Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service – Officials – Promotion – 2003 promotion procedure – Compliance with a judgment of the Community judicature – Merit points withdrawn without any legal basis – Principle that Community measures may not have retroactive effect – Disregard for the principle of res judicata – Unlimited jurisdiction – Order made by the Tribunal of its own motion for the payment of compensation – Non-material damage)

Application: brought under Articles 236 EC and 152 EA, in which Mr Simões Dos Santos seeks annulment of, in particular, decision No PERS‑01‑07 of the President of OHIM of 6 June 2007 awarding him promotion points under the 2003 promotion procedure, decision ADM‑07‑17 of 6 June 2007 interpreting decision ADM‑03‑35 relating to the career and promotion of officials and members of the temporary staff, and the letter of 15 June 2007 from the appointing authority on the definitive awarding of 2007 promotion points.

Held: Decision No PERS‑01‑07 and OHIM’s letter of 15 June 2007 are annulled in so far as they imply that the balance of the applicant’s merit points has disappeared, as acknowledged by decision PERS‑PROM‑39‑03rev1 on promotion, of 30 March 2004. OHIM is ordered to pay the applicant the sum of EUR 12 000. The remainder of the application is dismissed. OHIM is ordered to bear its own costs and to pay three quarters of the applicant’s costs. The applicant is ordered to bear one quarter of his own costs.

Summary

1. Officials – Actions – Action for the annulment of a confirmatory decision – Inadmissibility – Condition – Confirmed decision to have become final

(Staff Regulations, Art. 91)

(Staff Regulations, Art. 90(2))

3. Actions for annulment – Judgment annulling a measure – Effects – Annulment of a Community measure because of inadequate legal basis – Adoption of a retroactive decision intended to cover the initial illegality – Exceptionally admissible – Conditions

(Art. 231, first para., EC)

4. Officials – Actions – Judgment annulling a measure – Effects – Obligation to implement – Scope

(Art. 233 EC)

6. Officials – Actions – Unlimited jurisdiction – Possibility for the Tribunal, on its own initiative, to order the defendant institution to pay compensation

(Staff Regulations, Art. 91(1))

1. An action by an official for the annulment of a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for lack of any challenge by legal action within the prescribed time-limits. Otherwise, that person is entitled to contest either the confirmed decision or the confirmatory decision or both.

(see para. 73)

See: T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECR‑SC I‑A‑227 and II‑723, para. 25; T-83/03 Salazar Brier v Commission [2005] ECR-SC I‑A‑311 and II‑1407, para. 17

(see para. 76)

See: T-10/94 Kratz v Commission [1995] ECR-SC I‑A‑99 and II‑315, paras 19 and 20; T-44/97 Ghignone and Others v Council [2000] ECR-SC I‑A‑223 and II‑1023, para. 39

3. Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. It is thus possible for the administration, following a disputed annulment, to adopt a measure with retroactive scope, provided that those conditions are satisfied.

A decision which, following the annulment by the Community judicature of an administrative decision for lack of a legal basis, has retroactive scope is thus unlawful where the purpose relied on by the institution did not justify that retroactive effect and where the legitimate expectations of the persons concerned by that measure were not respected.

(see paras 100, 101, 104-106, 113, 117)

See: C-368/89 Crispoltoni [1991] ECR I‑3695, para. 17

4. Under Article 233 EC, in order to comply with the judgment annulling a measure and to implement it fully, the institution which adopted the measure is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. Moreover, Article 233 EC requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act.

An institution which, in order to implement a judgment annulling a measure, gives an interpretation of that measure which is directly contrary to that given by the Community judicature in that judgment thus infringes the principle of res judicata.

(see paras 120, 124)

(see para. 133)

See: T-22/99 Rose v Commission [2000] ECR-SC I‑A‑27 and II‑115, para. 37

6. In order to ensure that an annulling judgment the implementation of which presents particular problems has a practical effect, the Community judicature may use its unlimited jurisdiction in proceedings concerning pecuniary matters and order, even, if necessary, on its own initiative, the defendant party to pay compensation for damage caused by its breach of administrative duty.

(see paras 142, 144)

See: F-46/07 Tzirani v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 214