JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

28 October 2010

Case F-23/09

Maria Concetta Cerafogli

v

European Central Bank (ECB)

(Civil service — ECB staff — Appointment of a member of staff on an acting basis — Notice of vacancy — Act adversely affecting an official — Placed on leave on account of disability — Legal interest in bringing proceedings)

Application: brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EC Treaty, in which Ms Cerafogli seeks annulment, first, of the ECB’s decision of 17 July 2008 appointing a member of staff as an acting adviser, second, of vacancy notice ECB/074/08 published with a view to filling that post, and third, of the decision of 20 November 2008 appointing Mr L. to that post; in addition, she seeks an order for the ECB to pay her damages.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1.      Officials — Staff of the European Central Bank — Actions — Act adversely affecting an official — Definition — Decision to appoint on an acting basis not directly and immediately affecting the applicant’s interests — Not included

(Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36.2; Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Interest in bringing proceedings

3.      Officials — Actions — Act adversely affecting an official — Vacancy notice — Conditions excluding officials eligible for transfer or promotion — Admissibility

(Staff Regulations, Arts 29, 90 and 91)

4.      Procedure — Costs — Taxation — Recoverable costs — Definition

(Staff Regulations, Arts 90 and 91)

1.      The case-law relating to the Staff Regulations of Officials, according to which only measures which produce binding legal effects such as to affect the interests of an applicant directly and immediately by bringing about a distinct change in his legal position constitute acts having an adverse effect which may be the subject of an action for annulment, should be applied by analogy to actions brought by staff of the European Central Bank pursuant to Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank.

A decision to appoint on an acting basis may not be regarded as such a measure where the person concerned is not an immediate colleague on the same hierarchical level as the member of staff appointed pursuant to that decision.

(see paras 34, 36-37)

See:

48/70 Bernardi v Parliament [1971] ECR 175, para. 27; 346/87 Bossi v Commission [1989] ECR 303, para. 23

F‑13/05 Corvoisier and Others v ECB [2006] ECR-SC I‑A‑1‑19 and II‑A‑1‑65, para. 40; judgment of 13 January 2010 in F‑124/05 and F‑96/06 A and G v Commission, para. 229

2.      Every applicant must, at the time when an action is brought, have a sufficiently clear, vested and present interest in having the contested decision set aside, which means that the action must be capable, by its outcome, of conferring on him an advantage.

The fact that the person concerned was on sick leave at the time when a decision was taken to appoint one of his colleagues on an acting basis is not, in principle, capable of depriving that person of an interest in seeking the annulment of that decision.

However, the case is different where the person’s return to work is uncertain. In those circumstances, and even if it is still possible that the person might one day return to work, the annulment of the decision would not confer on that person any sufficiently clear advantage.

(see paras 39-41)

See:

167/86 Rousseau v Court of Auditors [1988] ECR 2705, para. 7

T-310/00 MCI v Commission [2004] ECR II‑3253, para. 44

3.      Where an official is eligible to fill, by transfer or promotion, a post referred to in a vacancy notice, that notice constitutes an act adversely affecting that official if the conditions it lays down have the effect of excluding his candidature.

(see para. 47)

See:

79/74 Küster v Parliament [1975] ECR 725, para. 6; 25/77 De Roubaix v Commission [1978] ECR 1081, para. 8

Corvoisier and Others v ECB, para. 42; F-91/07 Torijano Montero v Council [2009] ECR-SC I‑A‑1‑253 and II‑A‑1‑1367, para. 27

4.      The logic of the pre-litigation procedure provided for in Articles 90 and 91 of the Staff Regulations is that an official should not be represented at that stage, in return for which the administration must not interpret complaints restrictively but must, on the contrary, consider them with an open mind. Consequently, in proceedings concerning the taxation of costs, save in exceptional circumstances, fees owed for services provided by a lawyer in the prelitigation procedure do not constitute recoverable costs.

(see para. 63)

See:

T-34/03 Hecq v Commission [2004] ECR-SC I‑A‑143 and II‑639, para. 21 and the case-law cited therein