future in a similar procedure in which he might be prompted to take part. That interest in bringing proceedings follows from the first paragraph of Article 233 EC, under which the institutions whose act has been declared void are required to take the necessary measures to comply with the judgment.

That must always be true except in certain particular cases where an examination of the actual situation of an official declared to be in a state of invalidity shows that he is no longer capable of one day returning to work within an institution, having regard to, for instance, findings of the Invalidity Committee responsible for examining his degree of invalidity, showing that the illness which led to the invalidity is permanent and that no medical review will therefore be necessary, or statements by the official concerned indicating that he will not, in any event, be returning to work within an institution.

(see paras 69-71)

See: Wunenburger v Commission, paras 50 and 51 and the case-law cited therein; C‑198/07 P Gordon v Commission [2008] ECR I‑10701, paras 46 and 47; Ross v Commission, paras 9 and 32; T-250/04 Combescot v Commission [2007] ECR‑SC I-A-2-191 and II-A-2-1251, paras 27 and 29

6.      The rules governing the procedure before the Civil Service Tribunal do not provide for any legal remedy allowing a party to an action before it to bring incidentally before it a request for the Tribunal to find that the conduct adopted during the proceedings by the other party to the action may be characterised as criminal, to decide that that conduct must be reported to the competent criminal authorities, and to lodge a complaint with those authorities, and requiring it, a fortiori, to rule on that request in order to avoid committing a denial of justice. That is without prejudice to the possibility for a party which regards itself as the victim of such conduct to ask the Civil Service Tribunal, under the powers it enjoys under Article 30(4) of its Rules of Procedure, to waive the immunity of the parties’ representatives before it in respect of words written or spoken by them concerning the case or the parties, in order to refer the conduct to the competent criminal authorities.

The rules governing the procedure before the General Court concerning appeals against decisions of the Civil Service Tribunal also do not provide for any legal remedy allowing a party in the proceedings at first instance to bring before it a request that it should find that the conduct adopted at first instance by the other party in the proceedings may be characterised as criminal, and that it should decide to report that conduct to the competent criminal authorities. Likewise, a fortiori, those rules do not require a ruling to be given on such a request in order to avoid committing a denial of justice.

(see paras 82, 124)

7.      An extended delay by the administration in the drawing up or notification of a decision adversely affecting an official does not, in itself, constitute an act adversely affecting him which may be annulled, but maladministration capable of giving rise to non-material damage for that official, where that fact has led him to feel uncertain or concerned about the recognition of his rights and his professional future.

(see para. 103)

See: T‑11/00 Hautem v EIB [2000] ECR II‑4019, para. 51 and the case-law cited therein; T‑274/04 Rounis v Commission [2005] ECR-SC I‑A‑407 and II‑1849, para. 51 and the case-law cited therein; T-308/04 Ianniello v Commission [2007] ECR-SC I-A-2-215 and II-A-2-1405, para. 100 and the case-law cited therein

8.      Expressly negative assessments of an official’s professional abilities or serious accusations made publicly against an official in an act adversely affecting him or in a procedure culminating in such an act are capable of giving rise, for that official, to non-material harm separate from that act where they damage his honour, dignity, self-esteem or good name.

(see para. 108)

See: Culin v Commission, paras 27-29; T‑307/01 François v Commission [2004] ECR II‑1669, para. 110