JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

Commission of the European Communities

(Staff case – Article 29(1) of the Staff Regulations – Permanent post remunerated on research and investment credits – Temporary agent within the meaning of Article 2(d) of the CEOS – Rejection of application – No consideration of comparative merits – Interim judgment)

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Application: for, first, annulment of the Commission’s decision of 13 March 2001 rejecting seven applications for permanent posts remunerated on research credits, secondly, annulment of the Commission’s decision of 15 March 2001 rejecting one application for a permanent post remunerated on research credits and, thirdly, annulment of the Commission’s decisions making appointments in respect of those posts.

Held: The Commission’s decision of 13 March 2001 rejecting Mrs Girardot’s application for seven permanent posts remunerated on research credits is annulled. The Commission’s decision of 15 March 2001 rejecting Mrs Girardot’s application for a permanent post remunerated on research credits is annulled. For the rest the application is dismissed. The parties are ordered to provide to the Court within a period of three months of delivery of this judgment either an agreed amount of monetary compensation attaching to the decisions of 13 and 15 March 2001 or their submissions, with figures, on that amount. Costs are reserved.

Summary

(Staff Regulations, Arts 4 and 29(1))

(Staff Regulations, Art. 91(1))

(Staff Regulations, Art. 91(1))

However, where permanent posts remunerated on research credits are to be filled in the Commission, their vacancies are published in a ‘research special vacancy’ notice pursuant to Articles 4 and 29(1)(a) of the Staff Regulations, candidatures are received only from members of the temporary staff as defined in Article 2(d) of the Conditions of Employment of Other Servants of the European Communities, and those candidatures satisfy the prescribed conditions of admission, the Commission is not entitled to reject the candidature of a member of the temporary staff without even examining it.

(see paras 58-59)

See: 10/82 Mogensen and Others v Commission [1983] ECR 2397, para. 10; C174/99 P Parliament v Richard [2000] ECR I-6189, paras 39 and 40; T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] ECR-SC I-A-193 and II‑987, paras 38 and 39

(see para. 62)

See: T-25/90 Schönherr v ESC [1992] ECR II-63, para. 25; T-143/98 Cendrowicz v Commission [1999] ECR-SC I-A-273 and II-1341, para. 59

However, where restoring the position prior to the annulled act involves the annulment of subsequent acts but which relate to third parties, that resulting annulment will be ordered only if it does not appear excessive, particularly in the light of the nature of the unlawful act committed and the interests of the service.

The principles of proportionality and the protection of legitimate expectations make it necessary to reconcile the interests of the applicant, who has been the victim of the unlawful act, to have his rightful position restored, and the interests of third parties, whose legal position may have led them to entertain legitimate expectations. Various operations following on from the procedures provided for in Article 29(1) of the Staff Regulations, such as placing a successful candidate in a competition on a reserve list, promoting an official or appointing an official to a vacant post, may be regarded as creating a legal position which the person concerned may legitimately expect to be lawful.

(see paras 84-86)

See: 22/70 Commission v Council [1971] ECR 263, para. 60; 24/79 Oberthür v Commission [1980] ECR 1743, paras 11 and 13; 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, para. 30; C-242/90 P Commission v Albani and Others [1993] ECR I-3839, paras 13 and 14; C‑119/94 P Coussios v Commission [1995] ECR I-1439, para. 24; T-18/92 and T‑68/92 Coussios v Commission [1994] ECR-SC I-A-47 and II-171, para. 105; T‑159/96 Wenk v Commission [1998] ECR-SC I-A-193 and II-593, para. 121; T‑357/00, T-361/00, T-363/00 and T-364/00 Martínez Alarcón v Commission [2002] ECR-SC I-A-37 and II-161, para. 97; T-372/00 Campolargo v Commission [2002] ECR-SC I-A-49 and II-223, para. 109

(see para. 89)

See: Oberthür v Commission, para. 14; Commission v Albani and Others, para. 13; Coussios v Commission, para. 107; Wenk v Commission, para. 122