(Officials – Enforcement of a judgment of the Court of First Instance – Action for annulment – No need to adjudicate – Action for damages – Breach of administrative duty – Loss of opportunity)

Application: first, for annulment of the implied decision to reject the applicant’s application for enforcement of a decision delivered by the Court of First Instance and, in so far as necessary, the decision to reject the applicant’s complaint of 12 February 2004, and, secondly, compensation for material and non-material damage allegedly suffered.

Held: There is no need to adjudicate on the claim for annulment. The Commission is ordered to pay the applicant, Mr C, the sum of EUR 15 000. The Commission is ordered to pay the costs.

Summary

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

(Art. 233 EC)

(Art. 233 EC; Staff Regulations, Art. 91)

1.In principle, the person to whom a judgment annulling an act of an institution is addressed is directly concerned with the way the institution implements the judgment. He is therefore entitled to request the Community judicature to rule on any failure by the institution to perform its obligations under the provisions applicable.

That does not apply, and there is no need to adjudicate, with regard to a claim for annulment submitted in an action contesting the way in which an institution has implemented a judgment annulling the rejection of the applicant’s application for a vacant post, where the applicant retired after the action was brought. The institution in question could not then re-examine the applicant’s application for the post concerned, so that the only implementing measure it could take would be to grant him compensation. However, where such an action also involves a claim for compensation, reference should be made, for the purpose of assessing the lawfulness of the conduct alleged against the institution, to the pleas and arguments advanced in the application for annulment.

(see paras 25-27, 29)

See: 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 Van der Stijl and Others v Commission [1989] ECR 511, para. 18; T‑148/96 and T‑174/96 Brognieri v Commission [1999] ECR-SC I‑A‑65 and II‑329, para. 22 and the case-law cited therein

2.The administration infringes Article 233 EC and commits a breach of administrative duty giving rise to liability on its part where, on the ground that a judgment is impossible to implement, it fails to adopt any measure at all to implement a judgment annulling a decision, and it even omits to take any action to explore a possible settlement with the applicant. If there are objective circumstances preventing the administration from implementing a judgment annulling a decision, its duty to have regard for the applicant’s welfare requires it to alert the applicant as soon as possible and to enter into dialogue with him in order to agree fair compensation for the harm suffered.

(see paras 49, 52)

See: T‑11/00 Hautem v EIB [2000] ECR II‑4019, para. 43 and the case-law cited therein

3.Where the administration commits a breach of administrative duty by failing to fulfil its obligation to implement a decision annulling the rejection of the applicant’s application for a vacant post, the additional pay and pension entitlements which the applicant would have earned if he had been appointed to the post in question may not be regarded as sufficiently certain harm to justify a right to compensation. Even had there been no unlawful act resulting in the annulment of the rejection of his application, the applicant had no guarantee that he would ultimately be appointed, that event being hypothetical in that it involves the exercise of the appointing authority’s wide discretion in matters of recruitment and promotion, both as to the consideration of the candidates’ comparative merits and as to the organisation of the procedure for recruiting its staff.

In non-material terms, the harm suffered as a result of the unlawful act committed by the administration is, on the other hand, both real and certain. In so far as the applicant’s merits were not duly taken into consideration, he was bound to suffer non-material damage resulting from the feeling of having lost, because of the administration’s unlawful conduct, an opportunity to obtain the post in question and to have his ability recognised. Since the administration did not take any steps to implement the judgment that would have allowed it to consider the applicant’s application under lawful conditions, the loss of opportunity which the applicant suffered became definitive and certain on the day of the refusal to implement the annulment decision.

The administration cannot rely in that context on case-law which has held that the annulment by the Community judicature of the decision resulting in such non-material damage is sufficient in principle to compensate for it. That consideration is based on the administration’s obligation to adopt measures to implement the judgment.

(see paras 66, 68, 70-72)

See: 126/75, 34/76 and 92/76 Giry v Commission [1977] ECR 1937, para. 28; T‑365/00 AICS v Parliament [2002] ECR II‑2719, paras 79 and 80